IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 10^th MARCH, 2026                             Suit No: NICN/LA/396/2022

 

BETWEEN

 

ONYEBUCHI OKAFOR AYENI                                           CLAIMANT

 

AND

 

1. VOLAB CONSULTING LTD                   1^st DEFENDANT/COUNTERCLAIMANT
2. SPECTRANET LTD                                   2^ND DEFENDANT         

 

REPRESENTATION:

Adeyinka Binuyo for the Claimant 

Adekunle Lawal for the 1^st Defendant

F.A Abodunrin for the 2^nd Defendant

 

JUDGMENT

 

By a general form of complaint filed on the 17^TH October, 2022 the claimant claimed the following reliefs against the defendants:

 

 

 

 

 

 

 

a.         The total sum of N457,985.00 (Four Hundred and Fifty-Seven Thousand, Nine Hundred and Eighty-Five Naira only) being the number of outstanding salaries (including the 13^th Month Salary in December 2021) accruable to the Claimant from the period between the 1st of October 2021 till the date of resignation on the 12^th of January 2022. 

 

b.         The total sum of N60,000.00 (Sixty Thousand Naira only) being the amount accruable for Transport Allowance entitled to the Claimant. 

 

c.         That the total of the amount accruable to the Claimant from the above and as contained in the details/information provided by the Claimant, sums up to be N517,985.00 (Five Hundred and Seventeen Thousand, Nine Hundred and Eighty-Five Naira Only). 

 

d.        An Order of this Honourable Court directing the Defendants to pay the Claimant the sum of N10,000,000.00 (Ten Million Naira only), being general damages for the Defendant's deliberate refusal to pay the outstanding monies owed to the Claimant, which has caused a huge financial discomfort to the Claimant. 

 

e.         An order of this Honourable Court directing the Defendant to pay the Claimant the sum of N100,000.00 (One Hundred Thousand Naira) being the cost of Legal Services the Claimant incurred in direct consequence of the Defendants' wrongful withholding of the monies owed to the Claimant. 

 

f.          An Order of this Honourable Court that monies due the Claimant under the Judgment in this suit shall attract a Post-Judgment Interest of 15% per annum from the date of the Judgment to the date the Judgment Sums are paid in full. 

 

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed 17^th October, 2022.

 

In reaction, the 2^nd defendant entered formal appearance and then filed an Amended Statement of defence, counter claim, witness written statement on oath and documents to be relied upon at trial dated and filed 19^TH May, 2023. The defendant/counter claimant counterclaimed as follows:

 

 

 

 

 

 

The claimant’s Reply to the defendant’s statement of defence and defence to counter claim is dated 7^th March, 2023 but filed 8^th March, 2023.

 

The summary of the facts pleaded by the claimant is that he was appointed by the 1^st Defendant as a Call Center Executive in June 2014 and seconded to act as Call Center Executive of the 2^nd Defendant; that his role as a Call Center Executive was to handle complaints and enquiries of the customers of the 2^nd Defendant and that during the course of his employment as a Call Center Handler, his performance was appraised periodically by the 1^st Defendant and in its Appraisal, Letter dated 20^th April 2016, the 1^st Defendant adjudged his performance to be good for the year 2015 and consequently reviewed his Salary; that via a Letter of Transfer from the 1^st Defendant, dated 1^st May 2019, he was transferred from the position of a Call Center Executive to a Channel Desk Executive and his role was to market the products of the 2^nd Defendant to prospective customers; that during the cause of his Employment, his performance was appraised periodically by the 1^st Defendant, and his performance had been adjudged to be impressive and that as a result of his performance, his gross remuneration was increased from N92,742.00 (Ninety-Two Thousand, Seven Hundred and Forty-Two Naira) to 102,016.20 (One Hundred and Two Thousand, Sixteen Naira, Twenty Kobo). That her take home remuneration stood at N92,000.00 after tax and pension deductions and that she was also paid the sum of N15,000.00 monthly as Transport Allowance; that on the 27^th of October, 2021, the 2^nd Defendant via Electronic Mail dated 27^th October, 2021 issued her a Query in respect of some missing devices and that she responded to the Query via Electronic Mail dated 1^st November 2021, requesting for more time to investigate. 

 

That she  responded to the Query via Electronic Mail dated 30^th November 2021 explaining the whereabouts of the purported missing devices but the 2^nd Defendant never responded to her Email and no disciplinary action that was to be taken against her was communicated to her; that she remained in employment and carried out her duties until the 12^th of January, 2022 when she formally resigned from the 2^nd Defendant; that the Defendants failed and neglected to pay her salaries from the Month of October 2021 till the 12^th of January, 2022 when she formally resigned from the 2^nd Defendant and that as a result of the willful failure of the Defendants to pay her salary arrears, she has suffered financial hardship, embarrassment. That as part of the Resignation Procedures, she was given series of forms to enable her obtain clearance from the Departments of the 2^nd Defendant and all the Departments of the 2nd Department except the Human Resource Department cleared her. However, upon submitting the form to the Human Resource Department of the 2^nd Defendant, the Human Resource Department refused to sign the form and as such withheld her Exit Form which is required to obtain her pension. That she instructed her Solicitors to write a Letter of Demand to the 2^nd Defendant wherein she demanded for all the monies owed to her by the 2^nd Defendant and also a final Letter of Demand dated 1^st of September 2022 to the 2nd Defendant via Electronic Mail on the 1^st of September, 2022. 

 

That the 2^nd Defendant responded to her Solicitor's Demand Letter through its Solicitor, Fatai Abodunrin & Associates on the 9^th of September, 2022, claiming that the 1st Defendant was her employer and as such has been asked to liquidate the amount due in respect of the said missing devices as her Salary Arrears as at when she resigned and which was not sufficient enough to liquidate the cost of the missing devices. That her Solicitors wrote a Demand Letter to the 1^st Defendant via Email on the 8^th of September 2022 demanding for the payment of her salary-arrears and the 1^st Defendant acknowledged the receipt of her Solicitor's Email on the 11th of September, 2022, promising to escalate the issue to the 2^nd Defendant and revert to her Solicitor. However, the 1^st Defendant never reverted to her Solicitor on the outcome of the resolution of the issues with the 2^nd Defendant. That her Solicitors, Overstone Legal charged her the Sum of N100,000.00 (One Hundred Thousand Naira Only) as Professional Fees for taking the Brief to institute a Legal Action at a Court of Law against the Defendants. 

 

In her Reply to the defendant’s Statement of defence and defence to the defendant’s counterclaim; the claimant stated that she was not just a former Employee of the 1^st Defendant, she was also an Employee of the 2^nd Defendant; that the 1^st Defendant was merely a recruitment agency, recruiting employees on behalf of the 2^nd Defendant; that the 1^st Defendant was primarily responsible for issuing out Letters on behalf of the 2^nd Defendant but had no further control over her; that the 2^nd Defendant was primarily responsible for issuing the Query dated 27^th October, 2021 in respect of the alleged Sixty-Three Missing Devices; that she was never indicted by the 2^nd Defendant as no further communication was made by the 2^nd Defendant to her and the defendant just withheld her salaries for no just cause; that she signed for 18 devices as part of the handover from one Muyiwa who had resigned from the 2^nd defendant and had no access to the physical devices and that the cost of the devices was never communicated to her; that she never manipulated the monthly stock reconciliation report on the Customer Relationship Management Report Application as she was not trained on how to use the application by the said Muyiwa nor the 2^nd defendant; that she was not informed of the recommendation of the Report leading to the withholding of her salaries pending the resolution of the missing devices.

 

Under cross examination by the 1^st defendant/counterclaimant’s counsel, CW stated that the letter of employment issued to her by the 1^st defendant is not before the honourable court; that the 1^st defendant did not owe her any salary before the incident of the missing devices; that she explained the whereabout of the devices before resigning; that she is not aware that the conduct is threatening the long standing relationship of the 1^st and 2^nd defendants; that she is not aware of the cost of the missing devices; that her maternity leave ended in September, 2021; CW confirmed that she is into baking services and that her duty is to the 2^nd defendant.

 

There was no Re-Examination by the claimant’s counsel. The claimant was discharged.

 

Under cross examination by the 2^nd defendant/counterclaimant’s counsel, CW stated that part of her duty is to oversee the store of the 2^nd defendant; that she took the inventory of the stock in the store before the query; that her salaries were not recommended to be suspended in the report; that she was issued a query on 21^st October, 2021; she confirmed that her resignation came barely two weeks to her response after the query.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed her case.

 

The 1^st defendant opened its defence by calling its sole witness, Olasimoju Oyelola, the Human Resources Manager of the 1^st defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant’s 1^st witness statement on oath is that the Claimant was issued a Query for the missing sixty-three (63) devices in her custody but failed to explain the whereabouts of the sixty-three (63) devices placed under her watch; that the Claimant had before her resignation, stopped presenting herself at her duty post without approval; that the Claimant's period of employment ended on 12^th January 2021 and her final exit clearance cannot be processed because she failed to hand over the sixty-three (63) devices in her custody to either her immediate supervisor, head of the department, or the person taking over from her. That the 2nd Defendant has now demanded the replacement cost of the 63 devices from the 1^st Defendant put at a total value of N926,000.00 (Nine Hundred and Twenty-­Six Thousand Naira); that the Claimant demanded her outstanding salary arrears. However, the 1^st Defendant states that the Claimant's outstanding salary arrears cannot be paid, until the resolution of the missing sixty-three (63) devices placed in her custody; that the Claimant's negligence and incompetence brought about the loss of the sixty-three (63) devices which incident was a chain reaction to the suit herein and that the sums of N457,958.00 and N60,000.00 being the Claimant's accrued salary and transport allowance is not enough to liquidate the sum of N926,000.00 which is the replacement cost of the sixty-three (63) devices the Claimant refused, failed and neglected to handover upon her resignation. That the Claimant is indebted to the Defendants in the sum of N408,042.00 upon set off the N517,958.00 of the accrued salary from the N926,000.00 the cost of the sixty-three (63) devices; that the Claimant's claims are frivolous, vexatious, and highly speculative and ought to be dismissed with substantial cost. 

 

Under cross examination of DW1, the claimant’s counsel and the 2^nd defendant’s counsel both stated that they have no questions for him. The 1^st defendant thereafter closed its case.

 

The 2^nd defendant opened its defence by calling its sole witness, Gbenga Babadiji, the Human Resources Manager of the 2^nd defendant, wherein he adopted his witness statement on oath as evidence in this case. The defendant’s 2^nd witness statement on oath is that the Claimant was formerly an employee of the 1^st Defendant until January, 2022, when she resigned her appointment upon being indicted in the case of the 63 (sixty-three) missing devices from the Marketing Central Store which she superintends and that the cost value of the missing 63 devices in the Claimant's custody/control is assessed at N926,000.00 (Nine Hundred and Twenty-Six Thousand Naira); that the Audit Report of 27^th October, 2021 indicted the Claimant of being culpable for the missing 63 (sixty-three) devices and the claimant also in her response to the query, admitted being responsible for the devices; that the Report of the Audit Team reveals that the warehouse personnel was able to provide all approved requests and approval notes at various points leading to the release of the 63 (sixty-three) missing devices to the Marketing Central Store but the Claimant manipulated the monthly stock reconciliation report by representing CRM (Customer Relationship Management) extracts as physical stock for the monthly end stock reconciliation exercise. 

 

That following the overwhelming evidence against the Claimant for the 63 (sixty-three) missing devices in her custody at the Marketing Central Store by the Audit Report, her response to the query amounted to an admission of guilt and that following the recommendation of the Audit Report, the Claimant's salary from October 2021 was stopped pending the resolution of the missing devices; that the Claimant resigned her appointment with the 1^st Defendant without providing any information leading to the whereabouts of the 63 (sixty-three) missing devices in her custody.

 

Under cross examination by the claimant’s counsel, DW2 stated that he resumed as the Human Resources Manager of the 2^nd defendant on 1^st May, 2015; that he was not part of the team that employed the claimant; that the defendant and her direct boss trained the claimant on how to use the devices; that CRM is a software being used by the department and because it is a software, it is meant to be handled by human being; that the person to receive the handover note must log in and tally with what is in store; that when any staff is indicted, a query is issued and a response from such employee is expected, the management if need be  could further question the employee to clarify grey areas; that the department of such employee is carried along in the disciplinary process and that a decision will be taken by the company; that a Reply was given to the claimant’s email on the response to the query and afterwards she resigned; that the procedure is that if the indicted employee is unable to prove his or her case, the salary of such employee will be withheld pending when the process is completed. That he signed his Statement on oath at the National Industrial Court Registry.

 

The 1^st defendant’s counsel did not cross examine DW2.

 

       There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The 2^nd defendant’s final written address is dated and filed 8^th November, 2024; the 1^st defendant/counterclaimant’s final written address is dated and filed 13^th November, 2024 while the claimant’s final written address is dated 25^th November, 2024 but filed 4^th December, 2025.  The 2^nd defendant’s Reply on point of law is dated and filed 10^th December, 2024.  

 

Learned counsel on behalf of the 2^nd defendant formulated three (3) issues for the court’s determination viz:

 

                                                                                                                                                     

 

 

 

 

It is the 2^nd defendant’s counsel on issue one (1) that the gravamen of the Claimant's claim in the instant suit borders on alleged outstanding arrears of salary, transportation allowances, and accrued benefits which are consequences of the employment contract between the parties. Therefore, the question that is begging for answer is can the Claimant be allowed to recover her alleged accrued salary of the sum of N457,985.00 (Four Hundred and Fifty-Seven Thousand, Nine Hundred and Eighty-Five Naira) when her wrongful/reckless conduct has caused the 2^nd Defendant a total loss of sixty-three (63) devices valued at N926,000.00 (Nine Hundred and Twenty- Six Thousand Naira); that by the testimony of the Claimant at trial under cross-examination, her testimony read thus: - 

 

“As a channel desk executive, she was in charge of marketing the 2^nd Defendant's products, and part of her duty was to oversee the 2^nd Defendant's central store, the store, is where the devices are kept upon being released from the warehouse. Before the devices are released to the store from the warehouse, there must be a request followed by an approval note and stock transfer note (STN) generated upon release…...” 

 

She further testified under cross-examination thus: - 

 

“She has read the audit report dated 27/10/2021, 63 devices were identified as missing under her watch. According to the report, she had failed to physically count the stock in her custody for monthly stock counts. She had always sent the CRM extract as her physical stock reconciliation at the end of every month…….” 

 

She also admitted under cross-examination thus: - 

 

“By the report, her conduct regarding the missing devices was considered negligence…….” 

 

That the above evidence was borne out of the testimony of the Claimant herself in the open Court, and this is clearly an admission against interest, and it is against the interest of the Claimant as regards her claim for the outstanding salary; that a statement oral or written made by a party to civil proceedings and which statement is adverse to his case or interest is admissible in the proceedings as evidence against him of the truth of the fact asserted in the statement. He cited the case of Seismograph Services Nig. Ltd. v. Chief Keke Ogbenekwe Eyuafe (1976) 9-10 SC 135 at 146 and urged the honourable court to so hold and resolve the issue in favour of the 2^nd defendant.

 

On issue two (2); the 2^nd defendant’s counsel submitted that as a bailee, the claimant has a legal responsibility which she assumed when she had temporary possession or control of the sixty-three (63) devices, the property of the 2^nd Defendant; that the Claimant is to practice ordinary diligence while the property is in her possession and should be held responsible for any gross negligence that occurs; that that there is a presumption of prima facie negligence against the Claimant who has the burden of discharge that she was not negligent in looking after the 2^nd Defendant's property and that by the preponderance of the evidence, the Claimant was careless and reckless in discharging her duty of care. He cited the case of W.A.E.C. v. Koroye (1977) 2 SC 45 at 50.

 

On issue three (3); counsel submitted that it is the requirement of our laws for a party to lead evidence in support of all the averments in his pleadings. Therefore, a witness statement on oath represents the testimony of a party and is different from the party's pleadings; that the Reply to the Defence and Defence to Counterclaim filed by the Claimant dated 31^st May, 2023 was not accompanied by a witness statement on oath. Therefore, no evidence was led to support the averments therein. That the averments in the 2^nd Defendant's Statement of Defence and the deposition in the Witness Statement on Oath were unchallenged and uncontroverted by the Claimant and therefore is deemed admitted. He cited the case of Ajomale v. Yaduat (No.2) 5 NWLR (pt. 191) 226 at 282-283.

 

Learned counsel on behalf of the 1^st defendant formulated a sole issue for the court’s determination viz:

 

Whether the Claimant has proved her case and is thus entitled to the grant of the reliefs sought in this case.

 

It is the 1^st defendant/counterclaimant’s counsel submission on the sole issue that  since the standard of proof required in the instant case is on the balance of probabilities, the judgment ought to be given in favour of the party whose evidence tilts the imaginary scales of justice; that a review of the evidence led in this case will reveal that the Claimant has failed to discharge the burden of proof on him; that the Claimant's failure is especially glaring as her evidence was grossly discredited under cross-examination and shown not to be worthy of belief. Also, that the balance of probabilities in this case tilts in favor of Defendants and therefore the claims of the Claimant should be dismissed in their entirety.

 

The 1^st defendant/counterclaimant’s counsel further sub headed the above sole issue into the followings:

 

It is the counsel’s contention that the evidence on record before the honourable court overwhelmingly tilts the balance of probabilities in the 1^st Defendant's favour; that as evident from the record, in support of the Claimant's case who has failed to lead credible evidence in support of her claim. On the other hand, in support of the 1^st Defendant's case is the uncontradicted evidence of DW1 which the Claimant's counsel refused to cross-examine despite presenting documentary evidence namely Exhibits OA8, OA9, OA10, and OA12. Thus, on one side of the scales of justice in this case is oral evidence and on the other side is documentary evidence; that the law is trite that wherever documents are available, they speak louder than oral evidence on the issues in contention and are eminently preferred. He cited the case of Kusha v. Modu & Ors (2022) LPELR-57320(CA) and urged the honourable court to so hold. 

 

The Claimant failed to prove her entitlement to the reliefs sought in this case

 

The 1^st defendant/counterclaimant’s counsel reiterated that the claimant has failed to prove that she is entitled to the reliefs sought and further submitted in respect of relief 6 that a claim for arrears of salary, transport allowance, and cost of litigation falls in the realm of special damages. Thus, for the Honourable court to grant such a claim or relief, the party seeking the same must provide credible and cogent evidence just as he would do any other claim for special damages. He cited the case of Ihekwoaba v African Continental Bank Ltd (1998) 10 NWLR (Pt 571) 590 at 610-611.

 

Learned counsel on behalf of the claimant formulated two (2) issues for the court’s determination viz:

 

 

 

It is the claimant’s counsel submission on issue one (1) that no disciplinary actions were taken against the Claimant and neither was the claimant placed on suspension pending the determination of the resolution of the purported missing devices nor dismissed by the Defendants; that assuming without conceding that disciplinary actions were taken against the Claimant, whatever disciplinary actions that was taken against her was never communicated to her, rather, she continued to report to work with the Defendants despite the fact that she was not being paid.  That the Defendants do not have the right regardless of alleged misconduct committed by the Claimant to withhold her salaries as long as she was still in employment.

 

Continuing, counsel submitted that the mere fact that the Claimant was absent from work without authorization from the Defendants does not give the Defendants the right withhold her salaries or deduct part of her salaries; that by Section 5 of the Labour Act, an employer cannot deduct from an employee's wages for no reason unless it is deemed reasonable by an authorized labour officer in respect of an injury caused to the employer by the employee's negligence or willful misconduct. Therefore, the 1^st Defendant has failed to contradict the evidence of the Claimant, and as such the evidence of the Claimant remains uncontradicted despite being cross-examined by the Defendants. 

 

On the status of the 1^st and 2^nd defendants as employers of the claimant; counsel submitted that the Claimant is an employee of both the 1^st and 2^nd Defendants as they both exercised the rights to control the conduct of the Claimant in various ways as pleaded in the statement of facts that the 1^st Defendant was the one who issued the letter of appointment to the claimant to work as a call center executive in June 2014, was responsible for the issuance of letters of transfer and appraisal of performance to the claimant while the 2^nd Defendant exercised further control over the Claimant by giving her day-to-day tasks, issued query via electronic mail dated 27^th October 2021 in respect of allegations of some 63 missing devices and tendered audit report dated 27^th October, 2021 in which the report recommended the withholding of salaries of the claimant which indicates that the 2^nd Defendant had been responsible for the payment of the Claimant's salaries. That having exercised control over the Claimant, none the Defendants can be heard to say that the Claimant was not an employee. It cannot also be heard to claim that the 1^st Defendant was vicariously liable for the alleged loss of 63 missing devices neither can the 1^st Defendant claim before the honourable court that its relationship with the 2^nd Defendant is being threatened by the acts of the Claimant as both of them are co-­employers of the Claimant. Onumalobi vs NNPC (1999) 12 NWLR (part. 632) Page 628 at 639 Paras F – G and urged the honourable court to so hold.

 

On issue two (2); counsel submitted that the 1^st Defendant' s counter-claims are speculative and unsupported by credible evidence as it has failed to produce inventory records showing the Claimant's custody of the 63 missing devices nor provide documentation proving that the missing devices were directly attributable to the Claimant's negligence or misconduct; that the 1^st Defendant failed to give the particulars of the negligence alleged in its Counter-claim, made a blanket statement that the Claimant was negligent because she was allegedly responsible for the loss of the 63 missing devices as it claimed.

 

On the 1^st defendant’s argument on the failure of the claimant to file her written statement on oath in support of her Reply to the statement of defence/counterclaim; the claimant’s counsel submitted that by Order 15 Rule 7 of the Rules of the honourable court mandates the Claimant to file a reply to the Defendant's Statement of Defence if there are fresh points made by the Defendant in its Statement of Defence within 7 days from the receipt of the Statement of Defence and that It did not mandate the Claimant to file a Written Statement on Oath in support of the Reply to the Defendant's Statement of Defence. He cited the case of GTB Plc vs Ezeja (2024) LPELR-62729 (CA) Pages 12- 15 and urged the honourable court to so hold.

 

On Reply on point of law to the claimant’s final written address; the 1^st defendant’s counsel submitted that a party is bound by his or her pleadings at the trial and cannot make a case different from his pleadings because the object of pleadings is to appraise the opposing party of the case the pleader is making, to avoid any surprise at the hearing, and to ascertain the issue or issues in controversy between the parties with a view to enabling each party to settle beforehand, the evidence he shall adduce at the hearing. That the 1^st defendant finds the argument of learned counsel to the Claimant preposterous and utterly absurd when he surreptitiously tried to bring through the back door the issue that the 2^nd Defendant was the Claimant's employer which issue was never canvassed anywhere before now. 

 

I have carefully considered the originating processes filed, the documentary evidence before the court, the written submissions and authorities cited. In considering the merit of the case I need to remark on the 2^nd defendant’s submission on non-filing of a reply to the statement of defense by the claimant. The 2^nd defendant’s contention is that the claimant did not file a reply to the statement of defence and is deemed to have accepted all the averments and depositions of the defendant. The submission of the claimant is that the purpose of a reply to a statement of defence is to rebut any new fact raised in the defendant’s statement of defense and same does not appeal to basic legal common sense. The position of law on failure to file statement on oath in respect of defence to counterclaim means the counterclaim has minimal proof. See Ebundon v Incorporated Trustees of Redeemed Christian Church of God & Ors (2020) LPELR -50756 (CA) Where the court of appeal held that 

Statement of joint defense was not accompanied by a sworn statement on oath, the fact of the true position is that cross respondent had abandoned its defense to the counter claim. 

 

This court in Maikudi v Maiwada (2018) LPELR -46004 (CA) held on the effect of failure to file statement on oath in respect of defence to counterclaim ‘’ a counterclaim is an independent action and it needs not relate to or be in any way connected with the plaintiff’s claim or rise out of the same transaction. It need not be an action of the same nature as the original claim.’’ the Apex court in Ogbonna v A.G. Imo State (1992) LPELR-2287 (SC), the Apex court held that where a defendant counter claims against the plaintiff, the latter is duty bound to file a reply in defence to the counterclaim, otherwise the court   is entitled, in fact obliged to assume that the plaintiff has no defence and may enter judgment for the defendant accordingly ‘’ In this case there is no statement on oath in respect of the reply to statement of  defence and defence to counterclaim. This means no evidence led in support of it. The defence to counterclaim is deemed abandoned and the averments in the counterclaim admitted as true. The law is trite that where evidence adduced in a case to support a claim one sided, the onus of proof is discharged on minimal proof. See Visafone v Onamusi (2016) LPELR -41444(CA). It is clear there is no defence by the claimant on the 2^nd defendant’s statement of defence and counterclaim. It is deemed abandoned. 

 

The claimant has raised another preliminary objection that the 1^st defendant’s statement of defense was not served on either her or her counsel to which the response of the 1^st defendant is that the said process was served on the claimant on the 5^th of June 2023 by the bailiff of this court and an affidavit of service was deposed to by the said bailiff. A look at the file shows that the affidavit of service was sworn to by one Ayo Olamoju and that same was served on Overstone legal and received on behalf of the law firm by one Ayoola Agbati. This means the 1^st defendants statement of defence was duly served on the claimant. The preliminary objection is discountenanced and dismissed.

 

There are three (3) issues for determination in this suit to wit:

 

1. Who is the actual employer of the claimant, 
2. Whether the claimant is entitled to reliefs claimed 
3. Whether the defendants are entitled to their counterclaims 

 

The main grouse of the claimant is that she was owed salaries, transportation allowances, benefits accrued and for the court to direct the defendants to release the claimant’s exit form. The law is trite that he who asserts must prove. See section 131 (1) & )2) of the Evidence Act 2011. See Heritage Bank Ltd v Don & Chyke (Nig) Ltd & Anor (1998) (LPELR -52423 (CA). In proof of her case the claimant tendered the following documents- Letter of Appraisal (exhibit OA1 & OA3), Letter of Transfer (exhibit OA2), Demand Letter (exhibit OA 4). The 1^st defendant tendered email (exhibit OA8), Demand for the value of missing devices (exhibit OA9), List of  63 missing devices (exhibit OA10), Email on the value of the missing devices (exhibit OA11), The 2^nd defendant tendered list of devices (exhibit OA12), Email (OA13) , Email: Missing Devices Marketing Central Store on CRM (exhibit OA14), Email/ Query (exhibit OA15), Email / Response to query (exhibit OA16), Email on missing devices ( exhibit OA17).

 

The case of the claimant is that she was employed by the 1^st defendant and seconded to act as call center executive of the 2^nd defendant. Her role was defined to include handling complaints and enquiries of customers of the 2^nd defendant and her performance appraised periodically by the 1^st defendant. The claimant tendered Exhibit “OA1 -OA6” which did not include the letter of employment by the 1^st defendant. The claimant is to plead the documents and any other terms of her contract with the defendants as these are the terms of her employment. There is no letter of contract of employment before the court issued by the 1^st defendant while exhibit OA 1 & OA3 are (Letters of appraisal) and exhibit OA 2 is the letter of transfer to another department of the 1^st defendant.  A letter of employment is a vital document in a case because it goes a long way, as it is often the case to greatly assist the court in ascertaining the terms and conditions of service binding the parties thereto.  In the instant case, the defendants did not deny that the claimant is their staff. A look at the claimant’s pleading and the written statement on oath in paragraph 5 and subsequently paragraph 4 of the statement of facts she averred ‘’that I was appointed by the 1^st defendant as a call center executive in June 2014 and seconded to act as a call center executive of the 1^st defendant. The 2^nd defendant admitted same in paragraph 2 of its statement of defense and counterclaim while the 1^st defendant admitted same equally in paragraph 3 of the statement of defense. Under cross examination to the 1^st defendant’s question on who is her employer and she responded ‘’ 1^st defendant volab’’ The question that now arises is who is the employer of the claimant.

 

Is the claimant right in arguing that she is an employee of the 1^st and 2^nd defendant, as the company that issued the appointment letter is 1^st defendant which is different from the 2^nd defendant as she was seconded to work with the 2^nd defendant. See Oyetayo v Zenith Bank Plc (2012) 29 NLLR (Pt. 84) 370 the judgment of this honourable court which was delivered on 16/10/12 this court held as follows – 

 

'Going by case law, for instance, Nitel v Jattau (1996) 1 NWLR {PT 425} 392 CA, the character of an appointment and the status of the employee is determined by the legal character of the contract of employment, and contracts of employment are determinable by the agreement of the parties simplicita. Our labour laws, during the pendency of an employment relationship, however, admit that the character of the relationship may be altered as between the parties with or without the interposition of the third parties. It is in this sense that the triangular employment relationship evolved. See, for instance PENGASSAN v. Mobil Producing Nigeria Unlimited unreported Suit No. NIC/LA/47/201, the judgment of which was delivered on March 21, 2012. In fact, in appropriate cases, the courts have upheld the fact of co-employer status between two employers in relation to an employee. In Onumalobi v. NNPC and Warri Refining and Petrochemical Company (2004) 1 NLLR (Pt. 2)304, the Court of Appeal held that where an employee is under the control of a subsidiary company of his employer and his employment is terminated by the subsidiary acting upon the written instruction of the parent company, the letter of termination by the subsidiary company precipitates the cause of action. The import here is that the court of appeal regarded both companies as employers of Appellant.  At page 323, the court of Appeal held that privity of contract will be held to exist between an employee and a subsidiary company of his employer to which he has been transferred where the subsidiary is totally integrated into and under the control of the parent company and the subsidiary company qualifies to be described as an employer under section 9(1) of the labor Act

 

The argument of the defendants here is that there is no reason for the claimant to raise the issue of whether she was employed jointly or not as the claimant admitted that she is a staff of the 1^st and 2^nd defendants as seen in her pleadings in paragraphs 7 of statement of facts where she pleaded ‘’ The claimant avers that during the course of the  employment the 1^st defendant wrote a letter dated 1^st May 2019 , transferring her from the position of  a call enter handler to a channel Desk Executive via a letter of transfer dated 1^st May 2019. This the claimant tendered exhibit OA2 letter of transfer before the court and equally stated in paragraph 11 of the statement of fact that the defendants were also responsible for payment of her transport allowances monthly. It is now clear that she was transferred to the 2nd defendant by the 1^st defendant and both defendants paid her transport allowances monthly. Under cross examination to the question by the 1^st defendant’s counsel, on who is her employer to which she responded volab (1^st defendant). The 1^st and 2^nd defendant did not at any time deny that the claimant worked with them. While the claimant or her counsel state categorically that the 1^st defendant is the employer, the claimant would in her reliefs want the court to declare that both are her employers. A look at all the reliefs show that she referred to the 1^st and 2^nd defendants as her employers. 

 

I find that the 1^st and 2^nd defendants are her employers as mentioned earlier in this judgment and this is what is called triangular employment. In Luck Guard Limited v Mr. Felix Adariaku & Ors (2022) LPELR - 59331 (CA) the court of appeal described triangular relationship and held thus 

 

Ordinarily, an employment relationship involves two parties: the employer and the employee, However, the International Labour Organization (ILO) acknowledged that there are situations in which three individuals or entities can be involved in employment relations, in what might be termed a ‘’triangular employment relationship ‘’ or  a disguised or objectively ambiguous triangular employment relationship ‘’ See ILO   the scope of the employment Relationship(ILO Report V ) International Labour Conference 91^st  session Geneva 2003 @ pg 38. the issue as addressed by the parties is interrogating the aspect of the judgment of the trial court on whether there is a situation where the employer arranges for an employee’s placement with a third party. 

 

It is accordingly my finding and holding that both defendants are co -employers of the claimant and the claimant is entitled to all benefits that emanates from employment by both defendants.  

 

There is no dispute between the parties that the claimant was transferred from customer care service (call center executive to customer care service (Channel Desk Executive) The claimant has in her pleadings admitted same. Her job description from her pleadings as a channel Desk Executive is to market the products of the 2^ND defendant to its prospective customers. From the evidence before the court, the claimant admitted under cross examination that her last designation was Channel Desk Executive and equally admitted that the she is in charge of marketing the 2^nd defendant’s products, she admitted the following under cross examination:

 

Question: As channel desk executive you are in charge of marketing of the 2^nd defendant’s products 

Answer: Yes. 

Question: Part of your duty is to oversee the store of the 2nd defendant   

Answer: Yes. 

Question: The store is where the devices are kept after release from the warehouse 

Answer:  Yes. 

 

With the above, I have not been able to decipher why the claimant wants the court to resort to declaration   that the claimant was employee of both defendants when the claimant has admitted that she worked for the 2^nd defendant having been seconded by the 1^st defendant. When facts like these are before the court, there will be no need to call on the court to make a declaration.

 

The next issue I have to deal with relates to whether the defendant owes monies to the claimant being outstanding salaries, transportation allowances, benefits accrued.  What has the claimant put before the court for this relief to be granted?  Exhibit OA3 is a letter of appraisal from the 1^st defendant and attached to it is increase of salary from N92. 742 to N102, 016.20. The last salary exhibited was in August 2021 (exhibit OA3) before the demand letter (exhibit OA5) of 8th September 2022.  The law is that he who assets must prove.  The parties are ad idem that the claimant worked for the defendants and so there is a relationship between the parties. See Akinfe V U.B. A PLC (2007) 10 NWLR (pt. 1041)185. Once the party asserts, he must prove the assertion. See Section 131 (1) of the Evidence Act. See also Elegushi v Oseni (2005) 14 NWLR (pt. 945) 348, Egharevba v Osagie (2009) LPELR -1044 (SC). There is no controversy that the claimant stopped working for the defendant since January 12^th 2022 when she resigned her appointment after the allegation of missing devices from the department of the 2^nd defendant, was issued a query and after her response resigned her employment. The question that comes to mind now is whether the claimant is entitled to the salary she claims. In her averment in paragraph 19 of the statement of facts that the defendants failed to pay her salary arrears after she resigned. 

 

The 2^nd defendant has averred that 63 devices in the custody of the claimant were missing and put the value at N926,000.  The claimant under cross examination has admitted that the devices was under her care and later got missing. The claimant again raised issues in her final address when she submitted that the 2nd defendant tacitly denied that it is not an employer of the claimant. The issue was put to rest earlier when the court held that both the claimant and the defendants are in a triangular employment relationship as same has evolved with the new labor jurisprudence.  The defendants did not deny liability that the claimant salary is being owed. See   paragraph 10 of the 2^nd defendant amended statement of defence and defence to counterclaim wherein the 2^nd defendant averred ‘’ The 2^nd defendant states that contrary to the averments in paragraphs 17 of the statement of facts, and following the recommendation of the Audit Report, the claimant’s salary from October 2021 was stopped pending the resolution of the missing devices. Having admitted that the claimant is being owed salary following the recommendation of the Audit report, what is the defendant expected to do?  The argument of the defendant is that the claimant’s negligence led to the loss of 63 devices in the claimant’s custody / control and same is assessed at N926,000.  Following the recommendation of the Audit report the claimant was indicted and issued a query.  The query is exhibited in exhibit OA7 the subject being FW; Query – missing Devices from marketing central store on CRM 

 

Any update on this? 

 

The claimant responded and part of her reply is 

 

Dear HR,

 

From the record provided, am yet to be able to physically account for the entire devices. I understand I am in a better position to account for them as the person in charge of the devices as documented. I am presently doing that with little success. I take ownership for this shortfall. 

 

This is an admission. 

 

On the issue that the claimant was not indicted, when the 2^nd defendant discovered the 63 missing devices, a query was issued and response via an email vide exhibit OA7. The issue of the missing devices was first raised on the 6^th of December 2021 and titled ‘’ missing devices from marketing central store on CRM –

 

Any update on this? (later same day there was a mail) 

 

Dear victor, 

You need to do sanity checks on the claims made by Buchi in the email below and confirm back 

Regards

Rajeev

 

And the claimant Buchi responded 

 

Dear HR,

 

From the record provided, am yet to be able to physically account for the entire devices. I understand I am in a better position to account for them as the person in charge of the devices as documented. I am presently doing that with little success. I take ownership for this shortfall. 

 

 And also had the challenges during pregnancy period which made it difficult for me to count physically count and resulted to using the dispatch riders marketing to do most of my counting, this is deeply regretted 

 

Best regards, 

 

Onyebuchi 

 

From exhibit above, the claimant admitted that the 63 devices got missing under her. The claimant having admitted that circumstances of the loss, is the defendant’s action of withholding her salary legal. The law is settled that facts admitted need no proof, she is bound to answer and be responsible for the loss. however, the claimant is entitled to her salary having worked for the period.  The summary of how the 63 devices got missing, query, and the claimant’s resignation have been tendered before the court as exhibit OA7, OA11, OA12 respectively. What gave rise to the inspection for the devices is as shown in exhibit OA14. The Audit team concluded from all the evidence before them that there is no evidence that any of the devices had earlier been sold and money received by Spectranet Ltd. The claimant’s main grouse is that the 2^nd defendant did not contact her after her response to the query.  In an employer/employee relationship, the employee has a duty to the employer. See Abomeli v N.R.C. (1995) 1 NWLR (Pt 372) 451 (CA) and held thus

 

An employee owes it a duty to his employer to protect its property or use same in such a way that no preventable loss would occur. Where he is tardy or there is lack of diligence in his approach to his duty or he is negligent and the master by the same suffers loss due to the unacceptable and untoward behaviour of the employee, such employee is guilty of misconduct to which disciplinary action can be taken against him ‘’ 

 

So, when the claimant in her written address refers to non-communication based on her response, the claimant after the response resigned.  So, the overall question is where is the doctrine of good faith in the master/ servant relationship.

 

Continuing on the earlier case the court of appeal held thus on this 

 

The doctrine of good faith is not based on dishonesty but absolute loyalty. it connotes a concept that in the course of the services being rendered by the servant he must apply utmost diligence in his approach to duty and manifest work ethics that would put him in good stead in the eyes of the employer.  

 

From the above authorities, the law is clear that where the employee did not protect his/her employer’s property or to prevent loss and shows untoward behavior is guilty of misconduct to which appropriate disciplinary action can be taken. The first step taken by the employer is the stoppage of salary and while in the exchange of emails between the claimant and the defendants, the claimant resigned and would want the court to hold in paragraph 2,2 of the final address that after the response to the email no disciplinary action was taken against her. It does not lie in the mouth of the claimant to dictate on when action against negligence which is seen as misconduct as it is entirely up to the employer to treat the matter as it deems fit and proper. However, having answered the query, the claimant has fulfilled what she is expected to do in terms of discipline as she waited for the defendants to take an action which was not coming and could not be left in the limbo with no stipulated time as she had to live day by day without knowing the next action. The defendants equally contended that the claimant was absent from work for some time to which she responded that with the non-payment of salary, she could not afford transport to work, meanwhile under cross examination by the 1^st defendant, CW testified that she had no idea the number of times she absented herself from work without approval. Exhibit OA8 is a mail to the claimant titled 

 

UNAUTHORIZED ABSENCE FROM OFFICE   

 

hello Buchi, it has been observed that you are working from home today without notification to your supervisor or HOD .

 

For the claimant to say she has no idea on the number of times absent cannot be the correct position. In British American Ins Co v Omolayo (1991) 2 NWLR (Pt 176) 721 (CA) The Court of Appeal held thus 

 

Absence from work by an employee is gross misconduct which entitles the employer to dismiss the employee.  Having condoned the act, the employer cannot bring it up later as no disciplinary action was taken.    

 

She resigned her employment by giving notice. On the issue of unpaid salary, the law is trite that where an employer withholds employee’s wages, the burden shifts to the employer. See African Petroleum Plc v Owodunni (1991) 8 NWLR (Pt. 210) 391.  The defendants cannot in my view escape liability for paying the claimant’s salary during the period of October 2012 till her resignation.  The defendants held that the stoppage of salary is as a result of the 62 missing devices. The salary of an employee is sacred and cannot be withheld without reasonable cause. See Chemiron & Non-Metallic Products Senior Staff Association v Benue Cement Company Plc (2005) 2 NLLR (Pt.6) 446 at 470.  There is nothing on record to suggest that where an employee is accused of misconduct and query issued to determine her involvement in the case, the resultant effect is to stop the salary of the employee, it remains that the claimant is entitled to her salary as the refusal by the defendant to pay claimant’s salary is wrongful. The claimant’s salaries in paragraph 27 of the statement of facts stands at N457, 958 and the transport allowance in paragraph 28 stands at N60,000 bringing the total to N617, 958. The response of the 1^st defendant in paragraph 11 of the statement of defense and counterclaim is that the sums of N457, 958 and N60,000 being the claimant’s accrued salary and transport allowance is not enough to liquidate the sum N926,000. Continuing in paragraph 12 of the Statement of Defense and Counterclaim, the defendants averred that the claimant is indebted to the defendants in the sum of N408,042 upon set off the 517, 985, of the accrued salary from the N926,000 the cost of sixty – three (63) devices. While the claimant calculated the salary and transport as 457,958 + 60,000= N517, 958 and not N617, 598.  The claimant is entitled to the sum of N517, 958 as salary.

  

The next relief is for an order to direct the defendants to release the claimant’s exit form upon her resignation to enable her access her accruable pension.  The only pleading on pension is in paragraph 11 of the statement of facts and nothing more.   The first defendant admits same in paragraph 3 of the 1st defendant’s statement of defense while the 2^nd defendant in paragraph 5 of the amended statement of defence avers that it’s not in a position to deny or admit the averment in paragraph 11 of the statement of fact. The law is that parties are bound by their pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleadings. Their case stands or falls by the averments in these pleadings and the evidence adduced in support of those averments, any evidence not supported by the pleadings should be ignored as it goes to no issue. See CAN & Anor v Harrison & Ors (2012) LPELR -8004 (CA), Jacob Abedi v Tikarede Zipamone & Anor (1994) 1 SC 16.

 

Exhibit OA3 and on her monthly salary but does not show any deduction on pension. There is also no bank statement to show the deduction. It is he who avers that must prove. What the claimant wants the court to do is to direct and compel the defendants to release the claimants Exit form upon her resignation. The claimant’s pleading on this is in paragraph 18 of the statement of facts and she averred 

 

The claimant avers that as part of the resignation procedures; she was given series of forms to enable her obtain clearance from the departments of the 2^nd defendant. all the departments cleared her except the human Resources -Department. However, upon submitting the form to the human Resource Department of the 2^nd defendant, the Human Resource Department refused to sign her form and as such withheld her Exit form which is required to obtain her pension. 

 

The 2^nd defendant in paragraph 3 of the amended statement of defense and counterclaim denies same and further states that the claimant resigned her appointment with the defendant without providing any information leading to the whereabouts of the 63 (sixty-three) missing devices in her custody.  The claimant has not placed any document on her resignation and the conditions for her entitlement after resignation. The claimant has consistently referred to resignation procedures, so has a duty to prove same for the court to determine if same was adhered to or otherwise. Of note is the fact that there is no document before the court. It is trite that the role of a judge is that of an impartial arbiter, it is not permissible for him to wander to find out what the conditions of employment between the parties are. The responsibility falls squarely on the party suing.   It is the claimant that averred that has to prove what procedure that was not followed. It is amazing that the claimant wants the court to order the defendants to release the exit form which the court cannot order without the condition of service or agreement between the parties to know what both agreed on when an employee is to exit the defendants’ company. Accordingly, having failed to prove same the relief fails and is dismissed. 

 

Now to the counterclaim by 1^st defendant  

 

As for the counter claim of the 1^st defendant, the 1^st defendant in its pleadings counterclaimed for the followings

 

 

 

 

The counterclaimant has averred that the claimant admitted that 62 devices got missing under her. She was issued query and she admitted liability for the loss of the 62 devices valued at N926, 000.  The learned counsel to the 1^st defendant has contended that the claimant did not react or respond to the counterclaim, so the claimant must be deemed to have admitted the counterclaim. Assuming the claimant did not react to the counterclaim, this however, does not mean that the 1^st defendant is entitled to automatic judgment. The 1^st defendant by the minimal evidential rule cannot assume that it is entitled to automatic judgment. See Ogunade v Osunkeye (2007) 4 NWLR (pt. 1057) 218 SC at 247.  By exhibit OA 11 the 2nd defendant tabulated the inventory and the total being N926, 000, in exhibit OA 15 the claimant was issued query and responded to same in exhibit OA 16, while exhibit OA 7 is apt. Having admitted on this, the 1^st defendant has succeeded in proving its counterclaim. The counterclaim succeeds to the extent of reliefs 1& 2.

 

For the avoidance of doubt, and for the reasons already given, the claimant’s case succeeds in part and only to the following extent

 

 

 

 

 

 

Judgment is entered accordingly.

 

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE