IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE PORT HARCOURT JUDICIAL DIVISION HOLDEN AT PORT HARCOURT. BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR. Dated: 12th day of July, 2019 SUIT NO: NICN/PHC/90/2017 BETWEEN ORBITAL AND ORANGES NIGERIA LIMITED CLAIMANT AND 1. CHIKE TONY ANWANJU 2. JAMES OMONIGHO 3. AMAECHI NWUKO 4. OMOREGIE EGUAGIE 5. EGHO SUNDAY 6. JOHN-MARK KENNETH 7. BRIGHT OSARO 8. TOPE AKINYEMI 9. OPIA INNOCENT 10.IKECHUKWU EWURUM DEFENDANTS Representations: U. Ochihu for the Claimant . Chief G.O. Agbaraosimini with L.I. Benjamin and Queeneth Eze-Chikwe for the Defendants. Judgment This suit was commenced by way of a general form of Complaint filed on the 14th of September, 2017 along with a verifying affidavit, a statement of claim, witness statement on oath, list of witnesses, list of documents and copies of the listed documents to be relied upon at trial. The suit was originally before the late Justice A. Ibrahim before it was transferred to this court sometime in October 2018. Arising from the Complaint and Statement of claim, the Claimant’s claims, jointly and severally against the Defendants are: (a) An order directing the defendants to refund the total sum of N69,000,000.00 being the purported end of project payoff/terminal benefits which the defendants fraudulently collected from the claimant under purported agreement dated 21/08/2017 which the defendants compelled the claimant to sign. (b) A declaration that the agreement dated 21/08/2017 signed by the claimant is null and void as it was signed under duress. (c) N150,000,000.0O being general damages for breach of contract. Reacting to the Claims, the Defendants entered appearance on the 9th of February, 2018 and filed their statement of defence and counter-claim on the 16th of February 2018 and same was accompanied by a list witnesses, witness statement on oath, list of documents and copies of the said documents. The said statement of defence and counter-claim was amended on the 6th of June 2019. Upon receipt of the statement of defence and counter-claim, the Claimant on the 4th of December 2018 filed a reply to the statement of defence and defence to the counter-claim. Upon opening their case on the 21st of January, 2019, the Claimant called a sole witness as CW1 in person of Elawure Osamagbe who adopted his witness statements on oath marked as C1(a) and (b). Through him, five documents were tendered and admitted under protest as Exhibit C2 – C6. Arising from the statement of claim and witness statement on oath of the Claimant, the case of the Claimant is that the Claimant as a private limited liability company employed the Defendants as contract employees of the claimant company and they are not permanent staff/workers since they only work when there is a project. As offshore workers, they are paid individually according to the number of days or weeks each person worked. The Defendants signed the contract of employment with the Claimant before they commenced their work at BW Offshore SENDJE BERGE FPSO Company premises for the claimant which was the project for which they were specifically employed. Claimant further averred that on 17th August, 2017 BW Offshore SENDJE BERGE Company called the personnel manager of the Claimant on phone to inform him that the Defendants (Claimant’s workers) on board came out to protest/riot demanding for the payment of N47,000,000.00 (Forty Seven Million Naira) end of project payoff/terminal benefits from BW Offshore SENDJE BERGE FPSO Company for each worker; a demand which was not part of the agreement between the Claimant and the Defendant nor between the Claimant and its client, BW Offshore SENDJE BERGE FPSO Company. In the course of the protest, the Defendants mounted scaffold to block Helipad and prevent helicopter from going out or coming in. The Claimant further posited that the Defendants threatened not to remove the blockade on the helipad until they are paid; they prepared an agreement, scanned and sent it to the Claimant on the 21st of August 2017. The Defendant averred that the MD was compelled to sign due to hostage of other workers and foreigners and the sums demanded was paid to each defendant through their bank account. The Defendants eventually removed the scaffold on the 28th of August 2017 while the matter was reported to the Police on the 31st of August 2017. The Claimant posits that the action of the Defendant led to loss of contract and damage to property. In the course of cross examination, CW1 posited that it is not the normal practice to pay end of year bonus but depends on what is stated in agreement. He admitted that sometimes parties can negotiate and agree on some terms and that the company does scaffolding in designated area. He admitted that helipad is where helicopters land while helideck is where helicopters land on the platform off-shore and it is where the Defendants caused blockade. He stated that photographs are not generally allowed for the Defendants while working unless permission is taken. He posited that Exhibit C5 was not negotiated in Amber Resources but in the Claimant’s office and it was signed under duress. He stated that the company lawyer did not prepare the agreement as it was prepared by the Defendants off-shore and sent via e-mail. He stated that there are no naval boats for security on the platform. He also stated that BW Off-shore are aware of the money paid under duress. Upon re-examination, CW1 stated that the difference between helipad and platform is that helipad is where choppers stay while platform is an oil facility installation. Upon the discharge of CW1, Claimant closed their case while the Defendants opened theirs with the calling of two witnesses in persons of Egho Sunday as DW1 and Chike Tony Nwanju as DW2. Both witnesses adopted their witness statements on oath which were marked as D1 and D2 respectively. Through DW1, three documents were tendered and admitted in evidence as DW1(a) (b) and (c) with DW1(c) being admitted under protest. Through DW2, seven documents were tendered and admitted in evidence under protest as DW2(A) – (G). Arising from the statement of defence and witness statement on oath, the case of the Defendants is that they admit all the facts relating to their employment with the Claimant and the fact that the Claimant employed them specifically for the contract job awarded to the Claimant by BW Offshore Sendje Berge FPSO Company but denies every other fact. The Defendants added that some of the Defendants have worked with the Claimant for more than 10 years. They posited that the B.W. Offshores sometime in 2017 gave the Claimant notice that their services will no longer be required and same will in turn affect the workers who are the Defendants. In view of that they (the defendants) came up with a document titled “BW Project Workers Demand” wherein their demands were itemized and sent to the Claimant. The demand was initially turned down before the Defendants peacefully approached the Claimant for negotiation after due notice was given to them orally without causing any blockage or endangering of anybody’s life. The Defendants posited that the result of the negotiation was the Agreement titled “End of Project Pay off Agreement”, dated the 21st day of August, 2017 and duly signed by both parties’ representatives. They added that the Claimant was fully represented with the management team and their lawyer and as a result, Claimant made part payment to some of the workers and promised to pay the balance and when the Defendants started demanding for the outstanding balance, the Company started using men of the Nigerian Police to intimidate them leading to a suit in fundamental right enforcement. They added that the picture captured by the Claimant is a regular picture taken by staff at work. That there was no blockade and nobody was held hostage and that there was adequate security at the Berge. They added that there was no report by the white men at their embassies of any such hostage nor a newspaper report and that the Claimant used their helicopter to bring the Defendants from the Berge to upland, they could have been arrested at the office of the Claimant. The Defendants contends that the agreement was duly negotiated and signed therefore the Claimant is not entitled to the claims sought. Upon cross examination of DW1, he posited that he is not a permanent staff of the Claimant. He posited that the Claimant did not tell him that the Claimant’s contract will be terminated by BWO but that BWO told them (the Defendants). He stated that he doesn’t know if the contract is still running. He stated that the Claimant’s lawyer wrote the agreement as he saw him take note after the round table. He was asked why the agreement states in clause 4 and 5 that ‘no arrest’. He answered that the negotiation took 6 days and they didn’t want to be arrested as workers can be victimized after negotiation. He posited that it is not correct that the contract of employment has no provision for end of project benefit. He asserted that no one can block the helipad as there were two gun boats with navy personnel. He also stated that they were being owed salaries. He added that the contract of employment does not contain everything such as xmas bonus, leave allowance which is not in the agreement. DW2 on his part testified that they are contract staff and the contract of employment he signed does not have provision for end of project benefit. He posited that no one can block the helipad as there are armed men guarding the place. He was asked what the defendants were doing with foam on the helipad and he stated that they were working. He admitted he was employed as welder and he works everywhere. He posited that there was meeting on the 17th of August 2017 and it lasted for 5 days and the Claimant gave them feeding money. Upon discharge of DW2, the Defendants closed their case and matter was adjourned for adoption of final addresses. The Defendants filed their final address on the 6th of June, 2019 and same was adopted on the 24th of June, 2019. Arising from the said final address, counsel to the Defendant Chief G.O. Agaraosimini esq, formulated a sole issue for determination to wit: “Having regard to the pleaded facts and evidence led in this case, whether the Claimant has been able to prove his claims and if not, whether the Defendants/Counter-Claimants have proved their Counter-Claims so as to be entitled to their Reliefs sought?” Counsel commenced the argument by urging the court to resolve the issue in favour of the Defendant/counter-claimant. Counsel then posited that it is trite law that a contract of employment is a contract between two parties one being the employer and the other being the employee. He cited section 91 of the Labour Act. Counsel further posited that the Defendants/Counter-Claimants are not in argument as to whether a Contract of Employment was signed before they resumed duty at their respective places of work. However, the Defendants strongly contend that in a contract of employment, not everything are usually contained therein in express terms as some are implied or subsequently negotiated upon whenever such issue arises. He added that this was cemented by the testimony of CW1 and the claimant cannot approbate and reprobate at the same time as this is against the Rule of Law. He cited the cases of SOWEMIMO -VS- AWOBAJO (1999) LPELR CCN/1/26/99 and CHIEF NICHOLAS FRANK -VS- VAN KUMA YUKWE (1997) 6 NWLR (Pt.5) pg.428 at 44). Counsel further cited section 85 and 89 of the Evidence Act and contended that the court should attach no weight to Exhibit CW2 as it is a photocopy and no foundation was laid for tendering same. Counsel added that Exhibit CW2 make provision for a lot of lacunas which overtime may be filled through negotiations and agreement by parties. He referred to second paragraph of the contract of employment of Ewurum Ikechukwu and posited that in view of such lacunas, exhibit DW1b is not out of place. Counsel argued further that the agreement titled “End of Project Payoff Agreement” as in Exhibit “DW1B” is a collective agreement which was brought about after series of meetings and negotiations between the Claimant and the Defendants. He cited the case of RECTOR KWARA STATE POLYTECHNIC —VS- ADETILO (2007) 15 NWLR (Pt. 1056) 42 CA on the binding nature of collective agreement on parties when such is incorporated expressly or impliedly into the contract of employment. Counsel contended that the mere allegation that the agreement was scanned without proof is fatal as he who alleges must prove. Counsel contended that if the Agreement was signed and scanned by the Defendants from offshore to the Claimant in their office in Port Harcourt, on the face of the document, there will be scanned signature on the signature column of the Defendants while on the column of the Claimant, there should be signature with signed original pen, but to cover up falsehood, the Claimant photocopied the Agreement so that everything will look to be the same. Counsel added that the Claimant has not presented before this court any instrument or machine with which the agreement was produced if it was indeed scanned to the Claimant and thereby failed to comply with section 84 of the Evidence Act, 2011. Counsel urged the court to rely on Exhibit DW1B and refuse the admissibility of CW5. Counsel added that the Claimant has also failed to explain how the sister company, Amber Resources Nig. Ltd, got to be part of the Agreement in signing along with the Claimant. Counsel in respect to the counter claim argued that after the agreement was signed, the Claimant made part payment through its own bank without being present at the bank and without any pressure with gun or knife to indicate duress. He contended that the remaining balance of N6,075,000.OO (Six Million, Seventy- Five Thousand Naira) only has also attracted interest having been left unpaid and unchallenged. Counsel cited the case of SALZGITTER STAHL (GMBH) VS TUNJI DOSUNMU INDUSTRIE LTD. (2010) 43 (Pt.2) NSCQR 1085 at p.1109 and Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 . Counsel further contended that it was over two weeks before the Claimant who claimed that the Defendants had committed a crime by blocking the Helipad and preventing Helicopter from going out or coming in saw it fit to finally report the matter to the Police. He added that such action is an afterthought. Counsel argued that the Petition written to the Commissioner of Police, Exhibit CW4 is a public document and having not been certified, is inadmissible. Counsel added that the Claimant also failed to present the findings of police investigation upon the petition written to same. Counsel also argued that it is trite that a Claimant will rise or fall by his claims as the onus is on the Claimant to prove his case by credible, cogent and reliable evidence that will show that he is entitled to his claims. He cited the case of OJOH VS KAMALU (2006) VOL. 136 LRN 1130 at 1138. With regards to Exhibit DW2A-G, counsel contended that facts relating to same have been pleaded and cited Order 30 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, Section 132 of the Evidence Act, 2011 and also the case of FAMUROTI —VS AGBEKE (1991) 5 NWLR (Pt.189) 1 at 13 para. E. Counsel contended that the general damages of Ten Million Naira (N10,000,000.00) is for the Claimant’s breach of the Agreement (i.e. Exhibit “DW1B) and the general damages need no specific proof. He cited the case of FRAMO NIG. LTD. -VS- SHAIBU DAODU (1993) 3 NWL (Pt.281) 372 Ratio 5. Counsel concluded by urging this Court to hold that from the entire evidence before this Honourable Court including the Exhibits and all the foregoing submissions, the Claimant has totally failed to prove his claims before this Honourable Court on the preponderance of evidence and the balance of probabilities and should dismiss the Claimant’s Claims with substantial costs whilst on the other hand upholding that the Defendants/Counter-Claimants have laid sufficient proof of their Counter-Claims and thus should be entitled to the Judgment of this Honourable Court in terms of the Reliefs sought. Reacting to the final address of the Defendant, the Claimant filed their final address on the 17th of June 2019 and adopted same on the 24th of June, 2019. Arising from the said final address, counsel to the Claimant U. Ochihu Esq. formulated three issues for determination to wit: 1. Whether the Claimant has proved its case against the defendants and is therefore entitled to its claim against the defendants. 2. Whether the agreement dated the 21st day of August, 2017 was not signed under duress. 3. Whether the defendants/counter Claimants are entitled to their salaries and counter Claim having regard to the facts and circumstances of this case vis-à- vis the evidence adduced. In arguing issue one, counsel submitted that the onus of proof rest on the party, whether Claimant or defendant who will fail assuming no evidence has been adduced on either side. Counsel cited sections 131 and 132 of the Evidence Act 2011 and the cases of GARBA AIKI VS. GABRIEL IDOWU (2006) 9 NWLR (Pt. 984) 47 at 67 and MBANEFO VS. AGBU (2004) NWLR (Pt. 1403) at P.238 esp P277 Paras C-D. Counsel argued further that being a civil suit, it is trite that the Claimant must prove on a preponderance of evidence that the defendants collected the sum of N69,000 000.00 contrary to the terms and conditions of the contract of employment voluntarily signed by the defendant. Counsel argued that Exhibit C2 which is the contract of employment has been pleaded, is relevant and legally admissible hence the objection of counsel to the defendant is misconceived. He added that in a labour related matter as in the instant case, the contract of employment is the pivot or bedrock upon which the employee or employer must base his case. He cited the case of UBA VS. EDET (1993) 4 NWLR (Pt. 288 at 300 and NWAUBANI VS. GOLDEN GUINEA BREWERIES PLC (1995) 6 NWLR (Pt. 400) 184 at 211. With regards to issue two, counsel contended that duress according to Black’s Law Dictionary, 6th Edition at page 504, is defined as any unlawfully threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent. Counsel restated facts relating to the Defendants’ blockade of helipad and contended that exhibit DW1B (sic) is not admissible in law as it was not signed by anybody. He cited the case of A.P.G.A V. ALMAKURA (2016) 5 NWLR (Pt. 1505) P. 316 at PP. 348 Paras C-D; 351, Paras C-D, and MAKU V. AL-MAKURA (2016) 5 NWLR (Pt. 1505) P. 201 ratio 7. Counsel contended that it is not true that the Defendants were working on the helipad. With regards to the contention that Exhibit C5 was prepared by the Claimant’s lawyer, counsel contended that the document does not represent a document prepared by a lawyer as there is no name of the lawyer on it and there is no stamp affixed. With regards to the petition written to the Commissioner of Police on the 31st of August, 2017, tendered as Exhibit C4, counsel contended that same is not a public document as it was written by the lawyer of the Claimant and same is not itemized in section 102 of the Evidence Act. Counsel also contended that there is no evidence before the court to establish the fact that BW Offshore served the Claimant any notice of termination of their services and same is a cooked up story by the Defendants. With regards to issue three, counsel posited that counter-claim is an independent action and the counter claimants must prove their case to succeed. He added that the counter claimants adduced no evidence in support of their counterclaim and averments and pleadings do not translate to proof. He cited the case of IDRIS VS. ALL NIGERIA PEOPLES’ PARTY & ORS (2008) 8 NWLR Pt1 1088 at 97. Counsel added that the Defendants through DW1 and DW2 did not state whether their salaries is paid weekly or monthly or how the Claimant paid them previously. The DW1 and DW2 failed to tender any document to show how much the Claimant owe each of them, whether the sum is fixed or computed based on days of work or how many weeks or months they worked to earn the sum. Counsel added that the court will not order payment of salaries for services not rendered and cited the case of OGIAMIEN VS. GULE MANNING SERVICES NIG. LTD. (2016) 66 NIL.L.R (Pt. 225) P. 210 at P. 246 paras A-D. With regards to general damages and cost of action, counsel posited that the law is trite that the object of an award of damages is to compensate the Claimant for the damage, loss or injury which he suffered and which must be attributable to the breach of some duty by the Defendants, that the breach must be for loss arising from breach of contract, that must be real and not speculative or imagined and such award of damages is at the discretion of the court. He cited the case of A.K.F INVESTMENT NIGERIA LIMITED VS. NIGERIA TELE COMMUNICATIONS PLC. (2009) 13 NWLR (Pt. 1164) 376. Counsel concluded that from the total evidence before this Honourable court and his submissions, the court is urged to enter judgment in favour of the Claimant in respect of all its claim and dismiss the counter-claim of the Defendants with substantial cost. By way of reply on point of law filed on the 21st of June 2019, counsel to the Defendant posited that the DW1A is a mere proposal for negotiation which does not constitute a contract. He cited the case of MRS. T.C. CHUKWUMA -VS- MR. BABAWALE IFELOYE (2009) 37 (Pt.2) NSCQR 741 at pp.778 – 779, Ratio 7. Counsel restated and extended arguments on issues earlier made in the defendants’ final address and concluded by urging the court to enter judgment in favour of the Defendants/Counter Claimants. In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the claims before the court, the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law. Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, I find it apposite to first address the substantive claim of the Claimant before the counter-claim made by the Defendant. In resolving the substantive claim, the issues for determination by this court are to wit: i. Whether the agreement executed between the Claimant and the Defendants on the 21st of August 2017 was executed under duress and liable to be set aside at the instance of the Claimant. ii. Whether or not the Claimant is entitled to the reliefs sought in view of the resolution of issue one. Before the resolution of the issues, I find it apposite to determine the status of all the exhibits admitted under protest. On the part of the Claimant, exhibit C2 – C6 were admitted under protest as counsel to the Defendant objected on ground that all the documents were photocopies and no foundation was laid in tendering them. With regard to C3, he contended in addition that they did not comply with section 84 of the Evidence Act while with regards to C4, he added that the document ought to be certified being a public document. Counsel to the Claimant responded that the original documents are already with the employees (Defendants) and no longer their (Claimant’s) document. He added that pictures no longer have negatives. He added that Exhibit C2 have been pleaded, is relevant and legally admissible. On the part of the Defendants, Exhibit DW1C was tendered through DW1 and objected to by counsel to the Claimant on ground that same is a public document and need certification. Counsel to the Defendant replied that the document does not require certification as it is original. Also, the Defendant through DW2 tendered Exhibits DW2A-DW2G which was objected to by counsel to the Claimant on ground that they are not pleaded. Counsel to the Defendant responded that the exhibits were mentioned in paragraphs 13 of the statement of claim of the Claimant which gave rise to the response in paragraph 4k of the statement of defence and 5b of the witness statement on oath of DW2. In view of all the foregoing objections, I have taken a look at all the contested documents: i. Exhibit C2 comprises of copies of contract of employment that existed between the Claimant and the Defendants. Rightly so, the Claimant being the employer cannot be in custody of the original copy since they were issued to the Defendants. The Defendants are probably in custody of the original. The original in this case is legally regarded as primary evidence while the photocopy tendered is the secondary. In that light, section 85 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered. Although the Claimant have not been meticulous in bringing the circumstance which impels them to tender the photocopies by way of foundation, the failure to lay foundation is however not fatal to admissibility. ii. Exhibit C3 is a set of photographs/pictures which are printed in colors on paper. The Claimant has not stated how the pictures were taken or how they were printed. There is no gainsaying that the photograph are computer generated within the provisions of section 84 of the Evidence Act which counsel to the Claimant has exhibited complete disregard of, hence the objection of counsel to the Defendant in this regard has merit. iii. Exhibit C4 is a copy of a letter written by a claimant’s lawyer to the Rivers State Police Command dated 31st August 2017. The copy bears an acknowledgement to indicate that the original copy was indeed received by the Commissioner of Police. Such acknowledgment indicates that the said copy must have emanated from the custody of the lawyer who wrote same. It therefore is not a public document within the provision of section 102 of the Evidence Act and therefore does not require certification. iv. Exhibit C5 is a copy of an agreement dated the 27th of August, 2017 while C6 comprises of 2 letters written to Heritage Bank by the Claimant. The contention is simply that both documents are photocopies and no foundation is laid for tendering them. While there is no particular explanation at this stage for why Exhibit C5 is a photocopy, Exhibit C6 is an acknowledged copy of the letter written to the bank and bears the same lack of meticulous presentation which C2 and C4 suffers. v. Exhibit DW1A is a Copy of court process filed at the Rivers State High Court in an Application for fundamental right enforcement. The objection is that same ought to be certified being a public document. A look at the document reveals that it is the Applicants’ copy which they kept for themselves after filing the court’s copy. Same would not generally require certification but in view of the fact that it is to establish a record of the court, it would fall within the provision of section 102 and therefore become a public document requiring certification. vi. Exhibit DW2A –DW2G comprises of 7 photographs which are without a doubt computer generated. The said photographs share similitude with those tendered by the Claimant except for the type of papers used in printing them. The Defendant contended that the Documents are pleaded and in that light I have taken a look at the list of documents filed on the 29th of April 2019 and find that the 4th item on the list is ‘seven pieces of worker’s routine photographs’. Also, paragraph 15b of the Amended statement of Defence mentions that Defendants have other pictures taken during work. Consequently, the contention of not pleading same fails. Having made the forgoing findings on all the contested exhibits, this court, in view of section 12 (2) (b) of the National Industrial Court Act 2006 which allows the court to relax the rule of evidence in the interest of justice, finds it appropriate in the circumstance and in order to have an holistic determination of this suit to invoke the said provision of the law in relation to the admissibility of the documents. Consequently, all objections relating to the forgoing exhibits are discountenanced and the said exhibits are accordingly admitted in evidence. I then turn to the issues for determination. With regards to issue one, I must start by stating that the narrowing of the conflict between the parties to the determination of whether the agreement executed between the Claimant and the Defendants on the 21st of August 2017 was executed under duress or not is predicated on the fact that the Defendants have admitted that they were contract staff of the Claimant; that the Claimant employed them specifically for the contract job awarded to the Claimant by BW Offshore Sendje Berge FSPO Company and that they are paid individually according to the number of days or weeks each person worked. That relationship to that extent has clearly been admitted and facts admitted need no proof. The Supreme Court in CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC) held that: “…an admitted fact is no longer a fact in issue. The same principle was enunciated in Bunge v. Governor Rivers State (2006) 12 NWLR (Pt. 995) 573 where it was held at page 600 that: “When a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted.” Per OGUNBIYI, J.S.C. That said, the narrative which gave rise to the issue for determination is that the Claimant alleged that aside from the contract of employment which existed between her and the Defendants as seen in the contract of employment tendered as Exhibit C2, the Defendants compelled the Claimant to execute a contract for payment of end of project payoff/terminal benefit from Sendje Berge FPSO Company. The Claimant posited that upon blockade of the Helipad with scaffold, the Defendants demanded the execution of the agreement and payment of the said sum. The Claimant also added that in consideration of the protest, threat and hostage of other workers, the said money demanded was paid before the Defendants removed the scaffold on the helipad on 28th of August 2017 while the Claimant reported to the Police on the 31st of August 2017. What the foregoing suggests is that the Claimant is contending that there was no freedom of contract between the Claimant and defendant in respect of the agreement executed on the 21st of August 2017 as the agreement was executed under duress. The question that follows naturally is what is freedom to contract and can it be vitiated by duress. The Black’s Law Dictionary, 10th Edition at page, 779 explained that: “Freedom of Contract is the Doctrine that people have the right to enter into binding private agreement with others; a judicial concept that contracts are based on mutual agreement free of choice, and should not be hampered by undue external control such as governmental interference.” Arising from the foregoing, there is no gainsaying that one of the hallmarks of ‘mutual agreement’ that is free of choice is the voluntariness exhibited by each party in such agreement and the word ‘voluntary’ was defined by the court in the case of OYELARAN I, OLORO OF ORO & ANOR V. OLAYIOYE & ORS (2013) LPELR-20502(CA) where the court held that: “The word, “voluntary”, an adjective, means: “1. Done by design or intention . 2. Unconstrained by interference; not impelled by outside influence”, see Black’s Law Dictionary, Seventh Edition, page 1569.” Per OBANDE FESTUS OGBUINYA ,J.C.A ( P. 23, paras. B-C ). Such outside influence that should not impel one’s voluntary will in entering a contract is what gave rise to the identification of vitiating elements of contract which includes duress generally, and in more narrow recognition, economic duress. The court in OILSERV LTD V. L. A. IBEANU & COMPANY (NIG) LTD & ANOR (2007) LPELR-5149(CA) stated in respect of duress that: “To be forced to do an act is in the realm of duress. Duress involves coercion. It requires actual or threatened violence to the person.” Per OLABODE RHODES-VIVOUR ,J.C.A ( P. 18, para. D ) In addition to the foregoing, the court in C.C.C. Thrift & Credit Society v. Ekpo (2001) 17 NWLR (Pt. 743) 649 posited that: “In Black’s Law Dictionary, 6th Edition at page 504, the word duress, is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent. “Per EKPE, J.C.A.(Pp. 32-33, paras. G-B). The concept of duress as a common law concept was initially confined to actual threat or violent threat as can be seen in the definition above, but it has over the years evolved to include duress of goods and economic duress and the narrative of the instant case being one that concerning an alleged forced agreement between an employer and its employees is one that comes within the realm of economic duress. Whichever the case, duress is predicated on the notion that one should not be forced into contracting with another but should bargain voluntarily and willingly. The Nigerian Courts have taken a cue on the concept as a vitiating element of a contract as held in the case of SANTRADE INVESTMENTS LTD & ORS V. TINO ELECTRONICS NIGERIA LTD (2010) LPELR-4931(CA) that: “Consequently, a man who entered into a contract under duress may either affirm or avoid such a contract after the duress has ceased, otherwise he may be held bound on the ground of ratification. See ORMES VS. BEADEI (1860) 2 DEGF & 133; MICHELI VS. HOMRAY (1881) 8 QBD 587; ALL CARD VS. SKINNER (1887) 36 CH.D. 145.”Per SAULAWA, J.C.A.(Pp. 12-13, paras. F-A). It is perhaps in the light of the forgoing that the Claimant is attempting to avoid the agreement executed on the 21st of August, 2017. In other to succeed in the avoidance of the said agreement which is alleged to have been executed under duress, the court in Universe Tankships Inc of Monrovia v. ITF [1983] 1 A.C. 366, posited that there are “two elements to be proved in the wrong of duress: (i) pressure amounting to compulsion of will of the victim, and (ii) the illegitimacy of the pressure exerted.” The burden of proving the foregoing elements is placed on the Claimant particularly in view of the fact that the general rule of proof in a civil claim is that he who asserts must prove. The court in the case of OLUDE v. ADEESO (2015) LPELR-25587(CA) held that: “It is trite that the burden of proof in a civil suit or proceeding lies on that person who fail if no evidence at all were given on either side. See Section 132 of the Evidence Act 2011 as amended. Further to the foregoing Section is Section 133 (1) which dictates the party on whom the burden of proof lies. I reproduce herein below Section 133 (1) of the Evidence Act. “In civil cases, the burden of first proving existence or non -existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading”. In the instant case, the Claimant has alleged that on the 17th of August 2017, the Claimant’s personnel manager was informed by BW Offshore that the Defendants are demanding for N47,000,000.00 each as end of project payoff/terminal benefit which the said BW Offshore refused to pay as it was not part of their agreement with the Claimant. The Defendants therefore protested and blocked the Helipad with scaffold and other dangerous objects to prevent helicopters from going out or coming in and thereby holding other workers on board hostage. They added that the Defendants then scanned the agreement and sent to the Claimant to make payment on pro rata basis on the basis of the number of years the Defendants have worked. The Claimant stated that the Defendant promised to lift the blockade if the Claimant signs and makes payment. The Claimant stated that the Managing Director of the Claimant company was then compelled to sign against his will due to the crisis offshore and followed up with payment of the said sum. The Claimant on the 31st of August, 2018 reported the incidence to the police, after the scaffold and dangerous object was removed on the 28th of August 2018. In view of the foregoing, Claimant tendered Exhibit C2 to prove that the payment of end of project payoff/terminal benefit was not part of the contract of employment originally entered into with the Defendants. Then they tendered Exhibit C3 which were the pictures of the Defendants with scaffold to prove that there was indeed a blockade of the Helipad as alleged. Claimant also tendered Exhibit C4 which is the letter written by the lawyer of the Claimant to the Commissioner of police where the incident was reported as criminal activities. In addition, the Claimant tendered Exhibit C5 which is a copy of the Agreement sought to be avoided dated the 21st of August, 2017. Lastly, the Claimant tendered Exhibit C6 which comprises the two letters written by the Claimant to Heritage Bank on the 22nd of August and 23rd of August 2017 Authorizing the payment of the sums of N59,000,000.00 and N10,000,000.00 respectively into the stated accounts bearing the names of the Defendants. The Defendant in reaction to the foregoing allegation wants the court to disagree with the narratives of the Claimant. Although they admit that Exhibit C5 was indeed executed on the 21st of August 2017 which they tendered as DW1B, they contended that the agreement was freely negotiated and agreed upon before execution and all parties were duly represented as it was executed at the Claimant’s office. They added that prior to the execution, they had presented a proposal, Exhibit DW1A, which is headed ‘BW Project Workers Demands’ and that although the Claimant initially turned down the proposal before they peacefully approached the Claimant for negotiation. They posited that there was no blockade of the Helipad (which counsel to the Defendant rightly prefers to be referred to as Helideck, since it is a platform offshore). The Defendant contended that the pictures presented in proof of the blockade are similar to Exhibit DW2A –DW2G, which are pictures of workers on scaffold as well. The Defendants contended that it was when they demanded for the balance of the agreed sum that the Claimants used police to harass and intimidate them so that they will forego the balance. Defendants tendered Exhibit DW1C to prove that the Defendants filed a Fundamental right enforcement procedure in January 2018 against 7 Respondents including the Claimant for such harassment. The Defendants also contended that there was sufficient security personnel around the Berge to prevent the alleged act of blockade and that the incident was never reported in the media or embassies of the foreigners on board if indeed such incident occurred. It is in the light of the foregoing that the question of whether there was any pressure amounting to compulsion of will of the Claimant in the execution of Exhibit C5/DW1B (End of Project Pay Off Agreement) and whether the pressure was legitimate would be considered. To conduct the consideration, I start by evaluating the pictures tendered by the Claimant to establish the blockade of the helipad as alleged. Generally, a place where an helicopter lands is called an helipad. However, in the instant case, both parties are in tandem as to the fact that the Defendants were employed to work and were indeed working offshore. This means that the platform where an helicopter would land and take off from would most appropriately be called an ‘helideck’ and not an ‘helipad’. An helideck is a platform either on a vessel or offshore structure allowing helicopters to land and take off. Both helipad and helideck are usually denoted by a large letter ‘H’. In view of the foregoing, I have taken a careful look at exhibit C3. The said exhibit comprises 8 set of picture of 6 men and a mounted scaffold on a platform. There is water flow around the platform which indicates that the platform is offshore and the scaffold is mounted on the Helideck in view of the large alphabet ‘H’ boldly written in white on the platform as shown in one of the pictures. On the contrary, the 7 pictures tendered by the Defendants to prove that employees do take routine photographs with scaffold does not share similitude with those tendered by the claimant as the scaffold in those pictures tendered by the Defendants were not shown to be mounted on the helideck. Besides, it is unusual to have scaffold mounted on the helideck in view of the fact that it is offshore with no alternative place of landing for the helicopter. In view of the foregoing, the Claimant has established that the Defendants indeed mounted scaffold to prevent helicopters form coming in and going out of the Berge. Going further, I am not oblivious of the contention of the counsel to the Defendnat that the document was not scanned and that the Claimant did not state how the document was produced particularly in view of the fact that the signature of the Claimant was not in ink. The said contention holds no ground in dispelling the fact that the Defendants set the groundwork leading to the execution of the agreement sought to be avoided. In addition, the Defendants in their own evidence did not tender a copy of the agreement that is different in form from what the Claimant tendered. Exhibit DW1B tendered by the Defendant is also a photocopy and bears no original pen impressed signature. Hence, the contention of the Defendants has no merit. Furthermore, I find that while it has been established that the Defendants are contract workers who were specifically employed for the work at BW Offshore, the agreement executed on the 21st of August has no link whatsoever with the original contract of employment that existed between the Claimant and the Defendants. Also, in view of the fact that the Defendants knew that the Claimant would not want to jeopardize its contract with BW Offshore, it was convenient to demand the payment of the sum of N47.5million to be paid to each employee of the Claimant via Exhibit DW1A. The said Exhibit DW1A gives credence to the fact as recounted by the Claimant that the background to the blockade of the helideck was the failure of BW Offshore to accede to the Defendants’ demand. The word ‘demand’ for what was not earlier agreed does not portray respect for freedom to contract in the circumstance of this case. I have also taken a look at the said exhibit C5/DW1B which is the agreement executed on the 21st of August, 2017 and find it apposite to consider same in substance. The clauses in the agreement reads: “AFTER MUCH DISCUSSION/NEGOTIATION BETWEEN PROJECT TEAM OF SENDJE BERGE FPSO AND MANAGEMENT OF AMBER RESOURCES, ORBITER & ORANGES NIGERIA LIMITED WHICH COMMENCED ON 18/8/2017 BOTH PARTIES HEREBY AGREE AS FOLLOWS: 1. THAT ALL PERSONNEL THAT HAS WORKED CONTINUOUSLY FOR THE PAST SIX MONTHS ACCORDING TO THE LIST PRESENTED BY THE TEAM BE PAID AS FOLLOWS ON PRO RATA BASIS AS AGREED BY BOTH PARTIES: • 1 YEAR TO 3 YEARS ……………N3,000,000.00 • 4YEARS TO 7 YEARS …………..N6,000,000.00 • 8 YEARS AND ABOVE ………….N10,000,000.00 2. THOSE THAT WORKED IN AUGUST ACCORDING TO SIGNED TIME SHEET WILL BE PAID. 3. ALL AMOUNT AGREED SHALL BE PAID WITHIN FIVE (5) WORKING DAYS FROM THE DATE OF EXECUTION (SIGNING) OF THIS AGREEMENT NOT LATER THAN 25TH OF AUGUST 2017. 4. THAT FOR THOSE PERSONNEL ON BOARD DURING THE CRISIS SHALL BE GIVEN SOME COMFORT TO BE PAID SIX (6) MILLION AND TEN (10) MILLION AS AGREED, GIVEN THE FACT THAT SOME OF THEM FALL IN THE LOWER CADRE OF THREE (3) MILLION FOR (1-3YEARS). 5. ALL SEVEN (7) PERSONNEL ON BOARD SENDJE THAT WERE INVOLVED IN THE NEGOTIATION, SECURITY IS GUARANTEED, NO ARREST ON NAF BASE UPON ARRIVAL. Included in the agreement was a list of 22 names of persons and their account number, bank and designation of the named persons. I reckon the contention of counsel to the Defendants that the Claimant and the Defendants can enter into further agreements aside from that entered into from the commencement of their relationship and that such agreement should be regarded as collective agreement. While I must correct an impression to the effect that collective agreement is not automatically binding if same is not incorporated expressly or impliedly into the original contract of employment or referenced therein. See Rector, Kwara State Polytechnic v Adetilo (2007) 15 NWLR (Pt.1056) 42 CA. If there was any such incorporation or reference, the burden is on the Defendants to prove and they have not discharged the burden. In view of the foregoing failure to establish that the agreement is a collective agreement that was incorporated into the contract of employment, it goes without saying that the said agreement stands on its own, far apart from the contracts of employment before this court (Exhibit C2). In addition, while it is right to argue that parties to a contract of employment can negotiate new terms outside the original contract of employment, the issue before the court is not the possibility or otherwise for the parties to agree to new or further terms, rather, what is before the court is whether the Claimant voluntarily agreed or was pressured to agree to the new terms. In view of the foregoing, I find that the content of the agreement does not support the conclusion that the agreement was voluntarily made by the Claimant in view of its distance from the original contract of employment; the proof of the blockade of the Helideck and in view of paragraph 5 of the Agreement which states that no arrest shall be made of 7 personnel on board the Sendje involved in the negotiation. I am also not oblivious of the contention that it is the Claimant’s lawyer that prepared the agreement i.e. Exhibit C5/DW1B. I have taken another look at the said document, there is no franking whatsoever on the face of the document to prove that it was counsel to the Claimant that prepared the agreement. The Defendant also contended that the Claimant only contacted the police after they made demand for a balance that was not paid, which led to the institution of fundamental human right procedure. In this wise, I have taken a look at exhibit C4 which was the letter written to the Police on the 31st of August, 2017 by the lawyer representing the Claimant and I find that the narrative of the letter is the same as that presented before this court in respect of the blockade of the Helideck and demand for execution of the agreement which led to the payment of the sum stated. The petition was for the prosecution of the Defendants for the activities carried out offshore and not for harassment nor preclusion of right to demand outstanding sum. Having said that of the evidence before the court, I must state that the burden of proof on the Claimant is to be discharged on a balance of probability or preponderance of evidence. See Ezemba v. Ibeneme (2004) 14 NWLR (Pt.894) 617 (Per Tobi JSC). The question therefore is whether the Claimant has proved the allegation of duress on a preponderance of evidence in view of the evidence before the court. In OKORIE v. UNAKALAMBA & ANOR (2013) LPELR-22508(CA), the court explained what preponderance of evidence means by holding that: “How then is a case proved by preponderance of evidence or balance of probability? The Black’s Law Dictionary, 8th Edition at page 1220, has proffered an answer that preponderance of evidence is the burden of proof in most civil trials, in which the jury is instructed to find for a party that, on the whole, has the stronger evidence, however slight the edge may be. Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Per AJI, J.C.A. (Pp. 40-41, paras. G-D) In view of the foregoing evaluation of all the evidence before this court and the attendant findings, the evidence presented by the Claimant is sufficient to incline the mind of the court to believe that she indeed executed the agreement dated the 21st of August 2017 under duress with the Defendants. In other words, the claimant has established upon a preponderance of evidence, that she was pressured into executing the agreement executed on the 21st of August, 2017 and that the pressure is illegitimate and I so hold. See B. & S. Contracts and Design Ltd. V. Victor Green Publications Ltd. (1984) I.C.R. 419. Consequent upon the foregoing, it goes without saying that issue one is resolved in favour of the Claimant to the effect that the agreement executed between the Claimant and the Defendants on the 21st of August 2017 was executed under duress and liable to be set aside at the instance of the Claimant. I then turn to issue two, which is “whether or not the Claimant is entitled to the reliefs sought in view of the resolution of issue one”. The resolution of the issue touches on the reliefs sought which are: (a) An order directing the defendants to refund the total sum of N69,000,000.00 being the purported end of project payoff/terminal benefits which the defendants fraudulently collected from the claimant under purported agreement dated 21/08/2017 which the defendants compelled the claimant to sign. (b) A declaration that the agreement dated 21/08/2017 signed by the claimant is null and void as it was signed under duress. (c) N150,000,000.0O being general damages for breach of contract. In order of priority, I find it appropriate to first consider relief (b) which is a declaratory relief urging the court to declare that the agreement executed on the 21st of August 2017 is null and void as it was signed under duress. Without a doubt, a declaratory relief is dependent on the strength of the case of the Claimant and predicated on proof with cogent and convincing evidence. The court in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that: ”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E) Arising from the resolution of issue one, the Claimant is found to have proved that the Agreement signed by the Claimant was signed under duress by presenting: the said agreement dated 21st of August, 2017 i.e. exhibit C5; the circumstances leading to the execution of same starting with the blockade of the helideck via exhibit C3, the authorization to their bank to pay the agreed sum via Exhibit C6 and the report made to the police via Exhibit C4. It is found that on the strength of its own case, the Claimant has proved that she was pressured illegitimately into signing the agreement dated 21st August, 2017. Consequent upon the forgoing, the Claimant has adduced cogent and positive evidence in proof of her claim and is therefore entitled to the declaration sought in relief (b) and same is accordingly granted. With regards to relief (a), there is no gainsaying that same is dependent of the grant of relief (b). In that regard, this court having declared the agreement dated the 21st of August 2017 null and void, same having been executed under duress, it is consequential that the payment made by the Claimant pursuant to the said agreement be reversed. The sum which the Claimant stated that she paid the Defendants and wants to be refunded is the sum of N69,000,000.00 million naira. The Claimant tendered Exhibit C6 which is a letter authorizing Heritage Bank to make the said payment of N59,000,000.00 (fifty-nine million naira) on the 22nd of August 2017 and N10,000,000.00 (ten million naira) on the 23rd of August, 2017 in proof of the said payment. Both documents were duly acknowledged by the Bank. The list of names on the said Exhibit are Chike Tony Nwanju (1st Defendant), Amaechi Nwuko(3rd Defendant), Egho Sunday O. (5th Defendant), John Mark Kenneth(6th Defendant), Ikechukwu Ewurum (10th Defendant), Omoregie Eguagie(4th Defendant), James Omonigho(2nd Defendant), Opia Innocent(9th Defendant), Bright Osaro(7th Defendant) and Tope Akinyemi(8th Defendant). I reckon that the Defendant contended that the Claimant made part payment of the agreed sum, however, the agreed sum is not specifically stated on the face of the agreement and the defendant did not deny receiving the sum of N69,000,000.00. Consequently, the Claimant has by preponderance of evidence proved that the sum of N69,000,000.00 was paid to the Defendants under the agreement executed under duress which this court has declared void. Upon the declaration in relief (b), the Claimant is entitled to the relief (a) and same is accordingly granted to the effect that: This court makes an order directing the Defendants to refund the total sum of N69,000,000.00 being the purported end of project payoff/terminal benefits which the Claimant paid to the accounts of the Defendants pursuant to the agreement dated 21/08/2017 which is declared void. I then turn to relief (c), which is perhaps an order for the payment of N150,000,000.00 being general damages for breach of contract. While I reckon that the Claimant posited that the actions of the Defendants caused the Claimant to suffer severe loss and damage including loss of contract and damage to property of the Claimant’s client, I must state that throughout the entire consideration of this case, there is no evidence in support of loss of contract and damage to any specific property of the Claimant’s client. It is also not clear what contract exactly the Defendant’s breached. Although general damages need no specific proof as the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) held that: “General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B). That notwithstanding, I find that the act complained of by the Claimant which is that the Defendant compelled her to execute a contract did not result in any breach of any other contract and since the general damages sought for is for breach of contract rather than the duress occasioned by the Defendants, there is no basis upon which general damages can be granted and same is accordingly refused. Having addressed all the reliefs sought, it goes without saying that the substantive suit is resolved in favour of the Claimant. In other words, the claims of the Claimant is meritorious in the extent to which the reliefs sought have been granted. I must however add that the order made in respect of relief (a) for the refund of the sum of N69,000,000.00 being the purported end of project payoff/terminal benefits must be complied with within 10 days of the delivery of this judgment failure of which same shall attract interest at 10% per annum. Judgment is accordingly entered for the substantive suit. I then turn to the Counter claim. In this regard, there is no gainsaying that a counter-claim survives the main suit whether or not it succeeds. The court in Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, held that: “It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”. The court in Susannah (Trawling Vessel) v Abogun (2007) 1 NWLR (Pt.1016)456 at 488 added that: “A withdrawal or failure of the principal action does not necessarily affect or prejudice the existence of the counter-claim and vice-versa”. Consequently, the counter-claim, despite the success of the substantive suit is worthy of the sequel attention to be accorded to it by this court. That said, the Defendant/Counter-Claimant claims against the Defendant the following reliefs: a) AN ORDER directing the Claimant to pay to the Defendants the total sum of N6,075,000.00 only being the balance or outstanding amount including unpaid salaries owed to the Defendants by the Claimant as a result of the Agreement dated 21st August, 2017. b) Payment of interest at the rate of 20 percent per annum on the sum of N6,075,000.00 from the 14th day of September, 2017 when this matter was filed till the date judgment will be delivered and subsequently paid being the prevailing lending interest rate. c) Payment of the sum of One Million, Five Hundred Thousand Naira (N1,500,000.00) only being and representing the cost of this litigation. d) The sum of Ten Million Naira (N 10,000,000.00) only being General Damages for breach of Agreement of 21st August, 2017 which has put the Defendants into pains, stress and huge financial loss. The peculiar facts in relation to the Counter-claim is that the Defendant/Counter Claimant posited that the Claimant/Defendant upon executing the Agreement of the 21st of August, 2017 made part payment and promised to pay the outstanding which has not been paid. The Defendant/Counter Claimant put the sum yet to be paid at a total of N6,075,000.00 comprising N4,000,000.00 outstanding balance for Sunny Egho arising from the agreement executed on the 21st of August 2017 and the salaries owed to Amaechi Nwuko at N713,000.00, Chike Tony Nwanju at N630,000.00, James Omonigho at N630,000.00 and Sunny Egho at N102,000.00. The Defendant/Counter Claimant wants interest paid on the said sum and general damages for the Claimant/Defendant’s breach of the agreement entered on the 21st of August 2017 in view of the failure to fulfill the promise of paying the outstanding. The Claimant/Defendant on their part having posited that the Agreement of 21st August 2017 was not voluntarily negotiated and executed added that the Defendant/Counter Claimant did not work for the period they embarked on riot that would warrant payment and that the said claim for salaries is not proved. Upon the foregoing, I have taken into account the reliefs sought in the counter claim and a review of the issues formulated and argued by counsel to both parties in the substantive suit and consequently finds that the sole issue for the determination of the counter claim is to wit: Whether the Defendant/Counter Claimant is entitled to the reliefs sought. In resolving the sole issue with touches on the reliefs sought by the Defendants/Counter Claimants, I find it apposite to address the reliefs accordingly. With regards to relief (a), I must state that one part of the relief touches on the resolution already made in the substantive suit with respect to the status of the agreement executed on the 21st of August, 2017. In that wise, the sum of N6,075,000.00 which is claimed includes the sum of N4,000,000.00 arising from the said agreement. In view of the resolution by this court in the substantive suit that the Agreement executed on the 21st of August 2017 was executed under pressure and has been declared void, it becomes axiomatic that the sum claimed to be outstanding to the Defendant/Counter Claimant loses a foundation upon which it can be predicated, consequently, the claim to that extent fails. With regards to the part of the claim for unpaid salaries owed to the Defendants/Counter Claimants which have been particularized in specific sums, there is no gainsaying that the claims fall within the realm of special damages which must not only be specifically pleaded but also strictly proved. In this regard, the court in the case of Egom v. Eno (2008) 11 NWLR (Pt.1098) held that: “In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A) To ascertain whether the Defendants/Counter Claimants have strictly proved their claim for unpaid salaries, I have taken a further look at the evidence before this court as tendered by the Defendants/Counter-Claimants i.e. Exhibits DW1A-C and DW2A-G and I find that none of the said exhibits has a nexus with unpaid salaries. There is no evidence before this court to ascertain how each named person earned the sum placed across their names whether it is a monthly sum or weekly sum. It is also uncertain under what agreement the stated sum accrued and means of proof that same has not been paid. I must state without much ado that the claim for unpaid salaries suffers dearth of proof and same is accordingly refused. Consequently, relief (a) lacks merit and is accordingly dismissed. With regards to relief (b), there is no gainsaying that the interest of 20% sought is dependent on the award of the sum of N6,075,000.00 under relief (a). Upon the failure of relief (a), it is axiomatic that there is no basis upon which the said interest rate will be awarded. Relief (b) therefore fails and same is accordingly refused. Relief (d) which is for general damages for breach of agreement executed on the 21st of August, 2017 also suffers similar fate in view of the analysis earlier made of general damages and the fact that the said agreement have been declared void by this court in the Substantive suit. The Agreement of the 21st of August 2017 never existed ab initio and same can in no way be regarded as breached. The law is trite that you cannot place something on nothing, it will collapse. See UAC v. Mcfoy (1962) A.C. 152. The said relief must collapse and is accordingly refused. I then turn to relief (c), which is considered as cost of litigation. In determining this relief, I reckon that the court cautioned in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) that: “…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F). Bearing in mind the foregoing admonition by the court, I have taken into account the fact that the Defendants/Counter-Claimants are not the wronged party in the substantive suit and neither are they successful in their counter-claim. Consequently, they do not deserve the exercise of the discretion of the court in award of cost and the said relief (c) is accordingly refused. In the final analysis, it goes without saying that the sole issue formulated for the resolution of the Counter-Claim is resolved against the Defendants/Counter-Claimants and in favour of the Claimant/Defendant to the effect that the Defendants/Counter-Claimants are not entitled to the reliefs sought. In other words, the counter-claim is found to lacks merit in all ramification and same is accordingly dismissed in its entirety. Judgment is accordingly entered. I make no order as to cost. ………………………………………………………… HON. JUSTICE Z. M. BASHIR JUDGE
