N.B.C. PLC v. EKPO (2020)

N.B.C. PLC v. EKPO

(2020)LCN/14826(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, December 02, 2020

CA/C/128/2018

RATIO

FAIR HEARING: HOW IS THE QUESTION ON WHETHER A PARTY HAD BEEN DENIED HIS RIGHT TO FAIR HEARING BE JUDGED

It is trite that the question on whether a party had been denied his right to fair hearing is to be judged from the nature and the circumstances surrounding the particular case, the crucial determinant being the necessity of affording the parties equal opportunity of being heard. See, Zenith Plastics Ind. Ltd vs. Samotech Ltd (2019) ALL FWLR (pt. 972) 295. Fair hearing is so basic, to the extent that a denial of the right, renders the proceedings and or any action taken thereto void, and a nullity. See Zenith Plastics Ind. Ltd vs. Samotech Ltd (supra), PDP vs. Ezeonwuka (2019) ALL FWLR (pt. 987) 747 @ 779, University of Ilorin vs. Obayan (2019) ALL FWLR (pt. 991) 96 @ 102 – 103. PER BARKA, J.C.A.

LABOUR LAW: DUTY OF AN EMPLOYER TO AN EMPLOYEE ACCUSED BY HIS EMPLOYER OF MISCONDUCT

A calm understanding of the decisions in University of Calabar vs. Essien (1996) 10 NWLR (pt. 447) 225 @ 262 and Imonikhe vs. Unity Bank Plc (2011) 12 NWLR (pt. 1262) 624 @ 643, is that an employee accused by his employer of misconduct, must first of all issue a query to the employee to answer before taking any action on the employment of the employee. PER BARKA, J.C.A.

LABOUR LAW: HOW IS THE EMPLOYMENT OF AN EMPLOYEE DETERMINED WHETHER IT WAS CORRECT OR WRONG

The case of Eze vs Spring Bank Plc (2011) 48 NSCQR 125, which provided that:
“To determine whether the employment of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is a departure from the prescribed procedure or a violation of the elementary rule of natural justice, then the dismissal is unlawful” PER BARKA, J.C.A.

DOCUMENT: THE PRINCIPLE OF DOCTRINE OF INCORPORATION BY REFERENCE

The principle of doctrine of incorporation by reference is one that is frequently applied in the construction of documents or documents produced by the parties, and where it is clear that some other evidence must have been in the contemplation of the parties. In such a case the document put forward compels the Court to look beyond and to ascertain precisely the other evidence which by necessary implication the parties must have had in their minds at the time of the contract. See Collins Iwuoha vs. NRC (1997) LPELR – 1570 (SC), Golden Construction Co. Ltd vs. Stateco (Nig) Ltd (2014) 8 NWLR (pt. 1408) 171. PER BARKA, J.C.A.
ACTION: EFFECT OF WHERE ANY ACT TO BE DONE IS SUBJECTED TO A CONDITION PRECEDENT

It is trite law that where any act to be done is subjected to a condition precedent, such action must await the fulfillment of that condition precedent. In Ibama vs. Shell Petroleum Company of Nigeria Ltd (2012) NILR 75 @ 80, it was held that:
“…where however the right to determine the contract by notice depends upon the performance of a condition precedent, the party seeking to exercise its right of determining the contract must first establish that the prescribed condition precedent has been fulfilled”.
This also applies to contract of employment as in the instant case. PER BARKA, J.C.A.

LABOUR LAW: WHETHER THE COURT CAN SET ASIDE A DISMISSAL BY AN EMPLOYER IN A MASTER SERVANT RELATIONSHIP

The law is settled in that in a master servant relationship, a dismissal by an employer cannot be set aside by a Court of law on the premise that the Court cannot impose a servant on an unwilling master. See Osisanya vs. Afribank Nigeria Plc (2007) LPELR-2809 (SC). PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

NIGERIAN BOTTLING COMPANY PLC APPELANT(S)

And

MOSES ETIM EKPO RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria, Calabar Judicial Division, delivered on the 31/5/2017, wherein judgment was entered for the respondent, the Court having concluded that:
Now the Supreme Court in considering this scenario held that the Appellant having initiated criminal proceeding in this matter are bound to await the outcome of the trial before rekindling their disciplinary actions.
What this means is that a defendant or employer who reports his employee to the police in a criminal charge is required to await the conclusion of the criminal proceeding before he can take any further step in their internal disciplinary measures. It is on that ground that I find the Defendants action in dismissing the Claimant, wrongful.
This Court has held that a verdict of a discharge is a favourable termination of a case for recall. See the case of SUIT NO. NIC/LA/117/2011 MR. BABATUNDE Vs. DANA MOTORS LIMITED.
In consequence of that, the claimant is entitled to only the following declarations and orders.”

It should be recalled that

the respondent on the 5th of March, 2018 commenced this suit, when he filed a writ of summons accompanied with a statement of claim, wherein he sought for the following reliefs:
i. A declaration that the dismissal of the claimant from the services of the defendant was wrongful.
ii. N7 million general damages from wrongful termination of employment.
iii. Cost of this action.

In response to the claim by the claimant, the defendant filed a statement of defense, wherein it denied all allegations of fact in the statement of claim, and also counterclaimed seeking for the following reliefs:
i. A declaration that the claimant is indebted to the defendant/counterclaimant to the tune of N21,159.31 (Twenty One Thousand, One Hundred and Fifty Nine Naira, Thirty one Kobo) being the amount remaining unpaid by the Claimant by virtue of the loan advanced to the Claimant by the Defendant/Counter-claimant.
ii. A DECLARATION that the Claimant is indebted to the Defendant to the tune of N2,240.20 (Two Thousand, Two Hundred and Forty Naira, Twenty kobo) being the amount of tax payable by the Claimant as tax deduction on the amount payable to the

Claimant.
iii. AN ORDER of this Honourable Court mandating the Claimant/Defendant to counter-claim to pay the sum of N21,159.31 (Twenty-one Thousand, One Hundred and Fifty Nine Naira, Thirty one Kobo) to the Defendant/Counter-claimant being the amount remaining unpaid by the Claimant by virtue of the loan advanced to the Claimant by the Defendant/Counter-claimant.
iv. AN ORDER of this Honourable Court mandating the Claimant/Defendant to Counter-claim to pay the sum of N2,240.20 (Two Thousand, Two Hundred and Forty Naira, Twenty kobo) to the Defendant/Counter-Claimant, being the amount of tax payable by the Claimant as tax deduction on the exit benefits payable to the Claimant.
v. Cost of this action in the sum of N500,000.00 only.

The claimant before the lower Court now respondent was an employee of the appellant herein as a sales assistant before the unfortunate incident leading to the present appeal. Based on the allegation of theft leveled against the respondent by the depot Manager, respondent was dismissed from the employment of the appellant. The respondent however claimed that his dismissal was in contravention of the provisions of

the code of conduct and grievance procedure of the appellant. It was averred by the respondent that appellant made an official report to the police, leading to his prosecution at the Magistrate Court, Calabar, which dismissed the charges against him on the 21st of February, 2014, but the appellant refused to pay the respondent his full emoluments.

The respondent testified and was recorded as Cw1, in the course of which exhibits C1 – C10 were tendered in Court. The appellant on its part counterclaimed against the respondent for the sums of Twenty one thousand, One hundred and fifty one Naira, thirty one kobo and two thousand, two hundred and forty Naira, twenty kobo being the balance of the loan advanced to the respondent in the course of his employment. Two witnesses testified for the appellants and a total of eight witnesses, titled exhibit D1 – D8 and exhibit D81, were tendered.

At the close of hearing and written addresses, the lower Court delivered the vexed judgment on the 31st of May, 2017, to the effect that the termination of the respondent’s appointment with the appellants was wrongful, and the respondent entitled to the

backlog of his salary from the date of his dismissal to the date of the dismissal of the charges against him by the Magistrate Court.

Dissatisfied with the judgment of the trial Court, appellant on the 19/1/18 and the 26/1/18 filed Notices of Appeal. The extant notice of appeal is that filed on the 26/1/18 anchored on seven grounds of appeal. The record of appeal was dutifully transmitted to this Court on the 16th of March, 2018, and consequent upon which the appellant filed a brief of argument on the 30th of April, 2018. Appellant also filed a reply brief on the 19th of June, 2018. The respondent on his part filed respondents brief on the 25th of May, 2018. When the appeal eventually cropped up for hearing on the 7th of October, 2020, parties identified the processes filed by them, adopted the same in urging the Court to grant their respective prayers.

In the appellant’s brief settled by Tonye Krukrubo, and specifically at page 6 thereof, six issues were isolated for resolution as follows:
1. Whether, in view of Exhibit D5, the trial Court was right when it held that the Respondent was not afforded fair hearing before he was dismissed from

the Appellant’s employment (Distilled from ground 1 of the Notice of Appeal).
2. Whether the trial Court was right, having regard to the circumstances of this case, when it held that Exhibit D4, not being signed, is a worthless document (Distilled from ground 2 of the Notice of Appeal).
3. Whether the trial Court was right when it held that the Appellant ought to have awaited the conclusion of the criminal proceeding brought against the Respondent before dismissing the Respondent from its employment. (Distilled from ground 3 of Notice of Appeal).
4. Whether the trial Court was right when it awarded the sum of N2,000,000.00 (Two Million Naira) to the Respondent under Section 19 of the National Industrial Court of Nigeria Act, 2006 for wrongful termination of employment. (Distilled from ground 4 of Notice of Appeal).
5. Whether the trial Court was right when it granted to the Respondent orders which he did not seek. (Distilled from ground 5 of Notice of Appeal).
6. Whether the trial Court was right when it failed to make any finding or pronouncement on all the issues submitted to it by the Appellant. (Distilled from ground 6 of

Notice of Appeal).

The Respondent on his part and in the brief settled by A. A. Ananah with F. E. Duke, particularly at pages 4-5, six issues were also identified for resolution as follows:
1) Whether the procedure adopted in dismissing the Claimant/Respondent from his employment violates the rules of natural justice and the condition of service of the Respondent (Distilled from Ground 1 of the Notice of Appeal).
2) Whether the conclusion of the learned trial Judge that Exhibit D4 not being signed, is a worthless document is justified in law (Distilled from Ground 2 of the Notice of Appeal).
3) Whether the dismissal of the Respondent after reporting the case of alleged stealing against the Respondent without waiting for the conclusion of Police investigation on the matter was in compliance with the terms of employment of the Respondent (Distilled from Ground 3 of the Notice of Appeal).
4) Whether under the provisions of the National Industrial Court Act, 2006, the award of lump sum of N2,000,000 (Two Million Naira) only to Respondent was justified (Distilled from Ground 4 of the Notice of Appeal).
5) Under the National Industrial

Court Act, 2006, was the learned trial Judge justified in awarding any relief which the Respondent was entitled to in the suit before the Court (Distilled from Ground 5 of the Notice of Appeal).
6) Whether having regard to the intertwined and interwoven nature of the claim and the counter-claim, the success of the Respondent’s claim, did not render the Appellant’s counter-claim useless (Distilled from Ground 6 of the Notice of Appeal).

I have in the circumstance keenly studied the submissions of the learned counsel and the record of proceedings. My candid view on the two set of issues is that they are the same. In the resolution of the instant appeal, I elect to be guided by the issues formulated by the appellant being the complainants in the appeal, and intend to treat the issues seriatim.

Before venturing to deal with the issues being agitated upon, let me consider, albeit very briefly, the preliminary point raised by the appellant in his reply brief, at pages 2 – 4 of the said brief. I have in so many occasions deprecated the practice of raising preliminary objections in reply briefs. It is the law that a reply brief is

meant to respond to new points of law raised in the respondents brief, and not to raise new issues, which the respondent cannot respond to. Having said so, I must discountenance the preliminary point raised. In any case, a sober examination of the process being complained of, shows that even though the names of A. A. Annah and F. E. Duke, appeared as respondent’s counsel, A. A. Annah signed the process, and also filed in his NBA payment receipt in satisfaction of the Legal Practitioners Direction. The objection is hereby discountenanced.
I will now proceed to consider the appeal on the basis of the issues formulated by the appellant, treating the issues seriatim.

Issue One.
Whether in view of exhibit D5, the trial Court was right when it held that the respondent was not afforded fair hearing before he was dismissed from the appellant’s employment.
It is the submission of learned counsel for the appellant, that appellant obtained a written representation from the respondent (exhibit D5) before he was dismissed in conformity with the principles of natural justice. He referred to the case of Imonikhe vs. Unity Bank Plc (2011) 12

NWLR (pt. 1262) 624 @ 648, where the Court held that:
“Where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answered the respondents query before he was dismissed from his employment” and,
contended that the holding of the lower Court that respondent was not afforded fair hearing because he was not afforded a hearing session, and further that exhibit D4 contravened the principles of fair hearing was in prior. He submitted that even though the respondent was not given a hearing session, the fact that appellant gave the respondent the opportunity to be heard having obtained a written representation, i.e. exhibit D5, before being dismissed on the 16th of July, 2011, amounted to the respondent being afforded fair hearing, and the trial Court wrong to have held otherwise.

While urging the Court to resolve the issue in favor of the respondent, it was argued that the respondent was not queried and his reply thereto

received, thus violating his right to fair hearing. Counsel argued that where the basis of the accusation is a written report, the employee should be granted a copy of the report relevant to his accusation, and where that is not done, the proceedings arising there from cannot be said to be fair or valid. He submitted that the report containing the accusation levied against the respondent was not given to him and thereby breached his fundamental right.

Still submitting, counsel argued that the procedure adopted in dismissing the respondent from his employment violated the respondent’s condition of service with the appellant. He referred to the provision of Section 19 of the junior staff Handbook, the code of conduct and Grievance procedure which provides for the setting up of a disciplinary panel as well as the disciplinary procedure to be adopted, contending that none was followed in the present case. He opined that respondent was not called before any panel as evidenced by the Dw2, and thereby denied fair hearing before his dismissal.

Learned counsel proceeded to argue that pages 7 and 8 of the appellant’s Junior Staff Handbook having

made provision that:
An employee who has been arrested and is held in detention by the police on a criminal charge shall be suspended from duty and his pay stopped immediately whether or not such criminal charge arises from a report from the company…

The dismissal of the respondent when the allegation against him was being investigated clearly violated the above provision.
He contended that the report written by the respondent does not amount to having been heard and thereby negated the solemn principles of natural justice.

On points of law, it was submitted that respondents submission is unfounded and in clear variance with the terms of Exhibit C9-C9.80. It was then argued that at no where in the exhibits was it stated that where the appellant lodges a report against the respondent, it can only suspend the respondent and not to dismiss him. He argued that by Section 3 of part 1 of exhibit C9-C9.80, an employer who has been arrested and held in detention by the police on a criminal charge shall be suspended from duty and his pay stopped immediately… He contended that a mere report to the police cannot be translated to mean

arrested or held in detention, thus Section 3 of exhibit C9-C9.80 is inapplicable. On the case of Eze vs. Spring Bank (supra), relied upon by the respondent, learned counsel submitted that appellant duly complied with the terms of employment of the respondent.

The question agitated upon in this issue relates to the holding of the lower Court, to the effect that respondent was denied fair hearing in the procedure adopted by the appellant in dismissing him from his employment. It is trite that the question on whether a party had been denied his right to fair hearing is to be judged from the nature and the circumstances surrounding the particular case, the crucial determinant being the necessity of affording the parties equal opportunity of being heard. See, Zenith Plastics Ind. Ltd vs. Samotech Ltd (2019) ALL FWLR (pt. 972) 295. Fair hearing is so basic, to the extent that a denial of the right, renders the proceedings and or any action taken thereto void, and a nullity. See Zenith Plastics Ind. Ltd vs. Samotech Ltd (supra), PDP vs. Ezeonwuka (2019) ALL FWLR (pt. 987) 747 @ 779, University of Ilorin vs. Obayan (2019) ALL FWLR (pt. 991) 96 @ 102

– 103. The lower Court in its judgment on the issue, specifically at pages 211 – 214 of the record, recognized the fact that respondent was reported to the police and then dismissed based on the same allegation leveled against him. The Court also identified the fact that respondent’s employment with the appellant by virtue of exhibits C4 and C5 was that of master and servant, and further relying on the case of Yusuf vs. Union bank (1996) 6 NWLR (pt. 457) 632, of the view that an employer can dispense with the services of his employee under the common law, and all he needs to do is to afford the employee an opportunity of being heard before exercising the power of dismissal. The lower Court in that respect cannot be faulted. A calm understanding of the decisions in University of Calabar vs. Essien (1996) 10 NWLR (pt. 447) 225 @ 262 and Imonikhe vs. Unity Bank Plc (2011) 12 NWLR (pt. 1262) 624 @ 643, is that an employee accused by his employer of misconduct, must first of all issue a query to the employee to answer before taking any action on the employment of the employee. The pertinent question arising and for which this Court must answer is

whether the respondent was dismissed by the appellant in conformity with the rules of natural justice, which encompasses fair hearing, supposedly laid down by the terms and condition of his service. See, Wilson vs. AG Bendel State & Ors (1985) LPELR – 3496 (SC) per Nnamani JSC.
The respondent in the brief filed, contended that the report indicting him of wrong doing was not made available to him, nor was any query issued to him on the matter. Further to that, respondent argued that the procedure adopted by the appellant in dismissing him violated his condition of service stipulated under Section 19 of the appellant’s handbook, as well as the code of conduct and grievance procedure, which made allowance for the establishment of a disciplinary panel, and above all that appellants having reported the respondent to the police, leading to his arraignment in Court, ought not to have dismissed the respondent before the determination of the case labeled against him on the same facts. There is the argument by the appellant that exhibit C9 – C9.80 relied upon stipulates and pertains to an employee who has been arrested and detained as

against, where appellant simple lodged a complaint to the police. I however from all the circumstances of the case, find myself agreeing with the learned counsel for the respondent and the lower Court that the respondent before us, was not issued a letter of query as rightly posited. The evidence of the Dw1 relevant to the facts stated can be found at page 257 of the record. For emphasis, the relevant portion of the evidence runs as follows:
– Was the claimant queried?
– No, he was asked to write a report, he was not queried.
– You lodged a complaint of stealing in batch of your product on 6/7/2011 with the police against the claimant?
– Yes.
– The complaint was based on the same facts which you used to dismiss the claimant from his employment?
– Yes.
– The case was dismissed.
– yes.
From the above evidence adduced by none other than John Ankeli, the depot Manager, certain facts emanate undisputed. Of fundamental importance is the fact that the respondent was not queried before his dismissal contrary to the assertion of the learned counsel for the appellant and contrary to the holding in Imonikhe vs. Unity Bank Plc

(supra). In any case, this same witness had stated that respondent was not called to appear before any panel as provided for in the respondent’s terms of employment. The case of Eze vs Spring Bank Plc (2011) 48 NSCQR 125, which provided that:
“To determine whether the employment of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is a departure from the prescribed procedure or a violation of the elementary rule of natural justice, then the dismissal is unlawful”, is apt in the present circumstance.
Not only did the appellant fail to query the respondent as demanded by law, but equally failed to adhere to the set down procedure, before dismissing the employee against the procedure set out in his terms of employment. I totally agree with Mr. Annah, that where a procedure is set down for the dismissal of an employee, such procedure must be strictly followed, Calabar Cement Co. vs. Daniels (1991) NWLR (pt. 188) 750, and that having been observed in breach, the lower Court was right in coming to the conclusion that

respondent herein was denied fair hearing. I am aware of the fact that the contract of employment between the parties was a master/servant relationship and the master has the right to terminate the employment of the employee at any time and without giving any reasons, but must reiterate the fact that where such dismissal is carried not in accordance with the manner contemplated by the condition of service, the dismissal will be unlawful and the respondent entitled to damages. See Samson Babatunde Olanrewaju vs. Afribank Plc (2001) SC (pt. III) 1 @ 20.
The reasoning and conclusion of the lower Court on the issue is impeccable, and this Court cannot in the circumstance interfere with same. This issue is resolved against the appellant.

Issue Two.
Whether the trial Court was right, having regard to the circumstances of this case, when it held that exhibit D4, not being signed is a worthless document.
This issue hops on the legal principle that an unsigned document is a worthless paper as stated in a number of cases including the case of Brewtech Nig. Ltd vs. Akinnawo & Anor (2016) LPELR-40094 (CA). Learned counsel for the appellant held

the view that such does not apply where the unsigned document is a secondary document attached to a primary document which is signed, and the case of Texaco Nig. Plc vs. Kehinde (2000) LPELR – 10000 (CA) was referred to. He submitted that exhibit C4 is the primary document, whilst exhibits C9 and D4 are the secondary documents, and in fact one document based on the principle of incorporation by reference. He argued that even though exhibit D4 was unsigned, it is not a worthless document as same is part of exhibit C4 which was duly signed.

The submission of learned counsel for the respondent predicated on the cases of Azeez (2013) 1 WRN 46 @ 53, Fasehun vs. AG Federation (2006) 4WRN 99 and Omega Bank Nig. Plc vs. OBC Ltd (2005) 1SC (pt. 1) 49, is that in law any unsigned document carries no weight even where admitted. He made mention in response to the appellants submission that Exhibit D4 is incorporated in exhibit C4, that counsel’s submission is not supported by the pleadings nor is it supported by evidence on record.

The principle of doctrine of incorporation by reference is one that is frequently applied in the construction of

documents or documents produced by the parties, and where it is clear that some other evidence must have been in the contemplation of the parties. In such a case the document put forward compels the Court to look beyond and to ascertain precisely the other evidence which by necessary implication the parties must have had in their minds at the time of the contract. See Collins Iwuoha vs. NRC (1997) LPELR – 1570 (SC), Golden Construction Co. Ltd vs. Stateco (Nig) Ltd (2014) 8 NWLR (pt. 1408) 171.
In the present case, exhibit C4, is the offer of employment, while exhibit C9 is the junior staff Handbook, and exhibit D4, the policy on the treatment of fictitious loading of trucks. Having carefully studied the cases cited by the learned counsel for the appellant on the issue, I still fail to understand how the signature on exhibit C4, the employee letter of employment can be said to be the signature on exhibits C9 and D4 by incorporation. My understanding of the case of Iwuoha vs. NRC (supra) cited by the appellant is with respect to their evidential value, where the evidence in one document can be said to be in contemplation of the parties. Exhibit D4,

titled the treatment of fictitious loading said to have been placed on the notice board cannot be said to be one contemplated by the signing of exhibit C4, the employees employment letter, and I reject the argument that it was so signed by incorporation, and accordingly not having been signed a worthless document by the state of the law.

Issue Three.
Whether the trial Court was right when it held that the appellant ought to have waited for the conclusion of the criminal proceedings brought against the respondent before dismissing the respondent from its employment.
The appellant by this issue seeks to challenge the holding of the lower Court to the effect that appellant ought to have waited for the conclusion of the criminal proceedings against the employee before dismissing the respondent from his employment. Counsel though conceding to the legal position established in the case of NPA vs. Ajobi (2006) 13 NWLR (pt. 998) 477 @ 489, where it was held that:
“A defendant or employer who reports his employee to the police in a criminal charge is required to await the conclusion of the criminal proceedings before he can take any further

step in their internal disciplinary measures. It is on that ground that I find the defendants action in dismissing the claimant wrongful”,
argued that respondent was dismissed from its service when there was no criminal prosecution of the employee before the Magistrate Court. He conceded that once there is a pending criminal trial against an employee based on a complaint by the employer, the employer should wait for the outcome of the trial before dismissing the employee, but argued that such does not include where all that the employer did was to report to the police. He maintained that the principle in the case of NPA vs. Ajobi (supra) is inapplicable in the instant case, in that respondent was dismissed before the pendency of the action before the Magistrate Court, and referred to exhibits C5, C6 and C7 in support of the argument that respondent was dismissed before his arraignment in Court.

In further submission, learned counsel submitted that there is no law requiring the employer to wait for the respondent to be tried in Court before taking any action, and contended that all that is required is for the employer to avail the employee fair

hearing before dismissing him and cited the cases of Arinze vs. FBN Ltd (2004) 12 NWLR (pt. 888) 663 @ 673 and Imonikhe vs. Unity bank Plc (supra) @ 639-640 to buttress his position. Finally it was contended that even though appellant reported the criminal misconduct of the respondent to the police, it was not duty bound to wait for the respondent to be tried before taking action. He urged the Court from the foregoing to resolve the issue in favor of the appellant.

In response to the submissions of the appellant herein, learned counsel for the respondent stated that the respondent was dismissed on the 18/7/2011, when the report of stealing was lodged to the police on the 6/7/2011. He made reference to pages 7 and 8 of the appellant’s Junior Staff Handbook, wherein it was provided that:
“An employee who has been arrested and is held in detention by the police on a criminal charge shall be suspended from duty and his pay stopped immediately whether or not such criminal charge arises from a report from the company, such suspension will normally be without pay in case where the employee is either still held in custody and/or bail subject to

an official charge the police and also in cases involving him in loss of revenue or fraud against the company. In all cases of the suspension, full fact of the alleged offence shall be reported immediately to the plant manager of the company contract person. When an employee is acquitted on a criminal charge, he may on application to the company for reinstatement, be allowed to resume duty if the company is satisfied with the circumstances of the acquittal: in that case management may at its discretion pay him for the period of suspension. When an employee who was suspended in connection with either a criminal or a company charge is found guilty, he will normally be dismissed retrospectively from the date of the original suspension. In all cases of suspension without pay on criminal charges, upon conviction, the employee will not be entitled to be paid for the period of suspension”.

The submission of the learned counsel for the respondent is that the bedrock of the relationship between the parties being founded on the Junior Staff Handbook, exhibit 9, and the dismissal not being in accordance with the terms spelt out therein, the dismissal becomes

unlawful. The authority of Eze vs. Spring Bank (supra), UBN Plc vs. Soares (supra) and Calabar Cement Co. vs. Daniels (supra) were relied upon. He argued that the dismissal of the respondent after lodging a report to the police and before the conclusion of investigation and possible prosecution, the appellants dismissal of the respondent was in contravention of the Junior Staff Handbook which governs their relationship. He urged the Court to resolve the issue against the appellant. I have earlier on referred to the submission also made by the appellant that exhibit C9 contemplates a situation where the employee has been arrested and is held in detention by the police on a criminal charge, as against mere reporting the employee to the police as was the case in the instant case.

The following facts appear uncontested. The allegation of stealing against the appellant was lodged to the police on the 6th of July, 2011. See page 237 of the record. The respondent was subsequently dismissed by the appellant on the 18th of July, 2011, while his arraignment in Court was on the 29th of August, 2011. It is equally factual in that the relationship of the parties is

governed by the provisions of the Junior Staff Handbook exhibit 9 – 9.80, authored by the appellant. I have hitherto reproduced the relevant provisions regarding the procedure to be followed by the appellant in terminating or dismissing the employment of any employee, specifically at pages 186 – 187 of the record. I do not appear to be enthused by the argument by the appellant that exhibit C9 – C9.80 relates only to a situation where the employee has been arrested and detained. If I may ask what is the purpose of reporting the employee to the police in the first place. When you label an employee as a thief do our police systems just invite you and ask you to go home? I do not agree with the disparity drawn therein by the learned counsel.
It is trite law that where any act to be done is subjected to a condition precedent, such action must await the fulfillment of that condition precedent. In Ibama vs. Shell Petroleum Company of Nigeria Ltd (2012) NILR 75 @ 80, it was held that:
“…where however the right to determine the contract by notice depends upon the performance of a condition precedent, the party seeking to

exercise its right of determining the contract must first establish that the prescribed condition precedent has been fulfilled”.
This also applies to contract of employment as in the instant case. It appears to me from the record that appellant did not dispute the fact that once an employer makes a report to the police, the employer must await the outcome of the criminal trial before taking any action it deems fit in the circumstance, in accordance with the holding in NPA vs. Ajobi (supra). Its objection is hinged on the application of the principle in the case to the case, at hand.
Let us further examine the case of NPA vs. Ajobi (supra). In that case, the plaintiff therein was an employee of the defendant. The plaintiff was accused of acts bordering on fraud in the course of his duties. The defendant reported the plaintiff to the police for investigation. The police on the completion of investigation charged the plaintiff to Court. He was tried and found to be not guilty. It should be recalled that just as in the instant case, while the case was pending before the Magistrate Court, the employer dismissed the employee. The Apex Court held that:

“Having referred the matter to the police for investigation the appellant was bound to wait for the outcome of the trial. The respondent was liable to dismissal only if he was convicted by the Court”.
It is obvious that the lower Court was rightly guided by the decision in resolving the issue. See page 212 of the record. In any case, having resolved issue one against the appellant, the argument that appellant complied with the position of the law exposed in Arinze vs. FBN Ltd (supra) and Imonikhe vs. Unity Bank Plc (supra) is not available to the appellant. Further to that it is evident that appellant jumped the gun in dismissing the respondent when the terms of the relationship set out in the Junior Staff Handbook which binds the parties were not complied with, and I have no hesitation whatsoever agreeing with the lower Court that in the circumstance of the employment of the respondent with the appellant, appellant was wrong not to have conformed with the terms of contract that binds the respondents employment with the appellant and thereby ought to have awaited the result of the complaint before the police and the Court. I agree

that there is no law that states that an employer must wait for the employee to be convicted by a Court of law before his employment is terminated, but where as in the instant case, the employer makes it a duty to report the employee to the police for investigation as to whether the offence alleged against him was in fact committed or not, the employer must await the result of the investigation and or the conviction or dismissal of the employee before proceeding to act as it deems fit. I also resolve this issue against the appellant.

Issue Four.
Whether the trial Court was right when it awarded the sum of N2,000,000.00 (Two Million Naira) to the respondent under Section 19 of the National Industrial Court of Nigeria Act, 2006 for wrongful termination of employment.
The grouse of the appellant expressed herein is the award of the sums of Two Million Naira to the respondent as general damages pursuant to Section 19 of the National Industrial Court of Nigeria Act, 2006 for the wrongful termination of the respondent. Alluding to the provisions of the section and the case of New Nigerian Newspapers Ltd vs. Atoyebi (2013) LPELR-21489 (CA), counsel

argued that the award had no support in law as all that respondent is entitled to, is the prorated leave allowance and a month’s salary in lieu of notice, which he argued amounted to N24,830.00 only. He urged the Court to be guided by the principles of interpretation established by the Apex Court in the cases of Egbe vs. Yusuf (1992) LPELR-1035, Orubu vs. NEC (1988) 5NWLR (pt. 94) 32, and finally resolve the issue in favor of the appellant.

The short response by the respondent is that the lower Court properly applied the provisions of the law set out before now, as the dismissal of the respondent was not legally nor procedurally justified, thereby courting the appropriate damages. He opined that the fundamental right of the respondent was breached in the instant in the manner in which unjustifiable charges were pressed against him, and contended that the award of damages was within the discretion of the trial Court which should not be easily tempered with. Counsel posits that the National Industrial Court was statutorily set up to ameliorate the harshness of the common law as provided by Section 15 of the Act 2006, and urged the Court not to be

bound by the common law authorities, but to progressively apply the doctrine of equity in order to do justice. On points of law, the learned counsel for the appellant referred to the case of Oak Pensions Limited & Ors vs. Oladipo Olayinka (2017) LPELR-43207 (CA) and submitted that Section 19(d) of the NICN Act did not give the learned trial judge unlimited discretion to award compensation or damages without the support of the Act or other enabling act of the National Assembly. Counsel further argued that notwithstanding the establishment of the NICN, the measure of damages recoverable in cases of wrongful termination of employment is determined by what the employee would have earned over the period that notice is required to properly terminate the employee and cited for support the earlier case of Oak Pensions Ltd & Ors vs. Oladipo Olayinka (supra) and Oforishe vs. Nigerian Gas Co. Ltd (2017) LPELR – 42766 (SC).

On the provisions of Section 14 of the National Industrial Court Act, 2006, counsel submitted that contrary to the contention of the respondent counsel, the Court does not have the jurisdiction to grant to parties reliefs not sought for,

as the Court is bound by the reliefs sought by the parties. He stated that the section only allows for consequential orders in order to give effect to the decision of the Court. Finally making reference on the case of 7UP bottling Company Plc vs. Augustus (2012) LPELR – 20873 (CA), it was argued that the difference between termination of employment and dismissal is not a mere technicality, and the point not having been determined by the lower Court, this Court is called upon to resolve the question, and thereby resolve the issue in favor of the appellant..

I ask what I consider the vital question in the resolution of this issue, whether the award of Two million naira to the respondent for wrongful dismissal pursuant to the provisions of Section 19 of the National Industrial Court Act 2006 is justifiable in the circumstance? For clarity, the section provides:
The Court may in all other cases and where necessary make any appropriate order including;
i. The grant of urgent interim reliefs;
ii. A declaratory order
iii. The appointment of a public trustee for the management of affairs and finances of a trade union or employers

organization involved in any organizational dispute;
iv. An award of compensation or damages in any circumstance contemplated by this act or, any act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
The exclusive jurisdiction and powers of the National Industrial Court are also spelt out under Section 254 (c) (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Section 19 of the Act, spelt out what the Court is capable of granting in the circumstance of its jurisdiction. By the Act establishing the Court, issues bordering on employment exclusively fall within the scope of its jurisdiction. The complaint of the appellant relates to the award of compensation to the respondent pursuant to the provisions of Section 19 (d) of the Act. His argument is that by the provision of the law under focus, the trial Court can only award compensation and or damages when there is an enabling act of the National Assembly to that effect or where the damages are contemplated by the act itself. There is the other argument that the fundamental right of the appellant having been breached as shown in the

instant case, arising from the high handed, malicious and aggressive manner pursued by the appellant in dismissing the respondent in breach of the rules of natural justice and thereby pressing charges against him which led to his prosecution was enough to aggravate the damages against the appellant. The case of Maiya vs. Incorporated Trustees Clinton Health Access Initiative Nig. & Ors (2012) 27 NLLR (pt. 76) 110 @ 133 – 134 was cited thereto.
I have no doubt whatsoever that the circumstance leading to the prosecution of the respondent herein is akin to malicious prosecution. It cannot be denied that appellant for no cause subjected the respondent to unreasonable prosecution. Granted that the appellant does not need the services of the respondent, which it was entitled to say by way of termination, the further acts of the appellant during the trial of the respondent, exhibiting venom and inconsideration commands that the breach of the employee’s right be compensated. I agree with the respondent counsel, that the case of The British Airways vs. Makanjuola (1993) 3 NWLR 311, is apposite to the case at hand and the lower Court justified in

awarding the sums of two million naira damages to the respondent. This issue is resolved against the appellant.

Issue Five.
Whether the trial Court was right when it granted to the respondent orders which he did not seek.
It is the submission of the learned counsel that the trial Court lacked the jurisdiction to grant to the respondent orders which he did not ask for, and the cases of Awodi vs. Ajagbe (2015) 3 NWLR (pt. 1447) 549 @ 600, Kayili vs. Yilbuk (2015) 7 NWLR (pt. 1457) 26 @ 84, Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350 @ 372-373 and Alhassan vs. Ishaku (2016) 10 NWLR (pt. 1520) 230 @ 284 – 285 were cited and relied upon in support of the legal principle. He then alluded to the three reliefs sought by the respondent before the lower Court, contending that respondent never prayed for the following reliefs awarded to it;
a. The claimant remained an employee of the defendant throughout the period of his trial from his wrongful dismissal to date of the dismissal of the charges.
b. The defendant shall accordingly calculate and pay to the claimant within 30 days of this judgment, the sum of the backlog of salary of the claimant

from his wrongful dismissal to date of the dismissal of the charges.

Learned counsel maintained that respondent not having asked for the reliefs granted, the lower Court lacked the jurisdiction to have granted same. He further agreed that a Court cannot impose an employee on an unwilling employer as stated in Osisanya vs. Afribank Nigeria Plc (2007) LPELR-2809 (SC), and argued that the orders are not available to the employee, the employment being that of a master and servant, and the orders were not sought by the respondent. Citing the case of Jev vs. Iyortyom (2014) LPELR – 23000 (SC) per Okoro JSC, counsel accused the Court of raising the issue of the reinstatement of the respondent suo motu without availing the parties an opportunity to be heard, and insisted that the two orders violated the appellant’s right to fair hearing and thereby occasioned a miscarriage of justice.

Arguing per contra, it was argued that the trial Court had the requisite power to award any relief which a party is entitled to based on the proven facts before it by virtue of Section 14 of the National Industrial Act 2006. Alluding to the provisions of the Act

afore stated, it was submitted that on the basis of the provision of Section 14 of the Act, considered along with Section 12 (2) (b) of the same Act, empowered the Court to grant such remedies whatsoever as the parties may be entitled to. He argued that the Court in the circumstance is not bound to limit itself to the remedies sought and further that the Court is empowered to depart from the provisions of the Evidence Act in the circumstance of the case. He denied the fact that the lower Court ordered for reinstatement of the employee, but that the Court ordered for the payment of his salaries from the date of his dismissal to when the criminal allegation against him was determined in Court. He maintained that the two orders made by the lower Court were proper and valid.

On the issue of raising an issue suo motu, counsel posited that no issue was raised suo motu, and that all the Court did was to grant the remedies which the respondent was entitled to from the evidence before it.

The complaint of the appellant generated from the issue related to the two reliefs awarded to the respondent, i.e. that the respondent throughout the period of his trial

remained an employee of the appellant and that his salary be paid within that period. At nowhere can it be seen that the lower Court ordered that respondent be reinstated as contended by the appellant. The law is settled in that in a master servant relationship, a dismissal by an employer cannot be set aside by a Court of law on the premise that the Court cannot impose a servant on an unwilling master. See Osisanya vs. Afribank Nigeria Plc (2007) LPELR-2809 (SC). I however understand the trial Court as stating that having jumped the gun when he dismissed the respondent before his trial, and in conformity with the provisions of the employer’s condition of service embodied in pages 7 and 8 of the appellant’s Junior Staff Handbook, which provided in brief that an employee who is arrested and held in detention by the police on a criminal charge shall be suspended, pending the determination of his case. This translates to mean that as at the time of his trial, the employee cannot be dismissed and remains an employee of the employer, pending the outcome of his trial, when the employer has the liberty to either re-absorb or dismiss the employee as the case

may be. In other words, the orders granted to the respondents are akin to consequential orders, to give effect to the judgment of the trial Court. The Apex Court on the nature of a consequential order stated that:
“A consequential order is one which flows directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it,“ see Akapo vs. Hakeem-Habeeb & Ors (1992) LPELR – 325 (SC), per Nnaemeka-Agu JSC.
The trial Court having held that appellant ought to have awaited the result of their complaint lodged with the police, the order by the trial Court to the effect that during the pendency of the investigation, and by virtue of the contract of employment between the parties, which the appellant breached, respondent was deemed suspended during the pendency of the investigation and therefore a staff of the appellant. I do not see any merit in the appellant’s submission and thereby resolve the issue against them.
Issue Six.
Whether the trial Court was right when it failed to make a finding or pronouncement on all the issues submitted to it by the appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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With regards to this issue, appellant complained relying on Ovunwo & Anor vs. Woko & ors (2011) LPELR-2841 (SC), that:
“It is a Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the appellant’s to fair hearing.”

Counsel argued that the trial Court failed to make any finding or pronouncement on the issue raised by the appellant at pages 171, 172 and 206 of the record on whether the respondents claim for wrongful termination ought to fail since the respondent put a case of wrongful dismissal. He alluded to the address at pages 171 – 172 of the record, and 206 contending that the unresolved point of law is vital and fundamental as it touches on the competence of the respondents claim. Learned counsel in further argument submitted that the counterclaim of the appellant also remained unresolved which occasioned a miscarriage of justice. He urged the Court based on the preceding argument to resolve the issue in

favor of the appellant and thereby set aside the judgment of the trial Court.

The respondent on the other hand implored the Court to hold that appellant did not suffer any breach of fair hearing or any miscarriage of justice, and thereby urged the Court to resolve the issue against the appellant. Counsel conceding to the legal principle that a Court must demonstrate in full a dispassionate consideration of all the issues formulated by the trial Court contended that the Court resolved all the issues, and submitted that the argument of the appellant on the difference between wrongful dismissal and wrongful termination are as to their consequences, but that both result to the same conclusion. On the submission that the trial Court failed to consider and determine the appellants counter claim, counsel argued on the authority of Unokon Enterprises Ltd & Anor vs. Chief Omuvwe & Anor (2005) ALL FWLR (pt. 262) 501 @ 520 – 522, per Akpata JSC, that where the plaintiff succeeds on his claim, the plaintiffs success renders useless the counterclaim depending on the nature of the counterclaim. He contended that the counterclaim in any case was not

proved and thereby urged the Court to resolve the issue against the appellant.

It is trite as stated; that a Court of law is under a duty to pronounce on every issue properly placed before it for consideration before arriving at a decision, and the case of Ovunwo & Anor vs. Woko & Anor (supra), cited by the appellants is apposite on the legal principle. It is apparent from the submissions of counsel that parties are on common ground on the principle. Appellant now referred to pages 171, 172 and 206 of the record, wherein by paragraph 19 (b) of the claimants statement of claim, the claimant claimed for wrongful termination of his employment. Learned counsel argued that whereas the case of the claimant is anchored on wrongful dismissal, his remedy is hinged on wrongful termination which is clearly different. I agree that there is a world of difference between termination of employment and dismissal. The cases of Adeko vs. Ijebu-Ode District Council (1962) 1SCNLR 349, followed in Union Bank of Nigeria Plc vs. Emmanuel Aderewaju Soares (supra) per Okoro JCA as he then was, clearly highlighted the difference between the two. Of equal importance is the

fact that, even though the appellants by their issue two, paragraph 6.2 of the respondents written addresses, alluded to the differences between the two, failed in its judgment in identifying the two terminologies, but rather concentrated on finding whether from the entire circumstance of the case, the dismissal of the appellant was legally and procedurally justified.
The pertinent question arising there from is whether the failure of the lower Court to make any findings on the point in contention occasioned any miscarriage of justice as alleged by the appellants? I see the claimants claim by his paragraph 18 (a) (b) and (c) of the statement of claim as being hinged on a declaration that the dismissal of the claimant from the services of the defendant was wrongful. The further claim of seven million Naira general damages anchored on wrongful termination of employment, in view of the consideration given by the lower Court as to whether the respondent’s dismissal was legally and procedurally lawful cannot be said to have occasioned any miscarriage of justice against the appellant and I so hold.

Furthermore, it was contended that the

appellant’s counterclaim was not given any consideration by the lower Court. I have carefully examined the judgment of the lower Court with respect to the issue under consideration, and must agree with the appellants that the lower Court seemed to have glossed over the counterclaim without giving it a consideration and or determination.
It is trite law, that a counterclaim is a claim for relief asserted against an opposing party after an original claim has been filed; that is, a defendant’s claim in opposition or as a set off against the plaintiff’s claim. It is an independent and separate action though filed in the same action with the plaintiff’s claim with a distinct life of its own and subject to all known modes of proving the same. See Jeje vs. Enterprises Bank Ltd (2015) LPELR – 24829, Peterside vs. IMB (Nig.) Ltd (1993) 2 NWLR (pt. 278) 712, Obolo vs. Ilukoyenikan (2013) LPELR–20324, Susainah (Trawling Vessel) vs. Abogun (2007) 1 NWLR (pt. 1016) 456, Beloxxi & Co. Ltd vs. South Trust Bank (2012) 2 NWLR (pt. 1285) 605, Alaya vs. Isaac (2012) LPELR – 9306, Aberuagba vs. Oyekan (2020) 2 NWLR (pt. 1707) 165 @ 199 per Barka, JCA.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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From page 37 – 38 of the record, the defendant before the lower Court by way of counterclaim, contended that the claimant was indebted to the counterclaimant to the tune of N21,159, 31 (Twenty one Thousand, one Hundred and fifty Nine Naira, thirty one Kobo, and a further Two Thousand, two Hundred and Forty Naira twenty Kobo only being amounts unpaid by the claimant by virtue of a loan advanced to the claimant. The claimant in reply to the counterclaim denied the entirety of the claim stating that he is not in any way indebted to the counterclaimant.
The defendant in his final written address, particularly issue three thereof submitted on whether the defendant is entitled to the counterclaim against the claimant. This was responded to in the additional claimant’s final written address. It is curious thereof why the lower Court failed to resolve the issue in its judgment, contrary to the settled legal position that all issues raised by parties must be dutifully determined by the Court. See Shema vs. FRN (2019) ALL FWLR (pt. 976) 929 @ 968. Appellant is therefore justified in complaining that the lower Court failed to resolve all issues agitated

upon most particularly in resolving the counterclaim filed by the counterclaimants. I do not agree with the learned respondent’s counsel as contended that the disposal of the claimants claim positively rendered useless the counterclaim as the nature of the claim and the counterclaim are not of the same nature, and therefore the case of Unokun Ent. Ltd & Anor vs. Chief Omuvwe & Anor (supra), inapplicable to the case at hand.
Having held that the lower Court failed to dutifully resolve the issue of the counterclaimants claim, this Court is faced with two options. It can send the case back to the lower Court with the order that the counterclaim be resolved one way or the other by way of a retrial order, or it can where appropriate proceed under Section 15 of the Court of Appeal Act 2004, and to assume jurisdiction and may adopt or assume the rehearing of the case as if it was a Court of trial. See Delmas vs. Sunny Ositez International Ltd (2019) 9 NWLR (pt. 1677) 305 @ 325. In opting to proceed under Section 15 of the Court of Appeal Act 2004, the Court must be guided by those conditions that necessitate the invocation of the section which

includes:
i. The trial Court must have jurisdiction to hear and to adjudicate on the case.
ii. The real issue raised by the appellant’s claim must be capable of being distilled from the grounds of appeal.
iii. All necessary materials for the consideration of the Court must be available for adjudication.
iv. The need for expeditious disposal of the case to meet the ends of justice must be apparent.
See also Odedo vs. INEC (2008) 17 NWLR (pt. 1117) 554, Inakoju vs. Adeleke (2007) 4 NWLR (pt. 1025) 427, Delmas vs. Sunny Ositez Int’l Ltd (supra) @ 326, Eromosele vs. FRN (2019) ALL FWLR (pt. 994) 537 @ 555, Exxon Mobil Corp. 5959 vs. Archianga (2019) All FWLR (pt. 980) 689 @ 713.
Having therefore carefully examined the preconditions as listed before now, I am of the view that this is a proper case in which Section 15 of the Court of Appeal Act 2004 as aforesaid can be invoked in the interest of the expeditious disposal of the case. I so proceed in the determination of whether the defendant is entitled to its counterclaim against the claimant.

The appellant’s claim in the counterclaim filed is for a declaration that the

respondent is indebted to the counterclaimant to the tune of N21,159.31 and a further N2,240,20 being the amount of tax payable by the claimant, as well as the cost of the action assessed at N500,000.00.

The counterclaimant argued that even though the claimant had filed a defense to the counterclaim, it failed to cross examine the counterclaimant’s witness on the counterclaim, and also failed to lead evidence in defense of the counterclaim thereby deemed as having admitted the counterclaim by virtue of the decision in Nigerian Customs Service & Anor vs. Bazuaye (supra) and NBC Plc vs. Ubani (supra).

The claimant on the other hand referred to its defense to the counterclaim as well as the additional written statement on oath filed on the 16th of June, 2015, whereby its indebtedness to the counterclaimant was denied. Learned counsel also pointed to the fact that Exhibit D7, bearing the claimants pay advice as at September, 2011, when he was no longer in the employment of the counterclaimant, and the pay advice not being the final entitlement of the claimant, and in view of the admission by the Dw2 under cross examination that counterclaimant was not

informed of any debt due before then, and having failed to exhibit the pay advice of the month of July, 2011, when his employment was terminated, the counterclaimant cannot be said to have established its claim.

A counterclaim being a separate action is bound by all the rigors inherent in proving the assertion made. By Section 131 (1) of the Evidence Act, 2011, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. This is basic. See Famuroti vs. Agbeke (1991) 5 NWLR (pt. 189) 1, Tatu vs. Estate of Late Alh. I. Adamu (2015) 13 NWLR (pt. 1476) 364. To succeed, the counterclaimant must discharge to the satisfaction of the Court by cogent and believable evidence that which he asserts. In the case at hand having asserted that the claimant is indebted to it to the tune of N21,159.30, must proceed to lay cogent and believable evidence that satisfies the Court of its probability, in view of the denial by the claimant. For instance, it is not open to the counterclaimant in view of the proceedings in the record to state that the claimant did not adduce

evidence disputing the claim and or that Dw2 was not cross examined with respect to the counterclaim. Obviously the cases of Nigerian Customs & Anor vs. Bazuaye (supra), Olaleye vs. Wema Bank (2011) 3 NWLR (pt. 1233) 93 @ 120 are grossly inapplicable to the case at hand. The record shows that claimant was never told that he was indebted to the counterclaimants at any given time. Exhibit D7 relied upon by the counterclaimant purporting to show the monthly pay slip of the claimant is of no probative value in that the slip was not made from the period the claimant was in the employment of the counterclaimant, but months after his dismissal from his employment. I wonder why his pay slip during the period of his employment was not produced by the counterclaimants. I agree with the claimants that the counterclaim was not proved and deserves to be and is hereby dismissed.

From the totality of all that has been said, and all the issues having been resolved against the appellant, this appeal fails and it is hereby dismissed by me. The consequence is that the decision of Hon. Justice E. N. Agbakoba in suit no. NICN/CA/112/2014, between Mr. Moses Etim Ekpo vs.

Nigerian Bottling Company PLC, delivered on the 31st of May, 2017 is hereby affirmed. The appellant shall pay costs of N100,000.00 to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Hamma Akawu Barka, JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and is accordingly dismissed.
I abide with the consequential orders and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Hamma A. Barka, JCA
My learned brother has carefully and meticulously dealt with all the issues nominated in this appeal. I agree with the reasoning and conclusion reached in the judgment. I also dismiss the appeal.
I abide by all the consequential orders contained in the lead judgment including the order as to costs.

Appearances:

J. KRUKRUBO, ESQ. For Appellant(s)

A. ANNAH, ESQ. For Respondent(s)