EMMANUEL OTAKAGU -VS- TONY IHENATU & Ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE

DATE: 22^NDOCTOBER, 2019 SUIT NO: NICN/CA/13/2013

BETWEEN

EMMANUEL OTAKAGU ………………………………. CLAIMANT

AND

TONY IHENATU
ARCHY PHARMACEUTICAL LTD DEFENDANTS

REPRESENTATION

AGBO UNO Esq. for the Claimant

ESSIEN BASSEY OKON Esq. for the Defendants

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a Complaint filed 17^th January, 2013. By an amended Statement of Facts dated 15^th June, 2016 and filed 16^th June, 2016, the Claimant seeks the following reliefs:

N800,000 as monthly salaries and allowances from June, 2011 to March, 2012

25% interest on the judgment sum from March, 2012 till judgment is delivered

N10 Million Naira as general damages

SUMMARY OF FACTS

According to the Claimant, he was employed by the Defendant sometime in June, 2011 as a medical sales consultant with an annual salary of N960,000.00 (Nine Hundred and Sixty Thousand Naira) to cover Port Harcourt. In November, 2011, he was posted to Calabar where he later resigned his appointment in March, 2012. That for a period of 10 months that he worked for the Defendant, he was not paid salaries and allowances running into N800,000.00 (Eight Hundred Thousand Naira) which, amongst others, has given rise to this suit.

On their part, the Defendants, by an amended Statement of Defence/Counter Claim dated 1^st November, 2017 and filed same day, the Defendants stated that the Claimant was employed as a sales representative in Port Harcourt and posted to Calabar, and not as a Medical Sales Consultant. Claimant’s employment was facilitated by the National Sales Manager, Lagos, who was also a friend of the Claimant. Both of them resigned when it was discovered they were defrauding the company. That the appointment letter by the Claimant was a forgery:– not dated and the signature on same was forged. That the annual salary of the Claimant was N840,000.00 (Eight Hundred and Forty Thousand Naira). On the discovering of the various fraudulent activities of the Claimant, he was invited to Lagos for the Claimant to reconcile his account, the Claimant never showed up. Defendants stated further that the Claimant is not entitled to any arrears of salaries as he deducted same from his text message sent to the 1^st Defendant which the Claimant pleaded

On their Counter Claim, the Defendants, while relying on paragraphs 1 to 28 of their Statement of Defence, went on to state that the Claimant is owing the Defendants a total of N1,744,476 (One Million Seven Hundred and Forty Four Thousand Four Hundred and Seventy Six Naira) as contained in the ledger of the Defendant.

Whereof the Defendants claim against the Claimant as follows:

An Order for refund of N1,755,476 (One Million Seven Hundred and Forty Four Thousand Four Hundred and Seventy Six Naira) standing against the Claimant in the accounts of the Defendant
An Order for the return of invoices, ledgers and other documents in the possession of the Defendant
N1,200,000.00 (One Million Two Hundred Thousand Naira) cost against the Claimant.

COMMENCEMENT OF HEARING

Hearing in this suit, which has a chequered history, started with my Learned Brother, Honourable Justice O.A Obaseki. On being transferred, the matter was heard by my Learned Brother Honourable Justice E.N Agbakoba. On being transferred, hearing commenced before my very self on the 18^th of January, 2017. Claimant testified as CW1, identified and tendered documents which were admitted as exhibits. On the 19^th of September, 2017 when this case was called up, Claimant informed Court of his amended Statement of Facts and his witness statement on oath dated 20^th June, 2017. He, at the same time, adopted his witness statement on oath dated 20^th June, 2017. He was cross examined. Thereafter, Claimant closed his case on 24^th October, 2017.

On their part, the Defendants opened their defence on the 11^th of April, 2018 by calling one Nsa Ekpo as DW1. He adopted his witness statement on oath and tendered documents admitted in evidence as Exhibits. He was cross examined and re-examined. Thereafter, the Defendants closed their defence 12^th of June, 2018.

Thereafter, case was adjourned to enable parties file, exchange and adopt their final written addresses.

DEFENDANTS’ FINAL WRITTEN ADDRESS

In Defendants’ final written address dated and filed 2^nd November, 2018, Counsel on behalf of Defendants formulated two (2) issues for determination:

Whether the Claimant is being owed monthly salaries and allowances from June, 2011 to March, 2012 amounting to N800,000.00 on the preponderance of evidence before the Court.

Whether the Counter- Claimants are entitled to the payment of the total sum of One Million Seven Hundred and Fifty Five Thousand Four Hundred and Seventy Six Naira as stated in the ledger of the 2^nd Defendant tendered and admitted in evidence is entitled to interest on his monetary claim

ARGUMENT

ON ISSUE 1: Whether the Claimant is being owed monthly salaries and allowances from June, 2011 to March, 2012 amounting to N800,000.00 (Eight Hundred Thousand Naira) on the preponderance of evidence before the Court.

Learned Counsel submitted that in Exhibit C4 which is a text message titled letter of account reconciliation (part 1) dated 15^th March, 2012 Claimant stated thus My salary for the period of ten months I worked for you but was not paid = N760,000 only. Also, another batch of returned drugs sitting in your car right now awaiting driver when he comes to pick up your car = N183,200. Subtracting all these (my payment so far, returned stock, my salary, the second batch of returned drugs) from the total stock under me, we have a balance of N1,172,947.

It is the submission of Learned Counsel that from the foregoing, the balance still standing unrefunded by the Claimant to the 1^st Defendant is N1,172,948 as stated in Exhibit C4 above.

Learned Counsel finally submitted that Claimant had already deducted what was owed him as salary from the money of the 1^st Defendant in his possession. Therefore his claim for unpaid salaries is unfounded and false.

ON ISSUE 2: Whether the Counter- Claimants are entitled to the payment of the total sum of One Million Seven Hundred and Fifty Five Thousand Four Hundred and Seventy Six Naira as stated in the ledger of the 2^nd Defendant tendered and admitted in evidence

Learned Counsel to Defendants submitted that the Claimant never filed any process in challenge of the Defendants’ counter claim. The rule on uncontroverted or unchallenged evidence has been extensively discussed by the Supreme Court in Owners of M.V Gongola Hope V. Smurfit Cases Ltd (2007) All FWLR (Pt.388) 1005 SC where the Apex Court held that where the evidence of a Plaintiff is unchallenged and uncontroverted, particular where the opposite party had the opportunity to do so, it is always open to the trial Court seised with the matter to accept and act on such unchallenged and uncontroverted evidence.

Learned Counsel submitted further that facts admitted need no further proof.

It is the submission of Learned Counsel that the Counter Claimants are entitled to a refund of N1,755,476 owed them by the Claimant.

CLAIMANT’S FINAL WRITTEN ADDRESS

On receipt of Defendant’s final written address, Learned Counsel to Claimant filed their final written address on 8^th November, 2018, formulating two (2) issues for determination, that is:

Whether there was a valid contract of employment between the Claimant and the Defendants

Whether from the totality of evidence before this Court, the Claimant has proved his case.

ARGUMENT

ON ISSUE 1: Whether there was a valid contract of employment between the Claimant and the Defendants

Learned Counsel to Claimant submitted that a contract is an agreement between two parties and where there is a valid contract, parties must be held bound by the agreement and all the terms and condition of the agreement. He relied on Jeric (Nig) V. Union Bank Nig Plc (2000) 15NWLR (Pt.691) P.447 SC

That in the case herein, Exhibit C3 represents the contract between the Claimant and 2^nd Defendant, and in the said Exhibit C3 it is stated that the Claimant was employed as a Medical Sales Consultant and not as a Sales Representative as posited by the Defendants.

Learned Counsel submitted further that all through the trial, the Defendants did not substantiate their claim with credible evidence to debunk the Claimant’s claim. Facts deposed to in pleadings must be substantiated and proved by evidence. In the absence of which the averments are deemed abandoned. He relied on Aregbesola V. Oyinola (2011) 9NWLR (Pt. 1253) 458 @pg. 594 Para A-B.

It is the submission of Counsel to the Claimant that failure of the Defendants to substantiate that the Claimant was not employed as a Medical Sales Consultant leaves this Honourable Court with doubt as to the veracity of the claim of the Defendants. Exhibit C3 clearly shows that there was an existing employer-employee relationship between the parties.

Learned Counsel therefore urged the Court to resolve this issue in favour of the Claimant.

ON ISSUE 2: Whether from the totality of evidence before this Court, the Claimant has proved his case.

Learned Counsel to Claimant submitted that Exhibit D2 (a copy of ledger of payments and indebtedness of the Claimant to the 2^nd Defendant)which is a computer generated document, though admitted, contravenes Section 84 of the Evidence Act, 2011. No proper foundation in line with Section 84(4) of the Evidence Act, 2011 was laid before same was tendered; and a cursory look at the document shows that it was not signed or dated. That the law is trite that a document not signed, even when admitted in evidence, no probative value should be attached to same. He relied on Omega Bank (Nig) Plc V. OBC Ltd (2005) 8NWLR (Pt.928) 547 @ 581 para C – D; APGA V. Al Makura (2016) All FWLR (Pt. 826) P.471 @494.

Learned Counsel submitted further that even if the Court was to attach any probative value to Exhibit D2, same should have some corroboration in the form of the way Defendant made payment to the Claimant – whether cash payment or by crediting his account. In the absence of this, the Court cannot rely on Exhibit D2.

On Exhibit D4, Learned Counsel submitted that it is a document made during the pendency of this suit and same contravenes Sections 83(3), 91(3) of the Evidence Act, 2011. The law is trite that documents made when proceedings are pending or in anticipation of same are inadmissible. When admitted, no probative value should be attached to same. He relied on Owie V. Ighiwi (2005) NWLR (Pt. 917) 184 @219 – 220. He therefore urged the Court not to attach any probative value to same.

On the matter of fraud alleged by the Defendants, Learned Counsel submitted that the Defendants failed to plead and prove the particulars of fraud. He relied on Macron Services (Nig) Ltd V. Afro Continental (1995) 2NWLR (Pt.376)201.

On the position of the Defendant that the Claimant did not challenge their counter claim, Learned Counsel submitted that Defendants are only trying to mislead this Court as the Claimant has, on record, adopted his written depositions and thus relied heavily on his reply to Statement of Defence and Counterclaim dated and filed 31^st March, 2015. He therefore urged the Court to discountenance the submissions of Defendants under this head.

It is the submission of Learned Counsel that from Exhibit C1 – C3; C4(1) – (4) tendered by the Claimant, the Claimant has been able to prove his case before this Honourable Court and also defended himself against the Counter claim of the Defendants.

He therefore urged the Court to so hold.

COURT

Having gone through the case of the Claimant, the defence/Counterclaim of the Defendants and the submissions of both Counsel, this Court has distilled two issues for the determination of the case, to wit:

Whether the Claimant has proved his case to be entitled to the reliefs sought

Whether the Defendants have proved their case to be entitled to the reliefs sought in their Counterclaim

ISSUE 1: Whether the Claimant has proved his case to be entitled to the reliefs sought

The case of the Claimant is predicated on his unpaid salaries for 10 months spanning June, 2011 to March, 2012 the period he was employed by the 2^nd Defendant as Medical Sales Consultant. The Defendants, while not denying that the Claimant was employed by them, stated however that he was not employed as a Medical Sales Consultant but a Sales Representative; his salary was not N960,000.00 (Nine Hundred and Sixty Thousand Naira) annually but N840,000.00 (Eight Hundred and Forty Thousand Naira); the Claimant on resigning deducted the sum of N760,000.00 (Seven Hundred and Sixty Thousand Naira) from the money of the 2^nd Defendant in his possession as what was owed him.

On the position of the Defendants that the employment letter tendered by the Claimant is a forgery as they never employed the Claimant as a Medical Sales Consultant but a Sales Representative, this Court wishes to state that the settled law is that he who alleges must lead evidence in support of his allegation(s). In the case herein, the Claimant alleges that he was employed as a Medical Sales Consultant and goes ahead to tender Exhibit C3 as his employment letter in proof of his employment. If the Defendants are saying that they employed him as a Sales Representative and not a Medical Sales Consultant, it behoves the Defendants to lead evidence in support of their case by tendering a copy of the employment letter to which the Claimant was employed as a Sales Representative. It is the Defendants who stand to lose if they are unable to provide the employment letter stating that the Claimant was employed as a Sales Representative and as such, the onus is on them to so prove. See University of Ilorin V. Rasheedat Adesina (2010) 9NWLR (Pt.1199) p.331 @348 – 349 where the Court held:

By virtue of Section 137 (1) and (2) of the Evidence Act, the burden of first proving the existence or non existence of a fact in civil cases 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 pleadings. If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and on successively , until the issue in the pleading has been dealt with. In the instant case, the burden lay squarely on the Respondent to prove the allegations made in her pleadings because she was the one who asserted facts she sought to prove. And after she adduced evidence in support of her pleadings, the burden shifted to the Appellant to prove the contrary.

Incidentally, in the case herein, rather than tender a letter of employment bearing the name of the Claimant, they chose to tender a document evidencing the form of contract they would have with any person employed as a consultant. The said sample of the contract cannot discharge the onus on them to lead evidence as to the employment of the Claimant as a Sales Representative and not a Medical Sales Consultant. In the absence of any document contradicting Exhibit C3 tendered by the Claimant, this Court finds and I so hold that the document evidencing the employment relationship between the Claimant and the 2^nd Defendant is Exhibit C3. By way of digression, I will like to say that the arguments of the Defendants that the Claimant was employed as a Sales Representative is uncalled for as I cannot see anything that makes the salary earned as a Medical Sales Consultant different from the one earned by a Sales Representative. In this era of packaging where research assistants are packaged as research consultants; marketing representative of banks are packaged as Marketing Executive, I really do not see any aberration if in the pharmaceutical cycle, sales representatives are packaged as sales consultant. So irrespective of what you are called or what is written on the employment letter, the Court looks at the intent and compare same with what you really do to come to the conclusion of who you really are. Just as the Bible will put it – By their fruits we shall know them. So to put it succinctly, by their fruit we know who a Research Consultant really is; who a Marketing Executive really is and who a Medical Sales Consultant really is. This happens always and it happens not in the good times but when the chips are down. Only then is the true identity of who is hitherto called Research Consultant, Marketing Executive and Medical Sales Consultant unveiled.

Now, having earlier held that the document evidencing the employment of the Claimant with the Defendants is Exhibit C3, the Court will proceed to look at the document to determine the terms and conditions of the employment relationship between the Claimant and the 2^nd Defendant.

As regards salary of the Claimant, Exhibit C3 states that the annual salary of the Claimant shall be N960,000.00 (Nine Hundred and Sixty Thousand Naira) annually. The said letter of employment goes ahead to give the breakdown in Naira as follows:

Ø Basic salary – 480,000

Ø Housing Allowance – 240,000

Ø Leave Allowance (10% of Annual Basic Salary – 48,000

Ø Lunch Allowance – 48,000

Ø Other Allowance – 144,000

The total from the above is N960,000.00. Now if the Court was to spread the sum over 12 months, the salary of the Claimant would be N80,000.00 (Eighty Thousand Naira) monthly. Consequently, this Court finds and I so hold that the monthly salary of the Claimant at all material time leading to the institution of this suit is N80,000.00(Eighty Thousand Naira). The Claimant seeks the sum of N800,000.00 (Eight Hundred Thousand Naira) as the total sum of salaries owed him for 10 months. Given a salary of N80,000.00 monthly, the proper sum one will arrive at for 10 months is N800,000.00 as stated by the Claimant.

Still on the employment letter, it is stated that after the probation period of 6 months, either party is entitled to terminate the employment by giving two months’ notice or two months’ salary in lieu of notice. The resignation message sent by email by the Claimant to the Defendants is dated 7^th March, 2012. In the said message, the Claimant tactically stated that he would be giving one month notice. I must pause here to state that the law which state a month’s notice or a month’s salary in lieu of notice does not envisage 30 days but a calendar month. Therefore, if the Claimant was giving notice of his resignation, it is not from 7^th of March to 7^th of April but the 1^st of March to 31^st of March or 1^st of April to 30^th April. This is what makes a calendar month, and I so hold. Therefore, in March, 2012 when the Claimant tendered his resignation letter, he was supposed to be talking about forfeiting his salaries for March and April, 2012 in lieu of notice or refunding his salaries for January and February, 2012 in lieu of notice, or sending a letter ahead of March, 2012 to qualify the Month of March and April as the two months’ notice required by the letter of employment. It is actually a misnomer for the Claimant to write a letter of resignation on 7^th March, 2012 and still term that same month as the one month notice. It is more so a misnomer when his letter of employment provides for two months’ notice and not one month. By this calculation, Claimant ought to forfeit two months’ salaries for want of proper notice. If these two months were to be deducted from his salary arrears of 10 months which is N800,000.00, the Claimant will be left with N640,000. Be that as it may, the Defendants themselves did not raise the issue of two months’ notice or two months’ salary in lieu of notice. Perhaps they were too busy denying the existence of the employment letter to the point that they couldn’t see the bright side of the dark side of the employment letter. That said, the case of the Claimant is the case presented by the Claimant and the case of the Defendant is the case presented by the Defendant. It has never been and it will never be the duty of the Court to present a case different from what is presented to it by the parties before it. The Defendants herein, having failed to make a case on two months’ notice or two months’ salary in lieu of notice, it is not the duty of the Court to make out a case on that for them, and I so hold.

On unpaid salaries owed the Claimant, Defendants posited that all they owed the Claimant had been deducted by the Claimant in Exhibit C4 which is an email letter to which the Claimant among other things stated the deductions from the money of the Defendant in his possession including the sum of N760,000.00 (Seven Hundred and Sixty Thousand Naira) which is the salary owed him by the 2^nd Defendant. If the Claimant did this, it means he exercised his power of lien over the money of the 2^nd Defendant in his possession. If he had done this already, I wonder why he is still in Court claiming N800,000.00 as unpaid salary for 10 months.

I have carefully gone through Exhibit C4 which is the mail by which the Claimant stated by his very self the deduction of N760,000.00 as his unpaid salary as at March, 2012. From the facts of this case, the Claimant did not proffer any reason he deducted N760,000.00 as his salary and yet turns around to ask for N800,000.00 as unpaid salary. Be that as it may, the settled law is that it amounts to double jeopardy for a party who has been compensated for his loss to be compensated the second time on the same loss. See Makinde V. Omaghomi (2011) All FWLR (Pt.578) 989 @1004, Para. C-D where the Court heard as follows:

….once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus.

Flowing from the above, I will like to say that this Court is a Court of justice, equity and good conscience but not a Santa Claus or a Father Christmas. Given the circumstances, this Honourable Court is hard put to award the Claimant the sum of N800,000.00 claimed as unpaid salaries when he by himself had earlier deducted the sum of N760,000.00 from the money of the 2^nd Defendant in his possession, and I so hold.

Subsequently, the claim of the Claimant is bound to fail, and I so hold. Same goes for the ancillary claim on 35% interest on the judgment sum and the 10 Million Naira damages claimed by the Claimant.

Consequently, the case of the Claimant is hereby dismissed for lacking in merit.

ISSUE 2: Whether the Defendants have proved their case to be entitled to the reliefs sought in their Counterclaim.

Generally, a Counterclaim even though arising from the substantive suit is a distinct suit which is determined on its own merit. In the case herein, the Counterclaim of the Defendant is predicated on Exhibit C4 tendered by the Claimant and the document tendered by the Defendant as a copy of ledger of payments and indebtedness of the Claimant to the Defendants. Given that the Claimant raised objection to the admissibility of the document and the weight to be attached to it on the ground that the document is a computer generated document which fails to comply with Section 84 of the Evidence Act, 2011, this Court is minded to reproduce the said section. The said section provides as follows:

(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred 10 in subsection (1) of this section are

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer, in the ordinary course of those activities, information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

Furthermore, it is provided in subsection (4) of Section 84 of the Evidence Act, 2011 as follows:

(4)In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate -.

(a) identifying the document containing the statement and describing the manner which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer

(c) Dealing with any of the matters to which the conditions mentioned in

subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate and for the purpose of this subsection, it shall be sufficient for a matter to be stated to the best of the knowledge and the belief of the person stating it.

From the facts and documents before me, this Court finds that there are documents tendered by both sides which are computer generated documents to which none of the parties complied with the Evidence Act as regard certificate of compliance. For the avoidance of doubt, all the documents tendered by the Claimant as email messages between him and the Defendants are computer generated documents yet the Claimant did not file any certificate or swear to any affidavit of compliance. So for the Claimant to turn around and capitalize on the failure of the Defendants to comply with the Evidence Act is reminisce of the case of the kettle calling the pot black. Be that as it may, by virtue of the Act establishing this Court, this Court is empowered to deviate from the Evidence Act (see generally Section 12 (2) (b) of the National Industrial Court Act, 2006; see also Order 5 Rule 6(2)(b) of the National Industrial Court (Civil Procedure) Rules, 2017) if it finds that adhering to the evidence act will occasion injustice on the case before it. In this vein, this Court is minded to deviate from the Evidence Act especially when the application of same as intended by the Claimant against the Defendants will occasion injustice against the Defendants given that both parties are culpable of the same omission, and I so hold.

The other document relied on by the Defendants in proof of their counter claim that the Claimant owes them the sum of N1,755,476.00 (One Million Seven Hundred and Fifty Five Thousand Four Hundred and Seventy Six Naira) is Exhibit C4 which is a mail written by the Claimant himself. In the said mail, the Claimant, amongst other things, stated as follows – ……….Subtracting all these (my payments so far, returned stock, my salary, the second batch of returned drugs) from the total stock under me, we have a balance of 1,172,948naira. Furthermore, unreceipted monthly float of fuel and phone calls of N28,000.00naira and 3000naira respectively amounted to 310,000naira for a ten months period. This produces a balance of 862,948naira only. In addition, I shall forward to you by courier the receipted expenses of car repairs, out station allowance, clinical meetings expenses, local govt permits document and others. Thanks.

Now it seems to be that if the Defendants did not miss reading the part where Claimant stated the balance to be N1,172,948, they indeed missed the later part where he stated the balance to be N862,948 as well as the part where he mentioned additional expenses of receipts on car repairs, clinical expenses etc. When you factor all of this together, there is no way you will come to the conclusion that the Claimant owes the Defendants the sum of N1,755,476.00 (One Million Seven Hundred and Fifty Five Thousand Four Hundred and Seventy Six Naira) as claimed by the Defendants.

From the facts and evidence before me, the Defendants have not be able to prove to the satisfaction of this Honourable Court that the Claimant owes them to the tune of N1,755,476.00 (One Million Seven Hundred and Fifty Five Thousand Four Hundred and Seventy Six Naira) as claimed, and I so hold.

I have evaluated the facts of this case and have juxtaposed all the documents tendered by the Claimant and the Defendants in proof of their respective cases and the only conclusion I can arrive at is that the Claimant is not sure what the Defendants owe him and the Defendants are not sure what the Claimant owes them. In this regard, what they have succeeded in doing is to file a case and leave the Court to speculate on what is and what is not. Be that as it may, the Court is not a Court of speculation but a Court of cold facts and unimpeachable evidence. See Stephen Idugbue & Sons Ltd V. Anenih (2003) FWLR (Pt.149) 1418 @1437, Para. H-A where the Court held as follows:

In the absence of evidence, the Court is not open to speculate on what is not before it as Court of law considers only cold facts as evidence before it and not fiction or imaginary evidence. The rule is that the Court has nothing to do with what is not before it. (nihil habet forum ex scena). A Court of law is not a charitable institution. Its duty in litigation is to render unto everyone one according to his proven claim.

From all that have been said above, the counterclaim of the Defendants fails and same is hereby dismissed.

Conclusive, both the case of the Claimant and the Counter claim of the Defendant are hereby dismissed as lacking in merit.

I make no other as to cost. Parties shall bear their respective costs.

Judgment is entered accordingly.

…………………………………

HON. JUSTICE M.N ESOWE