IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date:
27th January 2026 SUIT
NO. NICN/LA/332/2019
BETWEEN
BAMGBADE
WALE EMMANUEL … CLAIMANT
AND
FOLAD
CONSTRUCTION & ENGINEERING LTD … DEFENDANT
JUDGMENT
1. This
suit was originally assigned to Honourable Justice Mustapha Tijjani. Following His
Lordship’s transfer, it was re-assigned to me and mentioned on 18th November
2021. The Claimant initiated this suit on 12th July 2019. In the amended
statement of facts dated 20th February 2023 but filed on 22nd February 2023,
the Claimant sought the following reliefs:
a.
A
declaration that the employment of the Claimant with the Defendant, having not
been determined in line with the Defendant’s contract of appointment, is valid
and subsisting.
b.
An
order directing the Defendant to pay to the Claimant all his outstanding salaries,
allowances, and other entitlements attached to his employment from July 2019
till the valid determination of his employment with the Defendant.
c.
The
sum of N1,125,000.00 [one million, one
hundred and twenty-five thousand naira only], being the Claimant’s outstanding
salaries from the month of April 2018 till June 2019.
d.
The
sum of N67,000.00, being the Claimant’s
leave allowance for the year[s] 2018 and 2019.
e.
The
sum of N75,000.00 [seventy-five
thousand naira] per month from July 2019 till a valid determination of the
Claimant’s employment with the Defendant.
f.
The
sum of N33,500.00 [thirty-three
thousand, five hundred naira] per annum from the year 2020 till a valid
determination of the Claimant’s employment with the Defendant.
g.
General
Damages in the sum of N500,000.00 [five
hundred thousand naira] against the Defendant for the hardship, psychological
pain, inconvenience, discomfort, and emotional stress, or whatsoever occasioned
on the Claimant.
h.
Post-judgment
interest at the rate of 10% per annum from the date of judgment until total
liquidation by the Defendant.
2. Upon
receiving the originating process, the Defendant entered an appearance and
filed a statement of defence and a counterclaim against the Claimant on 30th
March 2023, claiming for:
a.
The sum of N85,000,000.00, being special damages for
the loss of the water pumping machine in the Claimant’s care.
b.
The sum of N1,000,000.00 being special damages for
the loss of the engine of the Company’s 5KVA Honda generator in the Claimant’s
care.
c.
The sum of N20,000,000.00 [twenty million naira],
being general damages.
d.
Costs of this action in the
sum of N5,000,000.00.
3. The
Claimant filed a reply to the statement of defence and a defence to the
counterclaim on 26th May 2023. The trial commenced on 2nd November 2023 and
concluded on 18th March 2024. During the trial, the Claimant testified to
support his claims and submitted four exhibits. The suit was then adjourned to
30th November 2023, for cross-examination and subsequently to 18th March 2024.
At the resumed hearing on 18th March 2024, the Claimant was cross-examined.
Afterward, the Defendant's witness testified in defence of the suit and
submitted five exhibits. He was also cross-examined, after which the suit was
adjourned for the adoption of final written addresses. The parties exchanged
their final written addresses, which their counsel adopted on 18th December
2025, and the suit was set down for judgment.
Brief facts of the case
4. The
Claimant asserts that he was employed by the Defendant as a storekeeper on 30th
June 2017, with a monthly salary of N75,000
and an annual leave allowance of N33,500.
However, in April 2018, the Defendant ceased payment of his salary and
allowances, and also failed to pay his leave allowance. The Claimant's
employment was terminated in breach of the employment contract, which he states
remains in effect, entitling him to receive his salary until the employment is
validly terminated. In response, the Defendant denied liability and filed a
counterclaim against the Claimant, seeking special damages and ancillary claims.
Summary of final written
addresses
5. Learned
counsel for the Defendant nominated four issues for determination in the final
written address dated and filed on 5th November 2024:
a. Whether
there is any defence to the counterclaim of the Defendant dated 24th day of
March, 2023, and if not, what ought the Honourable court to do?
b. Whether
the Defendant acted in accordance with the contract of employment in dismissing
the Claimant?
c. Whether
the Claimant’s conduct amounts to gross misconduct, which gives the Defendant
the right to summarily dismiss the Claimant?
d. Whether
the Claimant is entitled to wages, benefits, or damages in the circumstances of
this case?
6. In
addressing the first issue, the learned counsel referenced Order 30, Rules
2(1), (2), and (3) of the National Industrial Court of Nigeria (Civil
Procedure) Rules, 2017, and the cases of Kwajaffa v. B.O.N. Ltd [1999] 1
NWLR (Pt 587) 423 at 434, General Oil Limited & Anor v. FSB
International Bank Plc [2005] 5 NWLR (Pt 919) 579 at 591, Balogun v.
Yusuff [2010] 9 NWLR (Pt 1200) 515 at 537, and Adedeji v. Eso [2012] 13
NWLR (Pt 1316) 29 at 42, and submitted that a counterclaim is an
independent action, and when no response is filed to a counterclaim, the burden
of proof on the Defendant is discharged, thereby entitling the Defendant to
judgment. The Court was urged to hold so. Regarding the second issue, the
learned counsel cited Omenka v. Morrison Industry Plc [2000] 13 NWLR (Pt
683) 167 at 153-154 and Ovivie v. Delta Steel Co. Ltd [2023] 14 NWLR (Pt
1904) 203 at 227-228 and argued that the employment relationship is
contractual and governed by Exhibit 1, which is binding on both parties.
Counsel contended that an employer has the right to terminate an employee's
employment, provided that the termination is in accordance with the terms of
the employment contract, as stated in Nwobosi v. A.C.B [1995] 6 NWLR (Pt
404) 658 and Adams v. L.S.P.D.C [2000] 5 NWLR (Pt 656) 211 at 319. The
learned counsel reviewed the evidence and concluded that the Defendant's
actions were consistent with the provisions of paragraph 3 of clause 14 of
Exhibit 1, which authorises the Defendant to terminate the Claimant's
employment immediately for reasons including theft and negligence of duty. The
Court was urged to rule accordingly.
7. Arguing issue three, counsel cited Adewunmi v. Nigerian Eagle Flour Mills
[2014] 14 NWLR (Pt 1428) 443 and Abomeli v. NRC [1995] 1 NWLR (Pt 372) 451 to define employee misconduct as serious
misbehaviour in the workplace. This includes actions that are illegal or
violate company rules, which can lead to immediate dismissal. Counsel argued
that it is well-established that an employer may dismiss an employee for gross
misconduct without notice or pay, citing Borishade v. NBN Ltd [2007] 1 NWLR (Pt 1015) 257 and Nwobosi v. A.C.B [1995] 6 NWLR (Pt 404) 658. Upon reviewing clause 14, paragraphs 3(1) and (4) of Exhibit 1, along
with the Defendant’s evidence, counsel submitted that since the Claimant was
found guilty of gross misconduct, his summary dismissal was justified based on
the terms of his employment contract. Counsel urged the Court to hold so,
referencing Ajayi v. Texaco
Nigeria Ltd [1987] 3 NWLR (Pt 62) 577, among other cases.
8. On issue four, after reviewing the Claimant’s
case and the defence, counsel argued that the Claimant breached paragraphs 3(1),
(4), and (5) of clause 14 of the contract of employment. As a result, he was
summarily dismissed in accordance with the terms of the contract, relying on A.C.B
plc v. Nbisike [1995] 8 NWLR [Pt 416] 745 and Union Bank Nig Plc v.
Soares [2012] 11 NWLR (Pt 1312) 550. Upon reviewing Exhibit 3 and
the testimony of the defence witness during cross-examination, counsel pointed
out that the Claimant’s evidence regarding the termination is contradictory. In
one instance, the Claimant testified that he was requested to leave the Defendant's
employment; however, under cross-examination, he admitted that he did not work
from May to December 2018 and from January to June 2019. Therefore, counsel
contended that since it has been established that the Claimant exited the Defendant
in April 2018, he is not entitled to any monetary claims or general damages.
The cases of Sakare v. Bello [2003] 17 NWLR (Pt 848) 154 and Maiduguri
Floor Mills Ltd v. Abba [1999] 9 NWLR (Pt 473) 506 were cited in support.
Counsel urged the Court to uphold this argument and disregard the Claimant’s
statement contained in Exhibit 3. In conclusion, the learned counsel urged the
Court to dismiss the Claimant’s suit and grant the counterclaim.
9. The
learned counsel for the Claimant raised two issues for determination in the
final written address filed on 19th November 2024:
a.
Whether,
from the pleadings and the
evidence adduced at trial, the Claimant is not entitled to his claims as
per the amended statement of facts?
b.
Whether
the Defendant’s counterclaim ought not to be dismissed?
10. In addressing the first issue, counsel noted
that the Claimant's employment relationship with the Defendant is undisputed. The
learned counsel referred to the Claimant's testimony regarding the termination
of his employment during cross-examination and contended that the Defendant
breached clause 14 of the employment contract by terminating the Claimant's
employment. Counsel urged the Court to hold so. It was argued that Exhibit D4
was created after the breach of Exhibit 1 by the Defendant. Upon reviewing Exhibit
D4 and the defence witness's cross-examination testimony, counsel asserted that
the Claimant's employment still stands, as Exhibit D4 was never served on him,
suggesting he had no knowledge of his termination. The Court was urged to hold
so, relying on Ovivie
& Ors v. Delta Steel Co. Ltd [2023] LPELR-60460[SC].
11. Furthermore,
counsel asserted that even if the letter had been served, it should not hold
any probative value due to the contradictions within it, citing Olokpo & Anor v. Berda
[2024] LPELR–61739.
It was also argued that, even if Exhibit D4 is given some probative value,
documentary evidence is considered the most reliable form of evidence, which
cannot be altered by oral testimony. Thus, it is clear that the Claimant's
employment was terminated on 1st April 2021. The Court was urged to confirm
this and grant the Claimant's claims, citing Anibaba v. Dana Airlines Ltd & Anor [2022]
LPELR-57827[CA] in support. Counsel
further argued that, based on the principle that an employer must justify the
reasons for termination, the Defendant in this case has not substantiated its
reasons for dismissing the Claimant, emphasising that the Claimant was not
subjected to any disciplinary measures. As such, counsel argued there was no
valid reason for the Claimant's dismissal. Citing CDC [Nig] Ltd v. SCOA Nig. Ltd [2007] 6 NWLR (Pt 1030) 300, Audu
v. Guta [2004] 4 NWLR (Pt 864) 463, and Ukut
v. State [1996] 1 NILR 1,
counsel stated that where a party's evidence is inconsistent, particularly on
essential facts, it renders the evidence unreliable and detrimental to the Defendant's
case. The Court was urged to consider the Defendant’s witness's testimony as
unreliable. Finally, counsel contended that the Claimant is entitled to demand
his benefits, as the failure to provide these, along with not adhering to the
proper procedures for terminating the Claimant’s employment, constitutes an
unfair labour practice. The Court was urged to support this position.
12. In
response to paragraphs 4.2.4 to 4.2.17 of the Defendant's final written
address, counsel argued that clause 14 of Exhibit 1 does not apply to the
Claimant's case, as the Defendant failed to prove the allegation of theft.
Counsel further contended that even though Exhibit 1 stipulates termination
with immediate effect, the termination of the Claimant's employment is wrongful
because it was conducted orally, which contradicts the terms of the employment
contract. The Court was urged to disregard the Defendant's arguments on this
issue and to rule in favour of the Claimant on issue one.
13. In the canvassing issue two, counsel reproduced
the reliefs sought in the counterclaim, and referencing the case of Waziri
v. BOA Ltd [2023] LPELR-60477, submitted that the most reliable evidence is
that obtained during cross-examination. Counsel argued that since the defence
witness testified during cross-examination that there is no issue regarding the
pumping machine and generator, the Defendant is not entitled to its
counterclaim. Furthermore, it was submitted that even if the issues were not
fully established during cross-examination, the counterclaim would still fail
for lack of specificity regarding special damages. The cases of Skypower
Airways Ltd v. Olima [2005] 18 NWLR (Pt 957) 224 and Moghalu v. Wobo
[2004] 17 NWLR (Pt 903) 465 were cited to support this argument. Regarding
the claim for N20,000,000.00 in general
damages, counsel contended that it should fail for insufficient evidence, as
the allegation of stealing tiles remains unproven, rendering the counterclaim
liable to dismissal. In response to paragraphs
4.1.1 to 4.1.8 of the Defendant's final written address, counsel submits that
it is well-established that a Claimant must succeed based on the strength of his
case rather than the weaknesses of the defence. The Defendant bears the burden
of proving the counterclaim, even if there is no defence. The case of Lucas
& Ors v. Obawole & Anor [2017] LPELR-51026[CA] was cited in
support. Additionally, it was noted that the Claimant filed a defence to the
counterclaim, and put the Defendant to the strictest proof, but the Defendant
failed to prove entitlement to the claims. The Court was urged to disregard the
Defendant's arguments, resolve issue 2 in favour of the Claimant, and dismiss
the counterclaim.
14. In
arguing the reply on points of law, learned counsel for the Defendant submitted
that termination is only considered wrongful if it contradicts the terms of the
employment contract, citing the case of Dangote Cement Plc v. Ager [2024] 1
NWLR (Pt 1945) 1 in support. It was further submitted that if an employee
is found guilty of misconduct, his employment can be terminated verbally or in
writing, provided this is specified in the employment contract, relying on ACB
Plc v. Nbisike [1995] 8 NWLR [Pt 416] 72. Therefore, counsel contended that
the termination of the Claimant’s employment was not wrongful, as it was
carried out in accordance with the terms of the employment contract. The Court
was urged to uphold this position. In response to paragraphs 5.06–5.10 of the Claimant’s
final written address, counsel referenced the case of Ayodele v. Nigerian
Police Council [1998] 1 NWLR (Pt 572) 105, and argued that since
termination amounts to summary dismissal, the timing does not affect the date
on Exhibit D4. The Court was asked to disregard the Claimant’s arguments.
15. Addressing paragraphs 5.12, 5.13, and 5.14 of the Claimant’s
final written address, counsel asserted that the Claimant’s allegations are
presumptive and remain unproven. It was further submitted that even if the Defendant’s
evidence were perceived as inconsistent, this would be irrelevant, as the Claimant
has failed to meet the burden of proof. The case of Obiazikwor v. Obiazikwor
[2000] 8 NWLR (Pt 1090) 551 was cited in support. Additionally, counsel
argued that prosecuting an employee for gross misconduct before a Court or an
administrative body is not a necessary condition for summary dismissal, citing A.G.,
Kwara State v. Ojulari [2001] 1 NWLR (Pt 1016) 55. Therefore, counsel
submitted that the statement of defence contains no misrepresentations or
discrepancies, urging the Court to reject the Claimant’s argument. In response
to paragraphs 5.18 to 5.24 of the Claimant’s final written address, counsel
asserted that the Defendant has successfully proved its counterclaim, referencing
the case of Tourist Co. [Nig] Ltd v. Neo Vista Prop. Ltd [2022] 15 NWLR (Pt
1853) 317 at 380. The Court was urged to dismiss the Claimant’s case and
grant the counterclaim.
Preliminary issues
16. The
learned counsel for the Claimant argued in paragraph 5.8 of the Claimant’s
final written address that Exhibit D4 should not be afforded any probative
value due to its contradictions and inaccuracies. In response, the Defendant’s
counsel stated in paragraph 2.1 of the reply on points of law that the Claimant
was summarily dismissed, regardless of the timing, and that this dismissal is
unaffected by the date mentioned in Exhibit D4. However, during
cross-examination, when asked whether 1st April 2021 is the effective date of
termination, the defence witness clarified that this was an error. Aside from
the date issue, the Claimant did not provide further explanation regarding the
alleged lies and contradictions in Exhibit D4. It was also argued that since
the Claimant was not served with the termination letter, his employment was
never terminated. It is the law that a termination letter becomes effective
upon service to the employee (see Eka v. Kuju [2013] LPELR-22124[CA] 16).
However, the lack of evidence regarding the service of Exhibit D4 does not mean
that the Claimant’s employment was not terminated. The evidence before me
indicates that the Claimant was aware of the termination of his employment.
This is evident in paragraphs 7 to 13 of the Claimant’s sworn statement and
Exhibit 3. During cross-examination, the Claimant admitted that his employment
ended in April 2018. He clarified that the Defendant’s Managing Director asked
him to give the store keys to a carpenter and confirmed that he would receive his
two months' salary. Facts that are admitted require no further proof (see
Section 123 of the Evidence Act). Despite this, I examined Exhibit D4 and noted
that although it is dated 1st July 2018, the termination was stated to be
effective on 1st April 2021. Furthermore, while the defence witness explained
the inscription “Folad 001-2020-02-28/Bamigbade/Term” as merely a reference, it
suggests that the letter was actually written on 28th February 2020, which
occurred long after the Claimant’s employment had ended and after the
commencement of this suit. Additionally, the Defendant stated in the first
paragraph of the letter, “I am writing to inform you that your casual
employment with Folad Construction and Engineers Ltd as a Storekeeper (the
Company) is terminated effective from the 1st of April 2021. This is when,
according to our records, you were told to leave [sic, the] site.” These
discrepancies raise doubts about the authenticity of this letter and diminish
its probative value. Therefore, I agree with the learned counsel for the
Claimant that Exhibit D4 holds no probative value, and I hold so.
Is the Defendant’s witness credible?
17. Furthermore, the Claimant's counsel argued in
paragraph 5.14 of the final written address that the Defendant's case is
speculative, filled with admissions, misrepresentations, and contradictions.
The learned counsel asserted that when a witness provides contradictory
evidence on material facts, that testimony becomes unreliable, and such a
witness should be regarded as untrustworthy. The Court was urged to consider
the defence witness as unreliable in this context. In response, the Defendant's
counsel countered in paragraph 3.2 of the reply on points of law, stating that
the Claimant had failed to identify the specific inconsistencies,
misrepresentations, and discrepancies that would render the defence witness
unreliable, thus making the Claimant's argument unfounded. I agree with the
Defendant's counsel that the Claimant has not successfully specified the
alleged inconsistencies, misrepresentations, or discrepancies in the
Defendant’s evidence, which are necessary to challenge the reliability of the
defence witness. It is a well-established principle that the party making an
assertion bears the burden of proving it. Merely making an allegation is
insufficient; the Claimant must substantiate his claims. In this instance, the
Claimant has not done so. Therefore, I find the Claimant's
submission to be without merit and disregard it. However, it is essential to note
that not all contradictions in testimony warrant dismissal of a witness's
credibility. For evidence to be discountenanced due to contradictions, those
contradictions must be material to the issue at hand (please refer to Lawson
v. Afani Continental Co. Nig. Ltd & Anor [2002] 2 NWLR (Pt 752) 585 at 626).
This is not the case here.
Issue for determination
18. I
have considered the pleadings, evidence, and submissions of the parties, and to
my mind, the two issues that arise for determination are:
a. Is the Claimant entitled to
judgment on his claims; and
b. Is the Defendant entitled to
judgment on the counterclaim?
19. The law is trite that whoever desires
the Court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist. By the
combined force of Sections 131, 132, 133, 134, and 136[1] of the Evidence Act,
the Claimant bears the initial burden of proving the pleaded facts on the
balance of probabilities. The Claimant
must succeed on the strength of his case, not on the weakness of the defence,
absence of defence, or admission by the Defendant. If the Claimant fails to
discharge this burden satisfactorily, his claims will be dismissed without
considering the Defendant's case, as the Defendant is not required to prove its
defence under these circumstances. In such a situation, there would be no
evidence to rebut, leading to a judgment against the Claimant for lack of
evidence. Please refer to Adama
& Ors v. Kogi State House of Assembly & Ors [2019] 16 NWLR (Pt 1699)
501 at 531, Igwenagu v. Hon. Minister,
Federal Capital Territory & Ors [2025] 7 NWLR (Pt 1988) 145 at 173-174, Nsude
& Ors v. Nichodemus & Ors [2025] 4 NWLR (Pt 1982) 253 at 280, and Nduul
v. Wayo & Ors [2018] LPELR-45151[SC] 51-53.
20. The
Claimant who seeks declaratory relief must demonstrate his entitlement to the
declaration by credible evidence and will succeed on the strength of his case,
not on the weakness of the defence or admission by the Defendant. As granting
declaratory relief involves the Court’s discretion, the Claimant must place
sufficient materials before the Court to justify the declaration, as
illustrated in the cases of Nduul
v. Wayo & Ors [2018] 7 SC [Pt III] 164 at 213, U.T.C.
Nigeria Plc v. Peters [2022] 18 NWLR (Pt 1862) 297 at 312, 313, and Osho
v. Adeleye & Ors [2024] 8 NWLR (Pt 1941) 431 at 452.
21. In resolving employment disputes, the Court
will refer to the employment contract and any other stipulations that are
incorporated, or deemed to have been incorporated, into the contract, as stated
in the cases of Adekunle
v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108 and Gbedu & Ors v. Itie & Ors [2020] 3 NWLR (Pt
1710] 104 at 126.
The employment contract serves as the foundation for any action taken in the
event of a breach. The success of the case hinges entirely on the terms agreed
upon, or deemed to have been agreed upon, by the parties involved, as outlined
in Umera v.
Nigerian Railway Corporation [2022] 10 NWLR (Pt 1838) 349 at 386 and Gyubok v. The Federal Polytechnic, Bauchi & Anor
[2024] 16 NWLR (Pt 1965) 515 at 549.
Summary
of evidence
22. The Claimant sought eight reliefs. He
testified in support of his claims and presented four documents, marked as
Exhibits 1-4. These documents consist of the Claimant’s contract of employment
dated 30th June 2017, the Claimant’s First Bank of Nigeria Ltd statement of
account, a copy of the Claimant’s letter to the Office of the Public Defender
dated 11th October 2018, and an acknowledged copy of the letter from the Office
of the Public Defender to the Defendant dated 16th October 2018. The Claimant
was employed as a storekeeper on 30th June 2017, under a contract of employment
dated the same day, with a monthly salary of N75,000.00
and an annual leave allowance of N33,500.00.
During his employment, he performed his duties diligently and to the best of
his ability. However, he reported that the Defendant ceased payment of his
salaries and allowances in April 2018, without explanation, constituting a
breach of the contract of employment. The Defendant also violated clause 14 of
the contract, which required either 10 working days' notice or payment of 10
working days' salary in lieu of notice for termination. After the Defendant
refused to respond to the Claimant’s pleas and complaints, the Claimant sought
assistance from the Office of the Public Defender (OPD) in Surulere, Lagos. The
OPD invited the Defendant to a mediation session in hopes of resolving the issue
amicably, but the Defendant was resistant to settlement and took no further
action. The Claimant maintains that his employment with the Defendant is still
valid. He indicated that the Defendant owes him salaries amounting to N75,000 from April 2018 until the valid
termination of his employment, as well as an annual leave allowance of N33,500. According to the contract, he is
entitled to outstanding salaries from April 2018 to June 2019, totalling N1,125,000.00, along with an annual leave
allowance of N67,000.00, amounting to N1,192,000.00 (one million, one hundred
and ninety-two thousand naira). Mr. Bamgbade further testified that, per the
contract, he is entitled to N75,000.00
per month from July 2019 until the valid termination of his employment, along
with an annual allowance of N33,500
from 2020 until termination. As the primary breadwinner of his family, he stated
that the Defendant's actions have caused him significant anguish, serious
depression, trauma, loss of economic opportunities, and ill health, entitling
him to damages.
23. During
cross-examination, Mr. Bamgbade stated that he was employed under a contract
dated 30th June 2017, which he accepted on 3rd July 2017. He held the position
of storekeeper and was responsible for the custody of materials used at the
Defendant's sites. Prior to his employment with the Defendant, he worked for
Keysode Ltd. The Defendant provided him with a job when Keysode Ltd folded. He
acknowledged that the Defendant had done him a favour. As a storekeeper, Mr.
Bamgbade received project items for the Defendant, including imported tiles
meant for the swimming pool at the French School in Lagos. He asserted that the
tiles did not go missing while they were in his care. It was also untrue that
the Defendant searched for local tiles for a month to replace them.
Furthermore, he denied that a water-pumping machine disappeared from the store
under his supervision, nor that a 5 KVA engine was missing. When shown
paragraph 14 of his contract of employment, Mr. Bamgbade confirmed that he had
received a confirmation letter. However, when pressed, he said he did not know
whether his employment had been formally confirmed. He admitted that the
Defendant could terminate his employment without notice if there was a breach
of paragraph 14. When informed that the Defendant could dismiss him due to the
alleged missing tiles, the pumping machine, and the 5 KVA Honda generator, he
insisted that nothing was missing during his tenure. Mr. Bamgbade acknowledged
that his employment was terminated in April 2018, but clarified that the
Managing Director had asked him to give the store key to a carpenter. He
requested two months' salary, and the Managing Director assured him that it
would be sent. Mr. Bamgbade believed that the Defendant would recall him when
circumstances improved after he had handed over the key. He admitted that he
did not work from May to December 2018 and from January to June 2019. He
confirmed that he is entitled to leave after one year with the company, as
stated in paragraph 8 of his employment letter, and has a claim for leave
allowance. His contract commenced on 3rd July 2017. Mr. Bamgbade acknowledged
that the period from 3rd July 2017 to April 2018 was not a full year, but
clarified that he had been asked to stop working. He recognised Mr. Shittu
Abayomi, the site administrator, Mr. James Ogundele, the quantity surveyor, and
Mr. Ebiet Biddy, the project manager. He noted that all of them, except Mr.
Ebiet Biddy, had worked for Keysode Ltd before joining the Defendant. When told
that he was present in Court when Mr. Shittu Abayomi testified that Mr. Ebiet
Biddy worked for Keysode Ltd, he replied that he worked in Lagos, but claimed
that Mr. Ebiet Biddy did not work in Lagos. Mr. Bamgbade denied any collusion
with others and also denied that a threat to call the police led to the
recovery of any missing tiles.
24. The
Defendant’s witness, Engineer Adetokunbo Victor Doherty, who is the Managing
Director of the Defendant, disclaimed liability for the claims made by the
Claimant. He testified that the Claimant refused to provide his home address
upon request, implying that he had no fixed address. During the Claimant’s
employment with the Defendant, several incidents occurred that affected the
Defendant’s reputation with its client, AFN French International School in
Lagos, particularly regarding a swimming pool project. Notably, equipment and
materials belonging to the Defendant went missing while under the Claimant's
supervision as Store Keeper. Engineer Doherty stated that the Claimant was
summarily dismissed for stealing and selling anti-slip pool tiles, among other
items that went missing. These items were imported by AFN French International
School and received and signed for by the Claimant. The loss of these items
resulted in financial damage to the Defendant and caused a delay of an
additional month in completing the project.
25. The Claimant was informed of the reasons
for his dismissal in April 2018. He was told to hand over the keys to the
company store and to leave the site immediately. Consequently, the Claimant
never returned to the site, and he was aware that his employment relationship
with the Defendant had ended. Engineer Doherty maintained that the termination
of the Claimant’s employment was executed in accordance with clause 14 of the
contract of employment, which stipulates immediate termination for theft. As a
result, the Claimant is not entitled to any salary or allowances. He also
mentioned that any letters sent to the Claimant could not be delivered because
the Claimant did not provide a home address. All efforts to retrieve the
Defendant’s assets and to obtain the Claimant’s address were unsuccessful, as
the Claimant refused to disclose this information. Mr. Doherty stated that the Defendant
was unable to respond to the letter from the Office of the Public Defender
(OPD) because the Office had lost its staff due to financial losses incurred by
the AFN project. This situation left no one available to respond to the letter
since it was received by a security guard, who was not an administrative staff
member. Additionally, the Managing Director, who was the only remaining staff
member at the time, was hospitalised for treatment of chronic kidney disease. Mr.
Doherty asserted that the Claimant is not entitled to the monetary claims, as
his employment was terminated in April 2018, and he is aware of this
termination. Mr. Doherty explained that the leave allowance becomes due only
after one year of employment, and since the Claimant had not completed one year
of employment before his dismissal, he is not entitled to the leave allowance. He
reiterated that the Claimant was employed in early July 2017 as the on-site
storekeeper for the AFN Sports Complex project and that his employment was
terminated in early April 2018 after several items went missing from the
company’s store room, which was under the Claimant’s care on the AFN site. Mr.
Doherty emphasised the disappearance of swimming pool tiles procured and
imported by the client, AFN, and handed over to the Claimant on 16th January
2018. These tiles went missing, costing the company a substantial amount to
replace. According to the employment contract, any theft of the Defendant’s
property results in immediate termination, which was the reason for the Claimant’s
instant dismissal.
26. In an effort to recover the costs of
replacing the missing tiles, the Claimant was terminated without pay, as his
outstanding salary was used to procure the replacement tiles. Mr. Doherty noted
that there had been several issues between the Claimant and the Defendant on-site,
and the missing tiles incident was the final straw. He recalled an incident in
which 15 cartons of pool edge tiles, also the responsibility of the Claimant,
went missing and were recovered only after the Claimant was threatened with arrest.
Mr. Doherty indicated that the Claimant had approached the AFN client directly
to demand immediate payment of his late salary, despite being informed that the
client was seeking additional funds to fulfil their obligations. He regarded
the Claimant’s actions as an embarrassment to the Defendant, damaging their
reputation with the client. The Defendant not only incurred costs to purchase
the missing tiles but also spent considerable time searching for them, a task
that proved challenging because the tiles were unavailable. Ultimately, after a
month of searching, the client agreed to allow sub-standard tiles that did not
meet the required anti-slip specifications to be used as replacements. He
listed additional missing items under the Claimant’s responsibility as a water
pumping machine and the engine of the company’s 5KVA Honda generator. These
issues ultimately led to the Claimant's summary dismissal for gross misconduct
without pay. Mr. Doherty stated that the Claimant is not entitled to the claims
and requested that the Court dismiss them with significant costs. Regarding the
counterclaim, Mr. Doherty reiterated that the Defendant suffered losses due to
the Claimant’s actions, which damaged its reputation with the client, AFN. The Defendant
lost the money invested in designing AFN’s project, missed out on the
additional works contract, and eventually lost the client altogether. The
actions of the Claimant, as well as those of other terminated staff members, including
Shittu Abayomi, the Storekeeper; James Ogundele, the Site Administrator; Samuel
Williams, the Accountant; and Mr. Ebiet Biddy, the Project Manager, contributed
to the Defendant ceasing operations and suffering further losses and damages.
The Defendant tendered five exhibits, marked as Exhibits D1-D5. These are: the
Claimant’s employment contract, same as Exhibit 1, shipment delivery document, waybill
and invoice dated 26th May 2018, termination letter dated 1st July 2018, and
email correspondence of 16th and 18th April 2018 between the Defendant’s
Managing Director and AFN
27. During
cross-examination, Mr. Doherty confirmed that the Claimant was summarily
dismissed in April 2018, and that there was a letter intended to be served to the
Claimant. He acknowledged that no letter of summary dismissal was issued at
that time, but one was issued afterward. When Exhibit D4, dated 1st July 2018,
was shown to him, he admitted that the letter was dated after the dismissal.
Upon reviewing paragraph 2 of Exhibit D4, Mr. Doherty noted an error, admitting
that the term "terminated" was used. When asked whether 1st April
2021 was the effective date, he said, “It is an error.” However, when informed
that he had submitted the document to the Court, Mr. Doherty said he could not
change what was written. In the top right corner of Exhibit D4, he was asked
about the name written there and identified it as "Bamigbade." When
asked about the date next to the name, he said it was a reference number, not a
date. When it was suggested that the date referred to was 28th February 2020,
he denied this. Mr. Doherty confirmed that there were letters dated 1st July
2018 and 1st April 2021, but insisted that it was an error. He acknowledged
that the correct dismissal date was in April 2018, while stating that 28th
February 2020 was just a reference, not an actual date. Mr. Doherty stated that
he did not report the stolen items to the police, but clarified that there had
been plans to arrest the Claimant. However, those plans were thwarted by the
police's presence at the client's site. Mr. Doherty clarified that the value of
the pumping machine was approximately N350,000.00,
not N85 million, as mistakenly written.
When asked about any evidence regarding the generator and the pumping machine, Mr.
Doherty claimed there were no issues with those items; rather, the concern was
about the missing tiles. When Exhibit D3 was shown to him, Mr. Doherty insisted
that the Defendant's name was on it, but he claimed the company’s name was not
on the first document in Exhibit D3. When shown the second document, Mr.
Doherty again insisted that the Defendant's name was there. When asked to
indicate where the Defendant's name appeared, Mr. Doherty claimed that the
letter "D" was there. Upon reviewing Exhibit D2, Mr. Doherty was
asked to confirm whether the Defendant was listed. He replied that the
Defendant’s name was not on Exhibit D2 because the client procured the tiles
directly, but the Defendant’s representative, who received the tiles, signed
for them. When told that Exhibit D2 provided no indication that Mr. Bamgbade
collected them, he responded that, although it stated "supervised
by," Mr. Bamgbade collected them.
Evaluation of evidence
28. I have considered the pleadings and evidence
provided by both parties, including oral and documentary testimony. The
Claimant seeks a declaration that his employment with the Defendant continues,
as well as payment of his salary until his employment is validly terminated,
along with damages, costs, and post-judgment interest. Both parties agree that
the Claimant was employed by the Defendant as a storekeeper, effective 3rd July
2017. The Claimant received his salary from July 2017 to March 2018; however,
his employment ended abruptly in April 2018. Although the Claimant claimed his
employment had not been terminated, he admitted during cross-examination that
it was terminated in April 2018. He also described how his employment was
terminated and stated that the Defendant assured him that his two months'
salary would be paid. It is established law that facts admitted require no
further proof, as highlighted in Section 123 of the Evidence Act and the case
of Ibrahim v. Usman & Ors [2023]
16 NWLR (Pt 1911) 515 at 536.
Therefore, it is no longer disputed that the Claimant’s employment was
terminated, given his unequivocal admission during cross-examination. The
questions that the Court must address are whether the Claimant's employment was
properly terminated, and whether he is entitled to his monetary and other
associated claims.
Was the Claimant’s employment wrongfully
terminated?
29. The supporting evidence is found in paragraphs
7 to 10 and 14 of the Claimant’s sworn statement, to the effect that the
Defendant surreptitiously and without reasonable cause ceased payment of his
salary and allowances from April 2018 to date. He stated that the Defendant’s
action and the purported termination of his employment are in breach of the
employment contract, because he was not served a notice of termination of his
employment or paid ten days’ salary in lieu of notice. Based on this, the Claimant
concluded that his employment subsists. In response, the Defendant asserted in
paragraphs 9 and 10 of its witness’s sworn statement that the Claimant was
summarily dismissed in accordance with clause 14 of his employment contract in
April 2018, but the letter written to the Claimant subsequently could not be
delivered because he did not provide a residential address. Although the
Claimant filed a reply to the statement of defence, the pleading was not
accompanied by a witness statement on oath, rendering
the reply abandoned, as noted in Mohammed v. Klargester [Nig.] Ltd [2002] 14
NWLR (Pt 787) 335 at 367 and Nigerian Gas Co. Ltd v. Dudusola [2005] 18
NWLR (Pt 957) 292 at 316.
30. As
noted earlier in this judgment, it is not disputed that the Claimant’s
employment was terminated in April 2018. The only question is whether the
termination complied with the terms of the Claimant’s employment. The Claimant
alleged that the Defendant breached his employment contract, while the
Defendant maintains that it complied with clause 14. The
law is settled that, in a master-servant relationship, the master has the right
to terminate the servant's employment under the terms of their contract. This
principle is highlighted in the case of Ansambe v. Bank of the North Ltd
[2005] 8 NWLR (Pt 928) 650 at 672. Therefore, when an employee claims
wrongful termination, it is his responsibility to plead and prove the terms of
his employment and to demonstrate how the employer breached those terms, as
seen in United Bank for Africa Plc v. Oranuba [2014] 2 NWLR [Pt 1390] 1 at
21. For a termination to be deemed wrongful, it must be contrary to the
conditions outlined in the employment contract, as explained in Union Bank
of Nigeria Plc v. Chinyere [2010] 10 NWLR [Pt 1203] 453 at 472.
31. In
this case, both parties relied on clause 14 of the employment contract,
admitted as Exhibits 1 and D1. It provides, in clause 14.1, that employment may
be terminated during the probationary period with two days’ notice, or with two
days’ salary in lieu of notice. Clause 14.2 provides that upon confirmation,
employment may be terminated with ten days’ notice or ten days’ salary in lieu
of notice. Both parties agree that the Claimant’s employment was terminated
abruptly and without notice. Exhibit D4, which purports to be the notice of
termination, lacks probative value. Thus, the Defendant terminated the
Claimant’s employment without notice or salary in lieu. During
cross-examination, the Defendant sought to prove that the Claimant’s employment
was not confirmed. However, the law appears settled that where an employer keeps his employee in his employment
and continues to pay him after the probationary period had
expired, he would be deemed, by operation of law, to
have confirmed his appointment, and the doctrine of estoppel by
conduct would operate to prevent the employer from alleging and
treating him as if he was still on probation. Please refer to Reliance
Telecommunications Limited v. Adegboyega [2017] 8 NWLR (Pt 1567) 319 at 328-329.
Thus, by clause 14[2] of the employment
contract, the Claimant’s employment could only be terminated by 10 days' notice
or 10 days’ salary in lieu, which stipulation was not complied with, rendering
the termination of the Claimant’s employment wrongful. Notably, the Defendant's
claim that the Claimant was summarily dismissed for theft is not supported by
any evidence, oral or documentary. In fact, the Defendant’s witness admitted
during cross-examination that the Defendant had no issues with the pumping
machine or the generator, only with the missing tiles. However, there is no
evidence linking the Claimant to the theft of the tiles.
32. The
fact that the Claimant’s employment was wrongfully terminated does not mean
that it is still active. The law is clear that, in a master-servant
relationship, if termination of employment is found to be wrongful, a
declaration that employment continues can be made only in very compelling
circumstances. For reference, see Ilodibia
v. Nigeria Cement Company Limited [1997] LPELR-1494[SC] 18 and Wilbros
Nigeria Limited & Another v. Macaulay [2009] LPELR-8507[CA] 37-38. The Defendant has shown a clear intention to
terminate the Claimant’s services, and based on the unchallenged evidence
presented, this action has been completed. Consequently, the Court cannot
overturn the Defendant’s decision. Therefore, I find as a fact that the
employment relationship no longer exists.
Is the Claimant
entitled to his salary from April 2018 to date?
33. Having
determined that the Claimant's employment was wrongfully terminated, the claim
for salary and allowances from April 2018 to the present automatically fails.
This is because the Court cannot order the payment of salary for work that the
Claimant did not perform, as established in the case of Olatunbosun v.
Nigerian Institute of Social and Economic Research Council [1988] LPELR-2574
[SC] 54-55. There is no evidence that the Claimant worked for the Defendant
between April 2018 and the present. In a master-servant relationship that lacks
statutory flavour, if an employee's employment is wrongfully terminated, the
employee is only entitled to what he would have earned had his employment been
properly terminated. Please refer to Toyinbo v. Union Bank Plc [2023] 1 NWLR
(Pt 1865) 403 at 427. Based on the evidence presented, I find that the
Claimant is not entitled to salary from April 2018 to the present, except for
ten days' salary in lieu of notice.
In conclusion, the first issue for
determination is resolved partially in favour of the Claimant.
Consideration
of the reliefs
34. The
first claim seeks a declaration that the employment of the Claimant with the
Defendant, having not been determined in line with the Defendant’s contract of
appointment, is valid and subsisting. I found in this judgment that the
Claimant's employment was wrongfully terminated, and no longer exists. As a
result, I hold that this claim has not been established, and it is denied.
35. The
second claim is for an order directing the Defendant to pay to the Claimant all
his outstanding salaries, allowances, and other entitlements attached to his
employment from July 2019 till valid determination of his employment with the
Defendant. I have determined in this judgment that since the Claimant's
employment has been terminated, he is not entitled to any salary for services
not provided. Furthermore, the specifics of the other entitlements are unclear,
making the claim vague and ungrantable. Therefore, I hold that this claim has
not been substantiated and is hereby denied.
36. The
third claim seeks the sum of N1,125,000.00
[one million, one hundred and twenty-five thousand naira only], being the
Claimant’s outstanding salaries from the month of April 2018 till June 2019. This
claim is connected to the second claim that was refused and, as a result, must
also be denied. Additionally, I have concluded in this judgment that since the
Claimant's employment has been terminated, he is not entitled to any salary for
services that were not provided. In the case of Skye Bank Plc v. Adegun
[2024] 15 NWLR (Pt 1960) 1 at 46, the Supreme Court reaffirmed this
principle, stating that an employee should only be compensated for the time he
actually worked for the employer. Consequently, an employee cannot claim
salaries for periods not worked. Since there is no evidence that the Claimant worked
for the Defendant from April 2018 to June 2019, I hold that this claim has not
been substantiated, and it is therefore denied.
37. The
fourth claim is for the sum of N67,000.00,
being the Claimant’s leave allowance for the years 2018 and 2019. The
supporting evidence can be found in paragraphs 15 and 16 of the Claimant’s
sworn statement. In response, the Defendant stated in paragraph 14 of its
witness’s sworn statement that the Claimant is not entitled to a leave
allowance because he had not been employed for a full year. During
cross-examination, the Claimant confirmed clause 8 of the employment contract,
acknowledging that he did not complete a year of employment with the Defendant.
According to clause 8 of the contract, the Claimant would be entitled to two
weeks of leave after one year of service. Additionally, clause 6 stipulates
that the leave allowance would be 10% of the annual salary. Since the Claimant
was not entitled to annual leave when his employment was terminated, the issue
of a leave allowance does not arise. Therefore, I conclude that this claim has
not been substantiated, and it is hereby denied.
38. The
fifth claim is for the sum of N75,000.00
[seventy-five thousand naira] per month from July 2019 till a valid
determination of the Claimant’s employment with the Defendant. This claim is
ancillary to the second relief and relies on the success of the first claim.
Since both claims have been denied, this claim automatically fails as well. Please
refer to Ukelere v. First Bank of Nigeria Plc [2011] LPELR-3869[CA] 29. Therefore,
it is denied.
39. The
sixth claim seeks the sum of N33,500.00
[thirty-three thousand, five hundred naira] per annum from the year 2020 till a
valid determination of the Claimant’s employment with the Defendant. This is a
claim regarding leave allowance. I have determined in this judgment that the
Claimant is not entitled to receive any leave allowance. I adopt the reasoning
and conclusion in paragraph 37 above and hold that this claim has not been
substantiated; therefore, it is denied.
40. The
seventh claim is for general damages in the sum of N500,000.00 [five hundred thousand naira] against the Defendant for
the hardship, psychological pain, inconvenience, discomfort, and emotional
stress, or whatsoever occasioned on the Claimant. Damages are granted at the
Court's discretion and are intended to compensate for losses caused by an
adversary's actions, as seen in Nigerian Railway Corporation v. Ojo [2021]
LPELR-55971[CA] 40-41 and Ecobank Nigeria Limited v. Saleh [2020]
LPELR-52024[CA] 83-85. This Court has general powers under Section 19[d] of
the National Industrial Court Act, 2006, to award compensation or damages in
any circumstance contemplated by the Act or any Act of the National Assembly
dealing with any matter that the Court has jurisdiction to hear. However,
granting damages is not automatic. As an exercise of discretion, it must be
supported by the facts and circumstances of the case. In Shena Security Co.
Ltd v. Afropak (Nig.) Ltd & Ors [2008] 18 NWLR (Pt 1118) 77 at 108-109,
the Supreme Court, per Muhammad, JSC, restated the principle for award of
damages for wrongful termination, thus: “The
damages recoverable in cases of wrongful dismissal/termination have been well
established by our courts in several decided cases. Such are said to be the
losses reasonably foreseeable by the parties at the time of the contract as
inevitably arising if one breaks faith with the other. Certainly, they do not
include or take account of speculative or sentimental values. The court, in
awarding damages, will certainly not include compensation for injured feelings
or the loss that may have been sustained from the fact that the employee,
having been dismissed, finds it more difficult to obtain fresh employment.”
Furthermore, it is unclear how the Defendant’s failure to pay the ten days’
salary in lieu of notice has caused the Claimant any hardship, psychological
pain, inconvenience, discomfort, or emotional stress. Therefore, I find that
this claim has not been substantiated and hereby deny it. However, since I have
determined that the Claimant’s employment was wrongfully terminated, and by
the agreement of the parties, the Claimant is entitled to either ten days’
notice or ten days’ salary in lieu of notice. As
a result, I hold that the Claimant is entitled to N25,000, representing ten days’ salary in lieu of notice as
damages. This claim succeeds partially.
41. The
eighth claim seeks post-judgment interest at the rate of 10% per annum from the
date of judgment until total liquidation by the Defendant. This Court is
authorised by Order 47, Rule 7 of the National Industrial Court of Nigeria
[Civil Procedure] Rules, 2017, to award post-judgment interest at a minimum
rate of 10% per annum. I hold that the Claimant is entitled to post-judgment
interest due to the facts and circumstances of this case, particularly the
efforts made by the Office of the Public Defender to resolve this matter.
Therefore, this claim is granted.
Issue two: Is the Defendant entitled to judgment on the
counterclaim?
42. The
counterclaim is detailed in paragraph 2 above. A counterclaim is an independent
action, and the burden of proof rests on the Defendant to demonstrate to the
Court that it deserves a judgment on its claims. This principle is established
in Sections 131 and 136 of the Evidence Act, as well as in the cases of Faloyo
v. Faloyo & Anor [2021] 3 NWLR (Pt 1762) 114 at 135 and Tyonex
Nigeria Limited & Anor v. Pfizer Limited [2020] 1 NWLR (Pt 1704) 125 at 161.
The Defendant adopted the evidence in support of the defence to the principal
claim as its evidence for the counterclaim. Although the Claimant submitted a
reply to the statement of defence and a defence to the counterclaim on 26th May
2023, there is no accompanying witness statement on oath. As a result, the
reply and the defence to the counterclaim are considered abandoned. When there
is no defence to the counterclaim, the allegations made in the counterclaim
remain unanswered and unchallenged, thereby being treated as admitted. This
principle is supported by the cases of Mohammed v. Klargester [Nig.] Ltd
[2002] 14 NWLR (Pt 787) 335 at 367, Nigerian Gas Co. Ltd v. Dudusola
[2005] 18 NWLR (Pt 957) 292 at 316, and Atoyebi & Ors v. Bello &
Ors [1997] 11 NWLR (Pt 528) 268 at 281. Therefore, I hold that there is no
valid defence to the counterclaim, and the averments in the counterclaim are
deemed to be admitted.
43. To establish the counterclaim, the
Defendant relied on evidence supporting its defence against the principal
claim, and tendered Exhibits D1 to D5. However, none of these exhibits substantiates
the counterclaim. The Defendant asserts that the water pumping machine and the
engine of its 5KVA Honda generator went missing while in the Claimant’s care,
resulting in a loss of reputation, the forfeiture of a project, and ultimately,
the loss of the client. This is detailed in paragraphs 17, 19, 20, 22, 23, and
27 of the Defendant’s witness's sworn statement. During cross-examination, the
Defendant’s witness admitted that no police report was filed regarding the
missing items. Additionally, the witness stated that the cost of the pumping
machine was N350,000, not the
previously claimed N85 million. When
informed that there was no evidence proving the existence of the 5KVA generator
and the pumping machine, the Defendant’s witness responded, “We don’t have any
problem about the pumping machine and generator, but the missing tiles.” While
it is true that the Claimant’s failure to provide evidence in support of the
defence to the counterclaim leaves the Defendant’s evidence unchallenged, making
it likely to be accepted by the Court, this does not guarantee the Defendant
automatic judgment as noted in Elewa & Ors v. Guffanti Nigeria Plc
[2017] 2 NWLR (Pt 1549) 233 at 248. The Defendant's evidence must justify
the claims made. If the evidence cannot support the claims, the Defendant has
not discharged the burden of proof, and the claim will fail despite the absence
of a defence, as established in Erinfolami v. Oso [2011] LPELR-15357[CA] 18.
44. The Defendant is seeking N85,000,000 and N1,000,000 in special damages, which must be specifically pleaded
and proved in order to be awarded. As previously mentioned, the Defendant’s
witness admitted during cross-examination that the claim for N85,000,000 was a mistake. Additionally,
the Defendant has no issues with the pumping machine and generator, rendering
the first two reliefs unnecessary. Since the principal claims have failed, there
is no basis for the claim for N20,000,000
in general damages. Although the Defendant asserts that it has lost its
reputation with the AFN, as well as money invested in designing additional
work, the subcontract, and the client, no supporting evidence has been presented
to me. General damages are those that the law presumes to be the direct,
natural, or probable consequence of the act in question. They are a type of
monetary compensation awarded at the Court’s discretion to alleviate losses
caused by the actions of the opposing party, as established in Nigerian
Railway Corporation v. Ojo [2021]
LPELR-55971[CA] 40-41. General damages are intended to compensate for
actual injury. To qualify for an award of general damages, the Defendant must
demonstrate that it has suffered a legally recognisable loss due to the actions
or omissions of the Claimant, as illustrated in Ecobank Nigeria Limited v.
Saleh [2020] LPELR-52024[CA] 83-85. No injury arising from the Claimant’s
actions or omissions has been established. Therefore, damages will not be awarded.
In conclusion, I find that the Defendant has not proved the counterclaim.
Consequently, the second issue for determination is resolved against the
Defendant.
Consideration
of the reliefs
45. Relief
one is for the sum of N85,000,000.00,
being special damages for the loss of the water pumping machine in the
Claimant’s care. There is no evidence to support this claim; therefore, it is
denied.
46. Relief
two is for the sum of N1,000,000.00,
being special damages for the loss of the engine of the Company’s 5KVA Honda
generator in the Claimant’s care. Also, there is no evidence to support this
claim; therefore, it is denied.
47. Relief
three is for the sum of N20,000,000.00
[twenty million naira], being general damages. I found in this judgment that
since the principal claims have failed, there is no basis for the claim for N20,000,000 in general damages. I also
found that no injury arising from the Claimant’s actions or omissions has been
established. Therefore, damages will not be awarded. I adopt my reasoning and
conclusion in paragraph 44 above, hold that this claim has not been
established, and deny it.
48. Relief four is for costs
of this action in the sum of N5,000,000.00.
In litigation, costs generally follow
the event, and the successful party is entitled to his costs, regardless of
whether these costs are specifically claimed, unless there are exceptional
reasons to deny them, as stated in Egypt
Air Limited v. Ibrahim & Anor [2021] LPELR-55882[CA] 35-36. The Court has broad discretion to award
costs, which must be exercised judiciously and with careful consideration of
the circumstances. This is also outlined in Order 55, Rules 1 and 5 of the
National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. After a
thorough evaluation of the evidence presented and my findings in this case, I
conclude that the Defendant is not entitled to the costs of this action.
Therefore, this claim is denied.
49. Overall, the Claimant’s relief 8 is granted
as requested, while relief 7 is granted partially. The Claimant’s first through
sixth claims are dismissed, and the counterclaim is also dismissed.
Judgment is entered accordingly.
…………………………………..
IKECHI GERALD NWENEKA
JUDGE
27/1/2026
Attendance:
Parties absent
Appearances
Adetokunbo Davies Esq., with Jedidiah O. Selere Esq. for the Claimant
Thompson A. G. Ivory Esq. with Mrs.
Chioma A. Ozoma for the Defendant