IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                        IN THE CALABAR JUDICIAL DIVISION

                                                     HOLDEN AT CALABAR

    BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

2ND DAY OF JUNE, 2026                                           SUIT NO.  NICN/CA/07/2023

BETWEEN

Okon Asuquo Sylvester ……… ……..…..… claimant

AND

1. Japaul Gold and Ventures Plc

        defendants

2. Japaul Mines & Products Ltd

 

JUDGMENT.

1.     The Claimant commenced this suit via a complaint dated 1/2/2023 and filed on the same date. The general form of complaint was accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on at the trial. Following the realization of the change of name of the 1st defendant, the claimant on 23/7/2025, was granted leave to amend his originating processes and the reply to the defendants’ statement of defence. Vide the amended statement of facts, the claimant prays for:-

                                i.            A Declaration that the Claimant as Staff of the Defendants is entitled to all his outstanding Monthly salaries owed him by the Defendants from the Month of September 2015 till date.

                             ii.            A Declaration that the Claimant having worked with the Defendants for more than 11 years now, is entitled to 11 Months’ gross salary at the rate of ?70,000.00 per Month, as terminal benefit as provided for in the 1st Defendant’s condition of service also applicable to the 2nd Defendant.

                           iii.            An Order directing Defendants to pay Claimant the sum of ?770,000.00 (seven hundred and seventy thousand Naira) as 11 Months’ gross salary as his terminal benefit, having served Defendants for more than 11 years, now.

                           iv.            An Order directing the Defendants to pay the Claimant the sum of ?5,583,450.00 (five million five hundred and eighty-three thousand Naira six hundred Naira) as salary from the Month of September 2015 to January, 2023.

                              v.            ?5,000,000.00 as damages

                           vi.            ?1,000,000.00 as cost of action

                        vii.            15% interest on the judgment sum from the date of judgment until the judgment sum is liquidated.

2.     Upon receipt of the originating process commencing this suit, the defendants filed their Memorandum of Appearance and statement of defence on 23/3/2023. The Claimant in turn filed his reply to the statement of defence and further witness written statements on 22/5/2023.

3.     On 28/11/2023, the Claimant testified in proof of his case as CW1, wherein he adopted his written statement on Oath filed on 1/2/2023 and his further written statement on oath filed on 22/5/2023, as his evidence in this case. Documents were tendered in evidence through CW1, they were admitted in evidence and marked as exhibits A to U. On 19/3/2023, CW1 was cross examined by counsel for the defendants, thereafter he was discharged.

4.     On 3/12/2024, one Jude Omini Augustine, called by the claimant testified as CW2. CW2 adopted his written statement on Oath filed on 22/5/2024, as his evidence in this suit. On 5/2/2025, CW2 was cross examined. Thereafter, he was discharged.

5.     On 19/3/2025, one Jegede Gbenga, testified in defence of the defendants as DW1. DW1 adopted his witness statement on oath filed on 24/4/2024. DW1 was cross examined by counsel for the claimant at the end he was discharged and the case was adjourned for adoption of final written addresses.  The adoption of final written addresses took place on 24/4/2026 and the case was adjourned to today for judgment.

6.     A resume of the facts presented by the parties are that the claimant was employed by the 1st Defendant in 2010. Following his employment, the Claimant was deployed to work with the 2nd Defendant, Japaul Mines & Products Ltd (a subsidiary of the 1st Defendant), at their quarry site located in Nyagachang, Akamkpa Local Government Area, Cross River State. The Claimant asserts that he maintained a continuous employment relationship with the Defendants for a period exceeding 11 years. However, the Defendants ceased the payment of the Claimant's monthly salaries starting from September 2015. This was despite the fact that the Claimant’s employment was never formally terminated by the Defendants through any written notice or letter of termination. Never the less, the Defendants dispute the Claimant's entitlement to salaries for the period following the cessation of payments.

7.     The Claimant placed reliance on the 1st Defendant’s Condition of Service (Exhibit A) to assert his right to terminal benefits and salary arrears. The Claimant instituted this suit on February 1, 2023, seeking declarations of entitlement to arrears from 2015 to 2023, terminal benefits, and damages.

8.     For the defendants they denied liability to the Claimants claim and contended that the Claimant’s employment was a renewable fixed term contract. The Claimant’s employment contract was periodically renewed until it was terminated vide Exhibit D2 and that Claimant is not being owed any salaries or terminal Benefits as claimed by Claimant or at all. Defendants tendered Exhibits D1-D3 in support of their case.

THE SUBMISSION OF THE DEFENDANTS:

9.     Counsel for the defendants adopted the final written address of the defendants as his argument. In the final wrtten address twin issues were formulated for determination. They are:-

1.     Was the claimant right in suing the 1st defendant.

2.     Did the claimant prove his case to warrant the reliefs sought.

     ARGUMENT

10.                        Issue 1: Was the claimant right in suing the 1st defendant.

11.                        This issue addresses the legal propriety of joining Japaul Gold and Ventures PLC as a party to the suit. The defendants are by this issue questioning the existence of a direct contractual relationship between the Claimant and the 1st Defendant.

12.                        Counsel submitted that the 1st Defendant is not a proper party in this suit, in that the 1st defendant is not employer of the claimant but 2nd defendant as per exhibit D3. Counsel further argued that the 2nd defendant being a subsidiary of 1st defendant is a separate entity and in law each entity is not answerable for the act of the other i.e. the parent company cannot be held responsible for contractual infraction by the subsidiary. Since the 1st and 2nd defendants are separate legal entities, they are distinct and liability cannot be automatically transferred from one to the other. To support his contention counsel relied on the case of BULLET INTERNATIONAL LTD V. OLANNIVIC (2017) 17 NWLR (PART 1594) 260 PGE 293 PARA A; where the apex court succinctly stated the law as follows:

“A subsidiary company has its own separate legal personality and is a distinct legal entity from its parent company”.  Per Kekere – Ekun, JSC (as he then was now CJN).

13.                        Counsel also, cited ECOBANK NIGERIA PLC V. HUAWEI TECHNOLOGIES COMPANY NIGERIA LTD & ORS (2017) LPELR – 45110(CA) PAGE 20, PARA A-B where the Court of Appeal held thus:

“The legal position is that a parent company and subsidiary company are separate legal entities and cannot be held accountable for the deeds of the other” Per Ogakwu J.C.A.

14.                        Counsel maintained that the 1st and 2nd defendants being separate and distinct legal entities in the eyes of the law, the 1st defendant cannot be held contractually liable for any alleged breach of contract of employment between Claimant and 2nd defendant. The law is also settled that, only parties to a contract can sue to enforce the contract. In support of this contention counsel relied on the cases of UBA PLC V. B.T.L INDUSTRIES LTD (2004) 18 NWLR (Pt.404) 180; MAINSTREET BANK LTD V. CHACHINE (2015) II NWLR (PART 1471) 479 PAGE 526, PARA B.

15.                        Counsel in concluding his submission on this issuue argued that in the context of the submissions hereinbefore, the 1st Defendant is not a proper party to be sued by Claimant in respect of his contract of employment with 2nd defendant and its name ought to be struck out from this suit.

16.                        Issue 2: Did the claimant prove his case to warrant the reliefs sought?

17.                        In arguing this issue, counsel submitted that the it is trite law that in civil cases; the burden of proof lies on the party who asserts the existence or non-existence of a fact and against whom the judgment of the court will be given if no evidence is produced on either side. See section 132 and 133 of the Evidence Act. This burden of proof is discharged on a balance of probabilities or preponderance of evidence. To support this position counsel relied on the cases of NASR V. BERINI (BETRUT-RIYAD) NIG. BANK LTD (1968) LPELR-25483 (SC) 41; MBANETO V. AGBU & ANOR (2014) LPELR-22147 (SC) 51; IKPEME & ANOR V. MBORA & ORS (2015) LPELR. The legal burden of proof rests on the claimant in the first instance, before it shifts to the defendants. MR. EMMANUEL AGBANOBI V. MR. AUGUSTINE AUENGATE AGBANOBI (20022) LPELR 58430 (CA) PAGE 33-34 PARA A-E.

18.                        According to counsel by the pleadings, parties have joined issues, on the employment and termination of Claimant’s employment, nonpayment of alleged salaries and terminal benefit to the Claimant, as per paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, of the statement of facts, paragraph 3 of the statement of defence and paragraph 2 of the reply to the statement of defence.

19.                        Counsel further argued that once issues are joined by parties, the onus is on the Claimant to lead credible evidence in proof of its case if he is to succeed. The effect of parties joining issues, is that the onus is on the Claimant to prove the existence or non-existence of the facts asserted by him. In support of this view counsel relied on the case of FIRST CITY MONUMENT BANK PLC V. ZUMAX NIGERIA LIMITED (2021) LPELR – 56245 (CA) PAGE 38 PARA C-D, where the Court of Appeal held thus

“In the mind of the law, an issue is joined on a particular fact necessitating its proof when its assertion is disputed by the opposing party.” Per Ogbuinya JCA.

20.                        Reliance was also place on the cases of .LEWIS AND PEAT V. AKHIMIEN (1976) 1 ALL NLR 460 @ 369; NWADIOGBU V. NNADOZE (2001) LPELR – 2088 (SC) PAGE 13 PARA E-F.

21.                        It is also the submission of counsel that the undisputed fact in this case, is that 2nd Defendant employed Claimant and this is clearly stated in paragraph one (1) of exhibit A, exhibit B and D1.  Claimant’s employment was converted to a “RENEWABLE FIXED TERM CONTRACT” and his salary was fixed at N70,000 gross salary per month. The claim for unpaid salary in this case, is based on the said N70,000 per month stated in exhibit D1 (See paragraph 3 of the Statement of Facts). The net effect of this, is that the Claimant accepted exhibit D1 and conducted himself in accordance with its provisions, therefore he cannot assert otherwise. To do otherwise is to approbate and reprobate, which the law frowns at, as stated in the case of UZOHO V. NATIONAL COUNCIL OF PRIVATIZATION (2022) 15 NWLR (Pt. 1852) 1, thus:-

Learned counsel must be reminded that a party cannot blow hot and cold or approbate and reprobate but must be consistent in his case.” (Per. Nweze, J.S.C.)

22.                        Counsel also relied on the case of CONOIL PLC V. SOLOMON (2017) 3 NWLR (Pt. 1551) 50, where the Court of Appeal restated the position of the law as follows:-

“No party is allowed to approbate and reprobate on the same issue at the same time. He must be consistent. It is unjust and inequitable for a party to blow hot and cold at the same time. Suberu v. State (2010) 8 NWLR (Pt. 1197) 586; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31“

23.                        Counsel submitted that by the reliefs sought in this case, the claimant is not challenging the termination of his employment, as there is no prayer for the court to declare the termination of his employment as wrongful. This goes to show that the Defendants right to terminate claimant’s employment vide exhibit D2, is uncontested and is binding on Claimant. The claimant having accepted the termination of his employment, what this court is to resolve is Claimant’s right to claim entitlement to for (i) alleged unpaid salaries for the period between September 2015 to January 2023, (ii) payment of 11 (Eleven) months gross salary as terminal benefit by virtue of exhibit A and (iii) Payment of damages.

24.                        According to counsel the fact that Claimant’s employment has been lawfully terminated has been established by its non-challenge by Claimant in its originating processes. Therefore, the contention of Claimant that he worked for 2nd defendant from 2015 to 2023, is baseless, especially against the background of the evidence of DW1 under cross examination, that he delivered the Exhibit D1 to Claimant and he refused to sign for it is not only credible but also discredits the case of the Claimant as pleaded in paragraph 2 (ii) of the reply to the statement of defence.

25.                        Counsel also submitted that the contention of the Claimant that the letter of termination was withdrawn pursuant to a purported letter dated 2/11/2015 in paragraph 2 (ii) of the reply to the statement of defence, is totally baseless, as Claimant neither tendered the letter of withdrawal by 2nd defendant nor the letter of 2/11/2015. Counsel urged the court to invoke the provisions of section 169 (d) of the Evidence Act, 2023 and hold that the production of the documents would have been unfavourable to the case of the Claimant.

26.                        Counsel contended that in the eyes of the law, exhibit D2 effectively terminated the employment of the Claimant and in the circumstance, his only remedy is in damages, which at common law is notice pay or payment in lieu of notice. In U.T.C (Nig) PLC V. PETERS (2022) LPELR PP. 22-24 paras B-D, the apex court succinctly stated the law when it held that:

“The employee however is not entitled to general damages as in a claim in tort. He is only entitled to what he would have earned over a period to lawfully terminate.”

27.                        On this issue firther reliance was placed on the cases of GARUBA V. K. I.C LTD (2005) LPELR – 1310 (SC), SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR – 3056 (SC) which were cited and followed by the apex court in U.T.C (Nig) PLC V. PETERS (Supra). This would have been the case had Claimant challenged the termination of his employment.

28.                        According to counsel, in exhibit D2, the entitlement of the Claimant is clearly stated therein being his salary for August 2016 plus salary in-lieu of notice. The evidence of DW1, is that payment of Claimant’s salary is by cash. Claimant did not provide any evidence to controvert this fact, neither did he (Claimant) produce his statement of account to show how he was paid salary prior to his termination of his employment to prove that his salary for September 2015 to August 2016 was not paid.

29.                        Counsel submitted by the pleadings, the onus of proof that the Claimant was not paid his salary is on him (Claimant). In this respect, Claimant pleaded in paragraph 8 of the Statement of Facts, that he will rely on his First Bank statement of account, to show that his salary for the period claimed was unpaid. The failure to provide the said Statement of Account is fatal to Claimant’s case and this Honourable Court is urged to invoke Section 169 (d) of the Evidence Act, 2023. Your Lordship is respectfully urged, to hold that the contention of the Claimant that he is owed salary from September 2015 to August 2016 is unsubstantiated and not proved.

30.                        Counsel submitted, on the merit of the claim for unpaid salary from 2016 – 2023, is mere wishful thinking, as it is not based on any scintilla of evidence showing the work done by the Claimant for the period. The law is settled, that the onus is on the Claimant to prove that he actually worked as claimed for him to be entitled to be paid his alleged unpaid wages. In MR. CC NWAFOR V. ANAMBRA STATE EDUCATION COMMISSION & ORS (2017) LPELR-42026 (CA) PAGE 32 PARA A-D the Court of stated this position of the law as follows:

“An employee is entitled to wages and salaries/allowances during the period of his or her lawful engagement in service no employee is under any obligation to pay salaries/wages/allowances to an employee who has not worked for the period of employment for example a dismissed employee can only …. emoluments he had worked for in the course of his employment. What the Appellant was entitled to was the arrears of his emolument for the period he actually worked for the employer. Per Tur, JCA. See also the case of BALOGUN V. UNION BANK (2016) LPELR – 41442 (CA) PAGE 21 PARA D-E.

31.                        Counsel submitted that in addition, the apex court has held in a plethora of cases, that a claim for unpaid wages, is in the realm of special damages which must be specifically pleaded and strictly proved, as required by the decision in SPDC LTD V. TIEBO VI & ORS (2005) 9 NWLR (PART 1260) PAGE 1 & PAGE 20, PARA H-A, where the Apex Court stated this position of the law as follows:

“…None the less, the law is trite that unless pleaded and strictly proven, the Court is not obliged to make any awards in that regard for special damages. This aspect of the lower Court judgment should be set aside and I so hold “In this case cited above, the Respondent upon dismissal from her employment the following reliefs among other payment of arrears of salaries, allowances and other benefits to which the Plaintiff has been entitled from the 11th June 1995 being the date of her interdiction from duty until the determination of this suit. That claim of the Respondent in that case would appear to be in pari material with the Appellants claim subject of this Appeal. It is clear therefore that the Appellants claim for salaries, allowances and other derequisition of employment are in the nature of special damages which needed to be pleaded and specifically proved.  Per Eneh, JSC.

32.                        According to counsel in this case, Claimant offered no credible evidence in proof of the work he did and for which he should be paid by 2nd defendant. In addition, the undisputed evidence before the court is that 2nd defendant’s Quarry was closed down in August 2016 vide exhibit D3, which fact was communicated to the Nyagachang Community. Claimant did not challenge nor dispute this fact during cross examination, particularly when the evidence in court, is that he is a member of the Nyagachang council of Chiefs that duly endorsed receiving and exhibit D3.

33.                        Counsel continued his submission that the law is settled, that proof of special damages, requires Claimant to lead credible evidence of such nature or character, that would suggest that he (Claimant) is indeed entitled to the award of special damages as claimed in this case i.e. his alleged unpaid salary from August, 2015 to January 2023. To support this submission reliance was placed on the following cases on the meaning of strict proof of special damages, MUSA & ORS V. GOVERNOR OF ADAMAWA STATE (2024) LELR-620 99 (CA) PP. 29-31; OBIORU V. ACCESS BANK PLC (2024) LPELR-62515 (CA); VITAL INV. V. CAP PLC (2022) 4 NWLR (PT 1820) 205 (SC) ONYIORAH V. ONYIORAH (2019) 15 NWLR (PT 1695) 22 7 (SC).

34.                        Counsel pointed out that the Claimant’s claims in this case, are not based on wrongful termination of employment as already submitted since there is no relief for declaration that the terminaison of his employment to be declared wrongful, but for the payment of 11 (Eleven) months gross salary as terminal benefit. This means, Claimant accepts the fact that his employment has been properly terminated by exhibit D2, that is to say in August 2016. In the circumstance therefore, Claimant’s demand for terminal benefit is hinged on the “1st defendant’s hand book issued to Claimant upon being issued with appointment letter by 1st defendant in 2011” See paragraph 13 of the statement of facts. On the face of exhibits B, D and D1, there is no reference to exhibit A being incorporated or by necessary interference, as part of Claimant’s contract of employment. In the absence of such, exhibit A is inapplicable to the Claimant. To support his contention counsel relied on the case of REGISTERED TRUSTEES OF IKOYI CLUB 1938 V. AYODEJI (2020) LPELR – 51633 (CA) where the Court of Appeal held that

“it is hombook law that a collective agreement is only binding on parties where it is expressly or by necessary implication incorporated in the contract of service, but not otherwise. Abalogun v. Shell (supra) at 337, Olusanya v. UBA Plc (2017) LPELR (42348) 1. at 36 and Osoh v. Unity Bank Plc (2013) LPELR (1998) 1 at 24-26. So, in order for the respondent to take benefit of the Handbook it has to be shown that it was incorporated in his letter of employment either by reference or by necessary implication”

35.                        It is submission of counsel that exhibit A which is the handbook of 1st Defendant cannot apply to claimant’s employment with 2nd defendant, particularly when exhibits B, D and D1, did not incorporate the said exhibit A by reference or necessary implication.

36.                        Counsel submitted that the claim for damages in this case is misconceived based on Claimant’s misunderstanding of the law. The law is settled that damages in contract of employment is not the same as in tort and is measured by notice pay or payment of salary in lieu. To support his contention counsel relied on the cases of U.T.C V. PETER (SUPRA), GARUBA V. K.I.C LIMITED (SUPRA), AND SHITTA-BEY V. FEDERAL PUBLIC COMMISSION (SUPRA) where the Supreme Court held that an employee is not entitled to damages as claim for tort, he is only entitled to what would have earned over a period required to lawfully terminate his employment.

37.                        According to counsel for the Claimant to sustain his claim for damages, he (Claimant) must first show that his employment was wrongfully terminated and this will constitute the wrongful act that will be the basis for the award of damages and in accordance with the law. Unfortunately, Claimant was unable to show this at the trial.

38.                        Counsel submitted that the case of the Claimant is not based on wrongful termination of his employment and if that was the case (which is not), the quantum of damages which Claimant will be entitled to is not at large but determined by notice, pay or salary in lieu of notice. As decided in SKYE BANK PLC V. ADEGUN (2024) LPELR – 62219 (SC) PP. 48-50)

39.                        Counsel further argued that the Claimant led no evidence of any loss he suffered by reason of the lawful termination of his employment by 2nd defendant, he proved his salary was not paid between September 2015 to August 2016 when his employment was terminated and the work he did between 2016 and January 2023 when the 2nd defendant’s Quarry was closed, there is clearly no wrong doing on the part of the Defendants for which Claimant should be compensated in damages. The law is trite, that where no wrong doing on the part of the Defendant is established, damages cannot be inferred and awarded. In support of this view counsel relied on the case of HON EZE HYGINUS J.S OGBIRI & ANOR V. NIGERIA AGIP OIL COMPANY LIMITED (2010) 14 NWLR (PART 1213) 208 @225-227 PARA H-E (2010) LPELR – 4688 (CA) where the Court of Appeal stated the law thus;

“Damages are not awarded on sentimental grounds. The award of damages is discretionary and it has to be exercised Judiciously and Judicially. Where there is no evidence to support a claim for damages the claim ought to be dismissed. Per Eko, J.C.A.

40.                        Counsel urged the court to reject the claim for damages as Claimant’s entitlement to it was not proved.

41.                        On claim for solicitor’s cost, counsel submitted is in the realm of special damages, which must be specifically pleaded and strictly proved. This so-called solicitor’s cost was not specifically pleaded and proved as required by law. The courts have held in a plethora of cases, that in order to establish a claim for solicitor’s fees, a Claimant must produce receipts of payments made to his solicitor or at least call the said solicitor to give evidence to the effect that he was paid the amount claimed by the Claimant as solicitor’s fee. In FBN LTD V. OWEI (1997) 1 NWLR (PART 484) PAGE 744 @756 PARAS F – G the Court of Appeal held as follows:

“a lawyer’s professional fee is not something to be proved by mere ipse dixit. Everybody knows that lawyers issue receipt for any money paid to them. According to the respondent in his Evidence in Chief at page 74 of the records

“I paid my counsel the sum of N1,000 for my defence. It was Mr. J. O. Ahimien who defended me in the magistrate court.”

” It is my respectful view that such an averment can only be proved in one of two ways namely (a) by tendering a receipt if one was issued or by calling the said J. O Ahimien to testify and say that he was duly paid the sum of N1,000. However, the Respondent did none of these. Our law is that he who asserts must prove (See Section 135 (1) of the new evidence Act 1990. It is regretted therefore that regardless of whether the Respondent actually paid N1,000 to a lawyer or not, the award must be disallowed for want of proof.” Per Akpabio J. C. A. as he then was.

42.                        Counsel submitted that the Claimant having failed to produce the receipt of payment of his alleged solicitor’s fees nor called his solicitors to testify confirming this fact, it (Claimant) claims in this respect should be rejected as baseless.

43.                        On post jugment interest, of 15%, counsel submitted that in the very unlikely event that Claimant’s claims succeed, the award of post judgment interest, is at discretion of this Honourable Court and is capped at 10%. See Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (Rules). According to counsel, Claimant did not advert his mind to this provision at the time of drafting the Claimant’s claim otherwise this unnecessary claim would have been avoided.

44.                        In concluding his submission, counsel urged the court to answer the two issues for determination in favour of the Defendant and dismiss this suit in its entirety.

THE SUBMISSION OF THE CLAIMANT.

45.                        The Claimant in the final written address formulated twn issues for determination by the Honourable Court to wit:

1.     Whether from the totality of evidence adduced before the Honourable Court, the claimant has not prove(sic) his case and is not entitle to the reliefs sought.

2.     Whether the 1st and 2nd defendants though distinct and separate personalities who jointly appointed and engaged the claimant to work at its(sic) community liaison officer at its(sic) quarry site at Nyagasng are not jointly and severally liable for the failure to pay the claimant salary arrears owed and other benefits as contained in the 1st defendant’s Handbook applicable to 1st and 2nd defendants’ employees.

     ARGUMENT:

46.                        Issue 1: Whether from the totality of evidence adduced before the Honourable Court, the claimant has not prove(sic) his case and is not entitle to the reliefs sought.

47.                        Counsel started arguing issue 1, by answering the issue in the affirmative, that is to say the Claimant has indeed adduced concrete and credible evidence before the Honourable Court, which clearly depict that the Claimant has proved his case and is therefore entitled to the reliefs sought in this suit.

48.                        Counsel argued that the Claimant in his evidence averred that he was employed by the Defendants in 2010, but was issued with the appointment letter, exhibit ‘’B’’; and the Handbook, containing the condition of Service, exhibit ‘’A’’ by the 1st Defendant in 2011 and was assigned to work with the 2nd Defendant, at the Defendants’ Quarry Site at Nyagachang, in Akamkpa Local Government Area, Cross River State. Exhibit ‘’C’’ dated 15/6/2011 is the 1st Defendant’s Reference Form, issued to the Claimant, and duly filled by the Claimant’s Referee. Exhibit ‘’D’’ is the Claimant’s Salary Review and Positioning on the Grading Structure, of the Defendants issued to the Claimant by the 1st Defendant in June, 2013 and the Monthly Gross Salary Slip issued by the 2nd Defendant to the Claimant in same June, 2013. These pieces of credible evidence were never controverted nor contradicted throughout the trial. DW1 under Cross examination on 6/2/2024 admitted the fact that exhibit ‘B’ is the Claimant’s appointment letter issued to the Claimant by the 1st Defendant in 2011. DW1 Further admitted the fact that exhibit ‘A’ is the 1st Defendant’s Handbook, issued to the Claimant by the 1st Defendant in 2011. Exhibit A, at page 18 paragraph 5.6 provides for the entitlement of its personnel/employee who had worked with the Defendants for two (2) years and more. There is evidence before the Court that the Claimant was issued with appointment letter, exhibit B and A by the 1st Defendant in 2011 and not in 2015, as alleged by the 1st and 2nd Defendants. Counsel submitted that admitted facts does not require further proof by evidence, whether oral or documentary and when evidence is unchallenged or uncontradicted onus of proof is satisfied on minimal proof. To support his contention counsel relied on the cases of AKPAN Vs. UMOH (1999) 7 SC (Pt111) at P.25 and MOBIL OIL(NIGERIA) LTD V. NATIONAL OIL & CHEMICAL MARKETING CO LTD (2000) 9 NWLR Part 671 Page 44 at 52 Para H.

49.                        Counsel further submitted that DW1 under cross examination admitted before this Court that exhibit ‘B’ is the Claimant’s appointment letter and not exhibit ‘D1’ alleged by the Defendants. This admission by DW1 exposes the falsehood inherent in the evidence of the Defendants, and clearly buttress and strengthens the evidence of the Claimant, that the Claimant was employed in 2010 and issued with appointment letter in 2011 and that Claimant was not employed in 2015, and that Claimant’s appointment was not terminated in 2016, as alleged by the Defendants in exhibit D2. Counsel contended that a letter of employment is a vital document in an employment case, because it goes a long way, as is often the case, to greatly assist the Court in ascertaining the terms and conditions of service binding on the parties thereto, as in the instance case. In support of this submission reliance was placed on the case of UBN v. CHINYERE (2014) 40 N.L.L.R (Pt.123) 315 CA.

50.                        Counsel further argued that evidence elicited from a party or his witness under cross examination which goes to support the case of the party cross examining, as in the instant case, constitutes evidence in support of the case of that party. Counsel supported this contention with the cases EVA ANIKE AKOMOLAFE & ANOR V. GUARDIAN PRESS LTD & ORS. (2010) LPELR-366 SC Pp 15-16 paras C – A.

51.                        According to counsel exhibit ‘A’ is the 1st Defendants HandBook containing the condition of service, issued along with exhibit ‘B’, by the Defendants to the Claimant in 2011. DW1 under cross examination admitted the fact that exhibit A is the 1st Defendant’s HandBook issued by the Defendants to the Claimant in 2011. Counsel submitted that where more than a single document provides for the term of the contract, as in the instant case, where exhibits ‘A’ & ‘B’ provide for the terms of the contract of the Claimant with the Defendants, such document must be construed jointly, in order to have the total account of what the terms of the contract were. To support his contention counsel relied on the case of LADIPO v. CHEVRON NIG LTD (2005) (Supra).  

52.                        Counsel also submitted that exhibit U is the Claimant’s Pay Slips for the Months of June, July and August 2015, issued by the Defendants to the Claimant, indicating that the Defendants paid the Claimant salary last for the Month of August, 2025. Exhibit R is the Claimant’s Statement of account indicating that the Claimant was paid his August salary on the 4th of September, 2015. These pieces of evidence were never contradicted throughout the trial. Exhibit S depicts that the Claimant was still in the employment of the Defendants as at 2017, which refutes the Defendants’ purported termination of the Claimant’s appointment by exhibit D2. The Claimant in his evidence had denied the purported termination of his appointment and maintained that he work with the Defendant as its Community Liaison Officer up to early 2022 when the Defendant’s Manager, DW1, came to Defendants’ site at Nyagachang and offered to pay Claimant less than Claimant’s  accumulated salary arrears, which Claimant refused and insisted on the payment of his full salary arrears, which refusal prompted Claimant to consult his solicitors and instruct them to write and demand for the payment of Claimant’s salary arrears. CW2 is evidence to the effect that as at February 2022, the Claimant was still in the employment of the Defendants, as its Community Liaison Officer, and that DW1 met CW2 and the Claimant at the Defendants’ Quarry site at Nyagachang, was not controverted nor contradicted throughout the trial. Counsel submitted that evidence of a witness not challenged or rebutted at trial is established and the court is bound to act on it. It was also submitted that parties are bound by the contract they freely enter into. In support of this submission counsel relied on the case of GBEDU v. ITIE (2020) 3 NWLR Part 1710 Page 104 at 129 Para H.

53.                        Counsel further submitted that exhibits ‘B’ & ‘A’ tendered by the Claimant, and admitted by DW1 under cross examination, as the Claimant’s appointment letter and Defendants’ HandBook are what regulates the Claimant’s appointment with the Defendants and not exhibit D1. As parties are bound by the terms embodied in a contract of employment, extrinsic evidence is not admissible to add to, vary or subtract. See OFORISHE v. NIGERIA GAS COMPANY LTD (2018) 2 NWLR Part 1602 Page 35 at 53 Para D.

54.                        Counsel continued his submission that there is evidence before the Honourable Court that the Claimant was appointed Defendants’ Community Liaison Officer in 2011, but contrary to the assertion by the Defendants, that the appointment was for one(1) year subject to renewal, exhibit ‘D’ is a letter of salary review and positioning on the grading structure of the Defendants, issued to the Claimant by the 1st Defendant and dated June 3rd 2013, after the Claimant was issued with the appointment letter in 2011 and had worked for some two years with Defendants and  not renewal of appointment. Exhibit D undoubtedly depicts the confirmation of the Claimant’s appointment and discloses the fact that the Claimants appointment was not for one (1) year, nor subject to periodic review. Counsel submitted that the Defendants have not placed anything before the Court to show how claimant’s appointment was purportedly reviewed from 2011 yearly up to 2015 and the purported letter of appointment issued in 2015, exhibit D1 and the purported termination letter issued in 2016, exhibit D2, which the Claimant has denied ever being issued with, and joined issue with the Defendants, in his reply to Statement of defence, made no reference to exhibit B, which DW1 admitted under cross examination to be the Claimant’s appointment letter. Counsel submitted that Defendants having alleged to had employed the Claimant in 2015 and terminated Claimant’s appointment in 2016, which allegation Claimant denied and shifted the burden of proof to Defendants, 1st and 2nd Defendants had the onus to prove the assertion, as he who asserts must proof. Counsel also submitted that the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. To support this contention counsel relied on the case of OMISORE V. AREGBESOLA (2015) 15 NWLR Part 1482 Page 1 at 273 Para A-B.

55.                        The Defendants in their amended statement of defence filed on 21st January, 2026 had in paragraph 3(v) of its statement of defence pleaded thus: The Defendants deny that the Claimant suffered any frustration or hardship as alleged or at all. The decision of the Claimant to source for funds from friends is based on his free will and not on account of any wrong doing of Defendants. The Claimant’s employment having been properly terminated and his entitlement paid in full is not owed any money whatsoever by the Defendant to have caused him any alleged frustration. The Claimant in paragraph 2 of his amended reply to the statement of defence reiterated and insisted that his appointment was never terminated as Claimant was never served with the purported letters of appointment and termination of appointment, that Claimant’s appointment subsist till date and maintained that the Defendants did not pay Claimant, his accumulated salary arrears and entitlement and relied on his First Bank Statement of  account (Exhibit R) and pay slips to show when Defendants, paid Claimant Last.

56.                        According to counsel, curiously, the Defendant substituted the earlier witness written statement filed on 23/3/2023 with another filed on 16/2/2026, and in an attempt to mislead the court, amended paragraph 9 of its witness written statement filed on 23/3/2023 without the leave of court, and smuggled in un-pleaded facts into paragraphs 7 and 8 of the witness written statement on oath of  Mr. Gbenga Jegede (DW1) filed on 16/2/2026, which states thus: When Claimants employment with 2nd Defendant was terminated, I personally gave the letter to him and told him to stop work immediately and that his entitlement will be paid to his Bank Account with the Company. Claimant after collecting the letter refused to sign for it and walked away. The Claimant stopped work on 30th August, 2016 and since then he has not performed any work whatsoever for the Defendant. Counsel submitted that these facts contain in paragraphs 7 and 8 of DW1 witness written statement, filed on 16/2/2026 were never pleaded in the Defendants’ amended statement of defence, filed on 21/1/2026 and the Defendants did not obtain the leave of Court to amend its witness written statement on oath. Counsel submitted that parties are bound by their pleadings and evidence led on facts not pleaded goes to no issue. In support of this position counsel cite and relied on the case of AGU V. GENERAL OIL LTD (2015) 17.

57.                        It is submission of counsel that the Defendants in the instant case, cannot go outside its pleadings to lead evidence or rely on facts which are extraneous to those pleaded. Counsel maintained that civil cases are won and lost on pleading. This is so because facts not pleaded cannot be put in evidence before the Court. Such evidence, if led, as in the instant case, will be discountenanced. To buttress the point being made counsel relied on the cases of ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE (2018) 1 NWLR Part 1599 Page 32 at 58 Para G-H; OGBORU V. OKOWA (2016) 11 NWLR Part 1522 Page 84 at 156 para D.

58.                        Counsel submitted that the Defendants in paragraph 3(iv) of their amended statement of defence filed on 21/1/2026, alleged that Defendant paid Claimant’s terminal benefits in full, but altered their position in paragraph 7 of the witness written statement of DW1 filed on 16/1/2026 to assert that DW1 told Claimant that Claimant’s entitlement will be paid to Claimant’s Bank account with the Defendants. Counsel submitted that a party is not allow to speak from both sides of his mouth nor blow hot and cold, but must be consistent with his case. To support this contention counsel relied on the case of UZOHO V. NATIONAL COUNCIL OF PRIVATIZATION (2022) 15 NWLR Part 1852.

59.                        It is further submission of counsel that there is uncontradicted evidence before the Court that DW1 was at Defendants Quarry site at Nyagachang in Akamkpa Local Government Area, Cross River State, in February, 2022 and offered to pay the Claimant less than the Claimant’s accumulated salary arrears, which offer Claimant rejected and insisted on being paid the full payment of his accumulated salary arrears. This evidence was corroborated by CW2, who confirmed that he met DW1 with the Claimant at the Defendants’ Quarry site at Nyagachang in Akamkpa Local Government Area, Cross River State, in February, 2022 and that DW1 transferred the sum of N50,000.00 into CW2’s account and that the Claimant was still in the Defendants’ employment. Assuming but not conceding that the Claimant’s appointment was terminated, why did DW1, the Defendant’s manager offer to pay part of Claimant’s accumulated salary arrears in February, 2022. Counsel contended that Counsel address is not evidence. Where evidence is unchallenged or uncontradicted, the onus of proof is satisfied on minimal proof, since there is nothing on the other side of the scale. In support of this submission counsel relied on the case of MOBIL OIL(NIGERIA) LTD V. NATIONAL OIL & CHEMICAL MARKRTING CO. LTD (2000) NWLR Part 671 Page 44 at 52.

60.                        Counsel also submitted that he who assert must prove. Defendants who alleged that Claimant’s appointment was purportedly renewed in 2015 and terminated in 2016, had the burden to proof to show how the Claimant’s appointment was renewed yearly from 2012, and also adduce evidence to show how Claimant salaries were paid from September, 2015 to 30th August 2016, when the Claimant’s appointment was purportedly terminated, but the Defendants have woefully failed to established their allegation that the Claimant’s appointment was terminated in 2016. Indeed, exhibit ‘S’ depicts that as at November 2017, the Claimant was still working with the Defendants as its Community Liaison Officer. The burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it, for negative is usually incapable of proof. To support this position counsel placed reliance on the case of OMISORE V. AREGBESOLA (2015) (supra)

61.                        According to counsel the Claimant has led credible evidence, as shown in exhibits ‘A’ ‘B’ to U; the evidence of CW1 and CW2 and the admissions of DW1 under cross examination, to establish and prove the fact that Claimant was issued appointment letter by Defendants in 2011, confirmed his appointment in 2013 and paid Claimant salary last for the Month of August, 2015. That Defendants Owed claimant salaries from September, 2015 till date, and in February, 2022, the Defendants through their manager, DW1, offered to pay Claimant less than Claimant’s accumulated salary arrears, which offer the Claimant rejected and insisted on being paid his full salary and the refusal to pay prompted claimant to institute this suit after Defendants’ failure to comply with the Claimant’s demand through his solicitors. Counsel submitted that the Supreme Court has held that credible evidence means the evidence worthy of belief or credit, it must not only proceed from a credible source, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances. To support this proposition counsel relied on the case of AGBI V. AUDU OGBEH (2006) 11 NWLR Part 990 Page 65 T 116 Para. E.

62.                        Counsel submitted that by virtue of section 134 of the Evidence Act 2011, the standard of proof in civil cases shall be discharged on the balance of probabilities or preponderance of evidence, this mean that in civil proceedings judgment is given to the party with the greater weight or stronger evidence. In support of this contention reliance was placed on the case of INTERDRILL (NIG) LTD V. UNITED BANK FOR AFRICA PLC (2017) Part 1581 Page 52 T75 Para C-D.

63.                        Counsel also argued that the Defendants have in paragraphs 8.1.2 to 8.1.3 contended that the burden of proof lies on the party who asserts the existence or non-existence of a fact and against whom judgment will be given if no evidence is produced on either side and further argued that evidential burden of proof only shifts to the Defendant where the Claimant has discharged the legal burden of proof placed on him by law and that the Claimant will succeed on the strength of his case  and not on the weakness of the case of the Defendants, and submitted that the legal burden rested on the Claimant and sought to rely on the cases  of NASR V. BERINI (BETRUT-RIYAD) NIG. BANK LTD (1968) LPELR-25483(SC) 41; MBANETO V. AGBU & ANOR (2014) LPELR-22147(SC) 51; IKPEME & ANOR V. MBORA & ORS (2015) LPELR.

64.                        Counsel in response submitted that the Defendants argument is misconceived and the cases of NASR V. BERINI (BETRUT-RIYAD) NIG. BANK LTD (1968) LPELR-25483(SC) 41; MBANETO V. AGBU & ANOR (2014) LPELR-22147(SC) 51; IKPEME & ANOR V. MBORA & ORS (2015) LPELR cited by the Defendants cannot avail the Defendants, but rather supports the case of the Claimant. The Claimant has led credible evidence to show that he was employed in 2010, but issued with appointment letter in 2011 and shown in exhibit B and was given the Defendant’s condition of service, exhibit A, by the 1st Defendant in 2011. Tendered his pay Slips, exhibit U and Bank Statement, exhibit R, to established that Claimant was paid last in August 2015 and that Claimant’s appointment was not terminate and thereby shifted the evidential burden to the Defendants to show how the Claimants appointment was yearly renewed from 2012 to 1015; how the Claimant was paid salary from September, 2015 to 2016, but the Defendants woefully failed to place any evidence before this Honourable Court to proof its allegations. It was submission of counsel that in civil suits, unlike criminal cases, the burden of proof keeps oscillating among the parties. By Section 140 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. To support this submission reliance was placed on the case of UNITY BANK PLC V. AHMED (2020) 1NWLR Part 1705 Page 364 at 383 Para ;386 B-C. He who asserts must prove. In civil cases, the onus of proving a particular fact is fixed by the pleadings. It does not remain static but shifts from side to side. As decided in GBAFE V. GBAFE (1996) 6NWLR Part 455 Page 417 at 432 Para D-F.

65.                        Counsel also Submitted that the Defendants in paragraph 8.1.6 of its address, has erroneously submitted that the undisputed fact in this case is that the 2nd Defendant employed the Claimant and that this is stated in exhibits A, B and D1 and that Claimant’s employment was converted to a renewable fixed term contract and that Claimant’s salary was fixed at N70,000 gross pay per Month and argued that the net effect is that Claimant accepted exhibit D1 and conducted himself in accordance with the provisions and cannot assert otherwise and sought to rely on the case of UZO V. NATIONAL COUNCIL OF PRIVATIZATION (2022) 15 NWLR (Pt.1852) 1 and CONOIL PLC V. SOLOMON (2017) 3 NWLR (Part 1551) 50. Counsel submitted that the Defendants submission is unfounded and same is not borne out of the evidence led before the Court in this suit, and the afore cited judicial authorities are in applicable to the facts and circumstances of this case. Counsel further submitted that contrary to the submission of Defendants, exhibits B and A were issued to the Claimant by the 1st Defendant and not the 2nd Defendant and the Claimant has denied being issued with exhibit D1. Defendants have not placed anything before the Honourable Court to show how Claimant’s contract was renewed from 2012 to 2015. Exhibit D issued to Claimant by the 1st Defendant in 2013 clearly depicts the confirmation of the Claimant’s appointment and buttress the fact that the Claimant’s appointment was not for a fixed term. Counsel submitted that Claimant’s suit is not predicated on termination of appointment but base on payment of accumulated salary arrears and other entitlement and the Defendants did plead and lead any credible evidence to show how Claimant was served with exhibit D1 and D2 after Claimant had denied been served with exhibits D1 and D2 and joined issue in his reply and further written statement with Defendants. Counsel submitted that where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such a person must be established. To buttress his argument counsel placed reliance on the case of REGISTERED TRUSTEES OF ACTS OF THE APOSTLE CHURCH V. FATUNDE (2009) 8 NWLR Part 1144 Page 513 at 532 E-G.

66.                        In paragraphs 8.17 to 8.1.11 of the Defendant’ address, the Defendants have contended that the Clamant did not challenged termination of his appointment and therefore the Defendant is right to terminate Claimant’s employment vide exhibit D2 is uncontested and binding. Counsel in answer submitted that the Claimant’s suit is not predicated on termination of employment as the Claimant has led credible evidence and establish the fact that his employment with Defendants subsist and the Defendants have not pleaded any fact facts nor lead credible and admissible evidence to show how Claimant was served with exhibits D1 and D2.  The facts contained in paragraphs 7 and 8 of the witness written statement of DW1, filed on 16/2/2026, alleging that DW1 delivered exhibit D1 to the Claimant, were never pleaded, and it is trite that un-pleaded facts go to no issue. Counsel submitted that a Defendant is not entitled to rely on a defence which is based upon facts not stated in his statement of defence. The facts a defendant relies upon must be stated in his pleadings. See ISAAC V. IMASUEN (2016)7 NWLR Part 1511 Page 250 at 265.

67.                        The Defendants have contended that Exhibit D2 effectively terminated the employment of the claimant. in answer counsel submitted that the Claimant unequivocally and vehemently denied the purported termination of his appointment, as the Defendants Community Liaison Officer and also denied been served with exhibits D1 and D2. The denial of the service of exhibit D1 and D2 shifted the burden of proof to the Defendants to show by credible evidence how Exhibits D1 and D2 were served on the Claimant, in order to establish the service of the purported termination of appointment on the Claimant. Counsel also submitted that evidence that is at variance with the issues joined in the pleadings goes to no issue and is inadmissible. Issues are joined in the pleadings, not in the evidence. Evidence which is at variance with the pleadings goes to no issue and should be rejected and if admitted should be expunged from the record. See STATOIL (NIG) LTD V. INDUCON (NIG) LTD (2021) 7 NWLR Part 1774 Page 1 at 101 Para F-H

68.                        Counsel contended that the Defendants evidence is riddled with inconsistencies. For instance, the Defendants in paragraph 3(iv) of its statement of defence aver thus: ‘the 2nd Defendant received the Claimant’s letter of 4/3/2016 and duly replied the said letter on 4/3/2022 stating clearly that the Claimant’s employment had been terminated and his terminal benefits paid in full’’ But the Defence’s evidence contained in paragraph 8 of the witness written statement of DW1, Defendants altered its position and stated thus: ‘’ When Claimant’s employment with the 2nd Defendant was terminated. I personally gave the letter to him and told him to stop work immediately and that his entitlement will be paid to his bank account with the company, Claimant after collecting the letter, refused to sign for it and walked away. Counsel submitted that aside from the fact that the Defendants speaks from two sides of its mouth and tantamount to approbating and reprobating, which a party is not permitted to do. The facts contained in paragraph 7 and 8 of the Defendants’ lone witness, DW1’s witness written statement on oath, were not pleaded and same goes to no issue and ought to be rejected. In support of this argument reliance was placed on the cases of UZOHO V. NATIONAL COUNCIL OF PRIVATIZATION (Supra), STATOIL (NIG) LTD V. INDUCON (NIG) LTD(Supra).

69.                        Counsel submitted that the argument of the Defendants in paragraphs 8.1.9 of its final address that Claimant’s employment termination had been lawfully established by the non-challenge by Claimant in Claimant’s originating process, is misconceived and unfounded and should be discountenance. Counsel submitted that exhibits K, M and O, are Claimant Solicitor’s letters of demand for the payment of salary arrears and 11 Months’ salary as terminal benefit to Claimant, as entitlement, as contained in the condition of service of Defendants’  exhibit A. Claimant in exhibits K, M and O clearly stated that his employment was subsisting and denied the purported termination of his employment by the Defendants and the Claimant’s suit is not founded on termination of employment, but on  payment of Claimant salary arrears and 11 Months’ salary as terminal benefit, having worked for the Defendants for more than 11 years, as contained in the Defendants’ condition of service. It is submitted that facts contained in paragraphs 8 and 9 of DW1 witness written statement to the effect that DW1 delivered exhibit D1 to the Claimant and Claimant refused to sign and collect were not pleaded in the Defendants statement of defence, and goes to no issue. To buttress the point being made counsel relied on the case of ISAAC V. IMASUEN (2016)7 NWLR Part 1511 Page 250 at 265. Counsel was submitted that an employee whose employment has not been terminated is entitled to his salary and emolument. In support of this submission reliance was placed on the case of N.B.C. PLC V. EDWARD (2015) 2NWLR (Part 1443) Page 201.

70.                        Counsel submitted that the Defendants argument in paragraphs 8.1.12 of its address that DW1 stated that the payment of Claimant’s salary is by cash is not pleaded and is not contained in DW1 witness statement before the Honourable Court. Counsel submitted that the Defendants contention that the Claimant did not provide any evidence to prove that his salary for September 2015 to August 2016 was not paid, is laughable and unfounded. Exhibit U is the Claimant’s pay slips for the Months of June, July and August 2015, depicting that the Claimant was last paid salary for the Month of August, 2015. Exhibit R is the Claimant’s statement of Account with First Bank, also showing that the Claimant was paid salary last in August,2015, which clearly buttress the fact that the Claimant has by credible evidence established that his appointment was not for a fixed term and same was not renewed nor terminated, and that the Defendants owed Claimant salary arrears and other entitlement as claimed. Counsel also argued that the purpose of address of Counsel is to demonstrate to the Court and Counsel to the adversary, his opinion of facts and the law as shown by the evidence before the Court. Notwithstanding its brilliance in form and/or presentation, counsel address is not evidence. To support this proposition counsel relied on the case of OYEYEMI V. OWOEYE (2017) 12 NWLR Part 1580 Page 364 at 403 -Para E-F.

71.                        Counsel submitted that the Claimant has specifically pleaded and by credible evidence established the fact that Defendant owed Claimant salary arrears from September 2015 till date and tendered his pay slips and Bank statement which were never controverted nor contradicted throughout the trial. Counsel submitted that the Claimant in his evidence had stated that exhibit D3 was procured for this suit and that the Defendants did not close down its Quarry site at Nyagachang, but temporally suspended operation and retained the services of its core personnel including Claimant and other key personnel like the Personnel Manager; Chief Security Officer, Accountant. Counsel submitted that exhibit S, a letter of Authority from the Palace of the Village Head of Nyagachang Traditional; Rulers Counsel addressed to the 2nd Defendant’s Manager dated 20/11/2017, undoubtedly establish the fact that the Defendants’ Quarry site was not permanently shut down and that the Claimant was still in the employment of the Defendants. Counsel also submitted that evidence which is not challenged or discredited should be relied on if such is adduced to establish a relevant fact, as in the instant case. As stated in CBN V. OKOJIE (2015) (AII FWLR Part 807 Page 478 at 501 Para F-G.

72.                        Counsel refers to Defendants paragraphs 8.1,18 to 8.1.20 of its address where it was argued that since the Claimant claim is not founded on wrongful termination, the Claimant have accepted that exhibit D2 terminated Claimant’s employment. In response counsel submitted that the Claimant in his evidence before the court has consistently denied the purported termination of his employment and shifted the burden of proof to the Defendants. DW1 under cross examination admitted the fact that exhibit B is the Claimant’s appointment letter and that exhibit A issued to Claimant along with exhibit B, by Defendants contains the condition of service of the Claimant with the Defendants. Counsel submitted that answers obtained during cross examination on matters that are pleaded, that is, on which issues are joined, is admissible. As per OMISIORE V, AREGBESOLA (2015) 15 NWLR Part 1482 Page 1 at 281 Para D-E.

73.                        Counsel also submitted that the contention of the Defendants that exhibit A was not incorporated into Claimant’ appointment letter, exhibit B, is erroneous and misconceived, as the Claimant’s appointment or claim is not founded on collective bargaining and the cited judicial authorities are inapplicable to the facts and circumstance of the Claimant’s case. Counsel insisted that where more than a single document provides for the terms of the contract, as in the instant case, where exhibits ‘A’ & ‘B’ issued to the Claimant by the Defendants in 2011, provide for the terms of the contract of the Claimant with the Defendants, such document must be construed jointly, in order to have the total account of what the terms of the contract were. See LADIPO v. CHEVRON NIG LTD (2005) 1 NWLR (Pt. page 277 at 289 para F-H.

74.                        Counsel submitted that there is uncontradicted evidence before the Honourable court that DW1 in February, 2022 at the Defendants’ Quarry site offered to pay the Claimant less than Claimant’s accumulated salary arrears, which Claimant objected and insisted on being paid his full accumulated salary arrears. There is also evidence before the Court that the failure of the Defendants to pay Claimant’s salary from September 20215 till date subjected Claimant to frustration, hardship and suffering, which prompted Claimant to institute this suit. This evidence was never contradicted throughout the trial. Counsel submitted that the value of the Claimant’s salary if it was paid as at when due from September 2015 cannot be compared to what its value today, as the monetary value of the Naira has been seriously eroded by inflation as at today. Counsel argued that award of general damages is predicated on the discretionary power of the trial court, which is substantially a court of facts, to determine the quantum of such damages on the circumstances upon which liability is founded. In support of this view counsel relied on the case of BRITISH AIRWAYS V. ATOYEBI (2010) 14 NWLR Part 1214 Page 561.

75.                        It is submission of counsel that where a Defendant’s conduct is sufficiently oppressive, arbitrary, outrageous and vindictive showing contempt of the Claimant, as in the instant case, where the Defendants owed the Claimant salary arears from September 2015, paid other workers owed in February, 2022 but felt it can pay the Claimant less that what Claimant worked for, is condemnable and exemplary damages are usually awarded in such circumstances. This position is supported by the case of ODIBA V. AZEGE (1998) LPELR-2215 SC.

76.                        On interest counsel contended that the submission of the Defendants that post judgment interest is fixed at 10% by Order 47 Rule 7 of this court Rules is misconceived. The provision of Order 47 Rule 7 is to the that the minimum post judgment interest rate to be fixed by the Honourable Court at any material should not be less than 10%, it can certainly be more than 10%. According to counsel post judgment interest where deserved is a right. Counsel urged the court to grant the 15% sought by the Claimant. See UNITY BANK V. NWADIKE (2009) 4 NWLR (Pt.1131) 352.

77.                        Counsel urged the court to resolve issue 1, in favour of the claimant and hold that the Claimant has proved his case and is entitled to the reliefs sought in this suit.

78.                        Issue 2: Whether the 1st and 2nd defendants though distinct and separate personalities who jointly appointed and engaged the claimant to work at its(sic) community liaison officer at its(sic) quarry site at Nyagachng are not jointly and severally liable for the failure to pay the claimant salary arrears owed and other benefits as contained in the 1st defendant’s Handbook applicable to 1st and 2nd defendants’ employees.

79.                        In arguing issue 2, counsel submitted that base on the uncontradicted evidence adduced by the Claimant before the Honourable Court, the 1st and 2nd Defendants, sued as necessary parties in this suit, though separate and distinct legal personalities, are jointly and severally liable for their failure to pay the Claimant his salary arrears and other entitlement sought in this suit. There are uncontroverted and uncontradicted evidence before the Court depicting that the 2nd Defendant is a subsidiary of the 1st Defendant. DW1 under cross examination admitted the fact that the 1st and 2nd Defendants share the same Office, have the same Administrative Secretary and the same Group Managing Director. There is uncontradicted evidence before the Court that the 1st Defendant employed the Claimant as shown on exhibits A, B, C and D and assigned the Claimant to work with the 2nd Defendant at Defendants’ Quarry site at Nyagachang in Akamkpa Local Government Area, Cross River State, where claimant worked for the Defendants. Counsel contended that when documentary evidence supports oral evidence, oral evidence becomes more credible. This is so because documentary evidence serves as a hanger from which to assess oral evidence. Counsel supported this submission with the case of GBEDU V. ITIE (2020) 3 NWLR Part 1710 Page 104 at 130 Para B – C.

80.                        Counsel further argued that exhibit B, the Claimant’s letter of employment depicts and buttress the Claimant’s evidence to the effect that the Claimant was employed by the 1st Defendant and assigned to work with the 2nd Defendant, a subsidiary of the 1st Defendant. Counsel submitted that it has been held by the Court that a letter of employment is a vital document in an employment case, because it goes a long way, as is often the case, to greatly assist the Court in ascertaining the terms and conditions of service binding on the parties thereto, as in the instance case. In support of his contention counsel relied on the case of UBN V. CHINYERE (2014) 40 N.L.L.R (Pt.123) 315 CA. According to counsel both the 1st and 2nd Defendants are jointly liable for the failure to pay the Claimant’s his salary arrears and entitlements.

81.                        Counsel further submitted that the Claimant has led evidence to show that the Defendants employed the Claimant, paid the Claimant salary last for the Month of August 2015, though the Defendants have purportedly alleged to had paid Claimant salary arrears and entitlement, but Defendants have woefully failed to place any cogent and credible evidence before the Honourable Court to substantiate and establish the alleged payment of Claimants accumulated salary arrears and entitlement. Counsel submitted that the burden of proof is on him who asserts the affirmative of the issue and not upon the party who denies it. On this proposition counsel relied on the case of OMISIORE V. AREGBESOLA 2015 15 NWLR Part 1482 Page 1 at 273 Para A-D.

82.                        It is submission of counsel that the Defendants’ argument, as contained in paragraphs 7.1.1 to 7.1.8 of the address, contending that the 1st Defendant was wrongly joined and that the 1st Defendant is not a proper party in this suit and that the suit ought to be struck out, is misconceived and unfounded, and the judicial authorities sought to be relied upon are inapplicable to the facts and circumstance of this case and should be discountenance. Counsel submitted that the case of UBA PLC V. B.T.L INDUSTRIES LTD (2004) 18 NWLR (Pt.404) 180 and that of MAINSTREET BANK LTD V. CHACHINE (2015) 11 NWLR (Pt.1471) 479 Page 526 Para B support the Claimant’s case as exhibits A, B, C, D, R and U undoubtedly establish the fact that there is a contract of employment between the Claimant and the 1st Defendant and that the Claimant rightly sued the 1st Defendant in this suit.

83.                        In concluding his submission counsel urged the court to find and hold that the Claimant has proved that he was employed by the Defendants and issued with the appointment letter and condition of service in 2011 and not 2015 and that the Claimant’s appointment was not subject to periodic review and Claimant rightly sued the 1st Defendant as a proper party in this suit and grant all the sought in this suit.

REPLY BY THE DEFENDANTS TO THE CLAIMANT’S FINAL WRITTEN ADDRESS.

84.                        In reply to the Claimant’s paragraphs 4.1 to 4.4 of his final Address where it was argued that DW1 having admitted under cross examination that exhibits A and B were issued to the Claimant by the 1st Defendant and the Claimant has sufficiently proved that the terms stated in exhibits A and B were incorporated into the claimants employment, as a result the terms A and B were applicable to Claimants employment and the Claimant was entitled to benefit from clause 5.6 of exhibit A without further proof. It was argued by counsel for the defendants that the argument of the claimant’s counsel is gravely misconceived and misleading. Counsel urged the court to discountenance the said submission.

85.                        It was submitted by counsel for the Defendants that the purported admission is not helpful to the case of the Claimant particularly when the condition precedent stated in clause 5.6 of exhibit A that an employee (in this case the Claimant) employment must be confirmed for such employee to enjoy the benefits of clause 5.6 of exhibit A. The Claimant led no evidence nor tendered any document to establish the confirmation of his employment by the 1st Defendant.

86.                        Counsel continued his submission that the law is trite where a claimant attempts to enforce a condition contained in a contract, the claimant must lead evidence to show that he has satisfied the conditions contained in the said contract. To support his contention counsel relied the case of KAWU v. YUSUFARI {2022) LPELR-58050(CA); FUNTAJI  SOH LTD V GTB PLC (2022) LPELR-58143. Counsel also, refers to the case of OGUNDALU v. MAOOB (2015) LPELR-24458(SC) (Pp 46 -Paras A – B), where the Apex court affirmed this principle when it held as follows:-

“A person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him’’. Per KUMAI BAYANG AKA’AHS, JSC.

87.                        Counsel also submitted that the Claimant also in paragraphs 4.5 to 4.19 of his Final Address argued that having denied receiving exhibits D2 (Claimant’s letter of termination) the burden of proving that the claimant’s employment with the 1st Defendant was terminated shifted to the 1st Defendant and the 1st Defendant having failed to discharge this burden of proof was fatal to the case of the Defendants. In response counsel for the Defendants submitted that the argument of the Claimant’s counsel is misconceived and should be discountenanced by this Honourable court.

88.                        According to counsel, the moot point raised in the issue of the denial of the receipt of the letter of termination (Exhibit D2) will require no further proof if the Claimant was able to demonstrate that he actually worked for the 1st Defendant for the said periods claimed. However, the Claimant failed to establish this fact and it is fatal to his case as it is trite law that an employee who claims arrears of salary must prove the work that he did to be entitled to the arrears of salary claimed. In support of this proposition counsel placed reliance on the case of HONKA SAWMILL (NIG.) LTD V. HOFF (1992) 4 NWLR (Pt. 238) 673 CA.

89.                        Counsel further argued that for the claimant to submit that the onus of proof shifted to the Defendants to show that the Claimants employment was terminated by the mere denial of exhibit D2, amounts to a misplacement of the burden of proof. To support his contention counsel relied on the case of PDP V EKEAGBARA & ORS (2016) LPELR-40849(CA) (PP 37 – 38 PARAS F – E). Counsel contended that the effect of the misplacement of the burden of proof at this stage of the proceedings is that the Claimant failed to prove his case and this Honourable Court is entitled to dismiss claimant’s claim for arrears of salary.

90.                        In concluding his submission counsel urged the court to dismiss this suit in its entirety.

COURT’S DECISION:

91.                        I have considered the processes filed in this suit by the parties, the evidence lad, as well as the written and oral submissions of counsel for the parties.

92.                        The claimant’s claim against the defendant primarily is for payment of arrears of salary in the sum of N5,583,450.00, payment of terminal benefit in the sum of N770,000.00 for over 11 years-service rendered to the defendants, N5,000,000.00 damages, N1,000,000.00 cost and 15% interest on the judgment sum until final liquidation.

93.                        The law is trite that the parties as well as the court are bound by the reliefs put forward by the parties. The duty of the court is to determine the case in line with the evidence and law applicable to the facts before the court made available by the parties. The court must confine itself within the reliefs sought and no more. See EKPENYOUNG V. NYONG (1975) 2 SC 71; OBIOMA V OLOMU (1978) 2 SC 1; ODOFIN V. AGU (1992) NWLR (Pt.229) 350. To derail from the reliefs sought will violates the rights of the parties to fair hearing which is fundamental to due trial and it amounts to acting without jurisdiction. It is settled that any step taken or pronouncement made without jurisdiction amounts to a nullity. See OHAKIM V AGBASO (2010) 19 NWLR (Pt. 1226) 172 S.C.

94.                        The defendants on their part have admitted the claimant being employed by the 1st defendant but, denied the claim of the claimant and states that in 2015, the claimant’s employment was converted to fixed term for one year renewable. The defendants have alleged that claimant’s employment was terminated in 2016 and all his entitlement paid as per the letter of termination. The defendants have further stated that the claimant cannot sue 1st and 2nd defendants jointly as they are separate legal entities. According to the defendants, the claimant’s employment having been terminated and terminal benefit paid to him as per exhibit D2, letter of termination, he is not entitled to claim for salary arrears till date. Counsel for the defendants has argued that the claimant cannot claim terminal benefit since he is not contesting validity of his termination. Accordingly, counsel submitted that by claiming terminal benefit the claimant has admitted termination of his employment in 2016. The defendants have also alleged that the claimant has not performed any work for them, since the termination of his employment for him to claim any arrears of unpaid salary.

95.                        In response to the defence of the defendants, the claimant maintained that vide exhibits A, B and C, he can sue defendants jointly because when he was employed by the 1st defendant, he was posted to work for 2nd defendant. On termination he denied receipt or being served of any termination letter in 2016, he alleged the said purported letter of termination was procured in the course of proceeding to avoid liability.

96.                        The defendants have raised propriety of claimant suing the 1st and 2nd defendants jointly when the two parties are by law separate entities. I have examined the pleadings of the parties on this issue vis-à-vis the submissions of counsel in their final written addresses. What is clear from the pleadings and evidence as well as exhibits B, C, D, G, H, J, K, M, N, O, S, T, U and D1, is that the claimant was employed by the 1st defendant to serve as Community Liaison Officer of the 2nd defendant the subsidiary of the 1st defendant.

97.                        From the exhibits refers to above there is no doubt there is a legal connection and shared responsibility between the two entities concerning employment of the claimant in that claimant was employed by 1st defendant but the services for the employment is to be rendered to the 2nd defendant, this connection has rendered both the 1st and 2nd defendant suable in event of any breach of contract of service. This becomes apparent when there is evidence establishing of intermingling of operations, common control and more importantly 2nd defendant is the beneficiary of the services being rendered by the claimant i.e. interfacing with community and involvement in settlement of disputes between the community and the defendants. The intermingling of operation and common control can be seen with exhibits I, J, S, T and D1. In exhibit D1 the 1st defendant notified the Nyagachang Village Council where the 2nd defendant is situated and carry out business, of suspension of operation, ordinarily this should have been done by the 2nd defendant but was done by the 1st defendant.

98.                        There is also evidence to the effect that the two entities share same office, Secretary and General Manager. This goes to show that the operations of the two entities were fused together. This has brought this case within the exception to the doctrine of privity of contract.

99.                        The realities in this case point to the fact that both parties should be liable as the 2nd defendant is beneficiary of claimant’s service though his employment was by the 1st defendant in the circumstances there is no basis for the defendants to urged this court to strike out name of 1st defendant from this suit when it was the 1st defendant that actually employed the claimant and from the exhibits tendered and admitted in evidence the 1st defendant is the one running the affairs of the 2nd defendant. Therefore, both are suable as in this suit.

100.                   I shall now consider reliefs i and iv, together because they deal with issue of payment of arrears of salary. In these reliefs the claimant wants this court to declare that the claimant as employee of the defendants is entitled to all his outstanding Monthly salaries owed him by the Defendants from the Month of September 2015 till date and to pay the Claimant the sum of ?5,583,450.00 (five million five hundred and eighty-three thousand Naira six hundred Naira) as salary from the Month of September 2015 to January, 2023.

101.                   It is trite law that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist. See Section 131 (1) of the Evidence Act, 2011. In the case of ENYI V. BENUE STATE JUDICIAL SERVICE COMMISSION & ORS (2021) LPELR-54437 (CA), it was held thus: "The position of law remains settled that the burden is on the party that asserts the existence of a particular thing or situation to prove the same and he who asserts must prove..."

102.                   From the above it is clear that the law imposed initial burden of proof on the claimant. then, If claimant discharged the burden, the burden will then shift on to the defendants to prove their defence or their contrary assertion. See section 134 of the Evidence Act, as amended.

103.                   In this case, the claimant who want the court to grant him arrears of salary has the burden of proving entitlement to the salary and the quantum he is entitled to this is because claim for salary arrears is within the realm of special damages which must be specifically pleaded and strictly proved. The case of Honika Sawmill (Nig.) Ltd. v. Hoff (1992) 4 NWLR (Pt. 238) 673, has provided guid to be followed in ascertaining entitlement to payment of salary, in the case it was held:-

‘’As between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid to the employee was. (P.679, paras. C-D)

104.                   In the case at hand, the claimant insisted he is an employee of the defendants to dates, performing his duties and is entitled to salary from September, 2015 when the defendants ceased to pay him salary to date. The claimant in proving his case relied on exhibits A – U, as proof of his employment with the defendants.

105.                   The defendants on their parts are claiming that the claimant was employed as Community Liaison Officer at the request and recommendation of the Nyagachang Village council in 2011. The appointment was for a period of one year and subject to renewal upon termination. The defendants stated that they will rely on the letter dated 17/9/2015, where the claimant’s contract was renewed. The letter of 17/9/2015, was one of the documents frontloaded by the defendants in their defence filed on 28/3/2023, but they failed to tender it in evidence. However, a photocopy of the said letter was tendered through DW1 under cross examination, it was admitted in evidence and marked as exhibit D3. The defendants further stated that the claimant‘s contract of employment was periodically renewed until 2016, when his employment was terminated. Exhibit D2, letter dated 30/8/2016, was tendered in evidence to show that claimant’s employment was terminated by the 2nd defendants. They also stated that 2nd defendant closed down its quarry site on 19/8/2016 as a result of business exigencies and harsh economic environment. The defendants maintained that the claimant employment having been properly terminated and his entitlement having been paid in full is not owed any money whatsoever by the defendants. One of the conditions in the agreement between defendants and joint quarrying communities, to the effect that every quarry operator within the joint quarrying communities, must employ a community liaison officer. The claimant also denied his employment being for one year and his employment never terminated. An attempt to put claimant on a fixed term was resisted and condemned by the Nyagachan Village Council by a letter of 2/11/2015, exhibit T. The said letter of 17/9/2016 was withdrawn by the 2nd defendant and claimant continued working as Community Liaison Officer of the 2nd defendant till date. To support his case the claimant tendered in evidence exhibit K, letter from the village community. The claimant further stated that he was never served with the letter of termination and the letter of purported contract appointment. Was withdrawn.  Claimant further stated that the 2nd defendant never closed down quarry site at Njygachang, but temporarily suspended operations and retained core staff including the claimant, chief security, accountant and human resources Manager.

106.                   After careful consideration of the facts and evidence in this case from both parties and the exhibits tendered and admitted in evidence, I am unable to believe the line of story as given by the defendants in their amended defence that the claimant’s employment was for a period of one year and subject to renewal upon termination. The reason being that exhibit D3, which the defendants are placing reliance to support their case is not capable of supporting their case. The said letter of fixed term was said to had been issued in September, 2015. The claimant has denied being served with the said letter. The denial by the claimant of receipt of exhibit D3 has shifted the burden of proving that the said letter was indeed served on the claimant to the defendants. However, the defendants have not adduced any iota of evidence showing that the claimant was indeed served with exhibit D3.

107.                   Even if there is service, the letter by itself requires the claimant to accept it by signing the acceptance attached to the letter and returned same to the defendants. Therefore, the defendants who have the custody of the acceptance of the offer must produce it before the court for them to establish contractual relationship between the claimant and the defendants. Their failure to produce acceptance of the said offer of fixed terms and evidence of service on the claimant of the said offer of employment, clearly goes to show that there was no contractual relationship established between the claim ant and the defendant in respect of exhibit D3. In the circumstances I discountenanced the position of the defendants that the claimant was employed as per exhibit D3.

108.                   On shifting of burden of proof of service of exhibit D3 to the defendants I placed reliance on the case of OBAYAN V UNILORIN (2018), where the apex court in unambiguous term stated that the denial of service of communication on the appellant in that case has shifted the burden to the issuer of the communication to prove service. This case is authority that burden shift to claimant in this case. I therefore, discountenance submission of counsel for the defendant insisting that burden is on the claimant and not on the defendant who asserted effecting service.

109.                   The defendants are also placing reliance on exhibit D2, to show that claimant’s employment was terminated with effect from 1/9/2016 and by the said letter of termination claimant had been paid all his entitlement. Having found that there is no contractual relationship established between claimant and defendants as per exhibit D3, then there is nothing to be terminated by exhibit D2. I quit agree with the counsel for the claimant that this letter was a concoction aimed at denying claimant of any entitlement if any.

110.                   Assuming but without conceding that exhibit D2, is a genuine letter of termination, the claimant has denied being notified of the termination. He has also denied being paid any entitlement as per exhibit D2, with the denial of service and payment, the onus is on the defendants to prove that the claimant was actually served or notified of his termination. They also have a duty to prove that payment of the said purported entitlement as contained in exhibit D2. The defendants’ failure to prove service of termination and failure to prove payment of what was contained in the letter as claimant’s entitle is fatal to the defendants’ defence. See DICKSON D. BOLOU v. FEDERAL COLLEGE OF EDUCATION, OBUDU & ANOR (2019) LPELR-47465(CA).

111.                   Now, having found that the defendants have failed to establish their defence on arrears of salary, I shall determine whether claimant by his pleadings and evidence has succeeded in proving entitlement to payment of arrears of salary from September, 2015 to January, 2023, when this suit was instituted.

112.                   Vide exhibits B, C, D, Q, R and U, the claimant was employed by the 1st defendant as community Liaison Officer of the 2nd defendant, he has as well vide these exhibits established the stipulated salary on which he was employed i.e. N70,000.00 (seventy thousand Naira). What now remain is to see if the claimant has proved that he worked for the defendants for the period of claim i.e. from September, 2015 to January, 2023, a period of 89 months.

113.                   The claimant has tendered exhibits F, E, G, H, I, J and S, as proof of work he has done for the defendant. The defendants on their part tendered in evidence exhibit D1, showing suspension of operation with effect from 19/8/2016. There is an acknowledgement at the foot of the letter indicating that the letter was received by the village secretary on 27/8/216.

114.                   The claimant has stated that the defendants only suspended operations and retained services of its core personnel which included the claimant, personnel manager, chief security officer, accountant till date. The claimant stated that letter of 19/8/2016, exhibit D1, was procured only for the purpose of this suit. The claimant further stated that in February, 2022, Mr. Gbenger Jegede came to the quarry site and met with claimant and CW2 and even sent N50,000 to account of CW2. The purpose of the meeting was not stated.

115.                   It is clear apart from exhibit S, all the other documents i.e. exhibits F, E, G, H, I and J, did not fall within the period of claim by the claimant as those exhibits covered period from 2011, 2012 and 2013, only. For exhibit S it is not capable of establishing work done by the claimant for the defendants. The said exhibit is letter of authority from the village Head to the to the Manager of the 1st defendant authorising him to collect community levies from drivers loading at the 2nd defendant’s quarry and hand over same to the claimant for onward transmission to the community. This clearly shows that it is not for any work done for the defendants. If there is any work done as per exhibit S by the claimant, it was done for and on behalf of the community and not for the defendants. Another issue with exhibit S is that it is original not photocopy, the letter was not addressed to the claimant so one wonders how the claimant came into possession of the said letter. In the circumstances and in view of the fact that letter was snot coming from appropriate custody I will not attach any evidential value to it, as it is a worthless piece of paper deserving its abode in the dustbin.

116.                   With this finding there is no concrete evidence apart from ipse dixit of the claimant and CW2, called by the claimant to suggest claimant served the defendants up to February, 2022.

117.                   Let me say straight away that the evidence of CW2 is not helpful to the case of the claimant. CW2 stated in clear terms that in February, 2022, the claimant, Mr. Gbenger Jegede and himself met at 2nd defendant’s quarry site at Nyagachang in Akamkpa Local Government area of Cross River State, where at the meeting Mr. Gbenger Jegede sent the sum of N50,000.00 to CW2, through Bank Transfer. Both Cw1 and Cw2, have stated in their pleadings and witness statement on oath that they will rely on the bank statement of account of CW2, but that bank statement was never tendered in evidence by either CW1 or CW2.

118.                   According to CW2, it was after meeting with Mr Gbenger Jegede in February, 2022, that the claimant informed him that Mr Jegede offered to pay him less than his accumulated salary arrears, but refused and insisted on being paid his full salary arrears, as the defendant’s community liaison officer. This assertion of CW2 goes to show that it was not at the meeting with Mr. Gbenger Jegede, the stated or offer to the claimant to pay part of his salary as full pay.

119.                   The claimant in his evidence stated that in February, 2022, 2nd defendant’s site manager, Gbenger Jegede, sent the 2nd defendant’s Chief security officer to call the claimant to come to 2nd defendant’s site at Nyagachang and offered claimant to accept to receive less than his accumulated salary arrears, but he rejected attempt to shot change him. He consulted his solicitors to write to defendants’ letter of demand for payment of his salary arrears of salary. The letters are exhibits K, M and O.

120.                   Let me say here that I have evaluated the evidence of CW1 and that of CW2 and their evidence under cross examination. It clear to me that the holding of meeting as narrated by the CW1 and CW2 with Mr. Gbenger Jegede cannot be proof that the claimant has worked for the defendants up to February, 2022, the reason being that the claimant in his evidence has unequivocally stated that Mr. Gbenger Jegede, site manager, sent the 2nd defendant’s chief security officer to call the claimant to come to 2nd defendant’s site at Nyagachjang and offered him to accept/receive less than his accumulated salary, but he rejected the attempt. From this evidence it is clear that claimant was not at his work place working, thus why Mr. Gbenger Jegede has to sent for him to come for meeting, This. goes to show that claimant did not work for the defendants up to February, 2022, not to talk of up to January, 2023 or till date.

121.                   After examining exhibit D1 and appraisal of all the evidence before the court, I come to the conclusion that the claim will only be entitled to payment of salary from September, 2015 to 27/8/2016, when exhibit D1 was received by the community. I have no doubt in my mind that the claimant is aware of the suspension of the operation of the defendants as per exhibit D1. And there is nothing before me to suggest that claimant has been going to work up to date. In fact under cross examination claimant has stated that the last time he went to office was in 2022 i.e. in February, 2022 for a meeting with Mr. Gbenger Jegede and CW2.

122.                   In view of the above findings, I have no doubt in my mind that the claimant is only entitled to arrears of salary from September, 2015 to 27/8/2016, which is a period of twelve (12) months. Going by exhibit u, the take home salary of the claimant is the sum of N63,450.00 (Sixty-three Thousand Four Hundred and Fifty Naira) times twelve, the total amount claimant is entitled to is the sum of N761,400.00. I so

123.                   Now, reliefs ii and iii, are for payment of N770,000.00 (Seven hundred and Seventy thousand Naira) being 11 months gross salary as terminal benefit for having served the defendants for more than 11 years now.

124.                   The claim for terminal benefits is often tied to the cessation of employment through termination, resignation, or retirement. In this case the claimant insisted that he is still a staff of the defendants since his employment has not been formerly terminated. This presented a potential contradiction for claiming terminal benefits, which are typically payable upon the termination or retirement from service.

125.                   However, by claiming terminal benefit, the claimant seems to have considered his employment as having coming to an end and by so he cannot be heard to assert entitlement to salary up to date.

126.                   I have already found that his employment was not terminated as per exhibit D3, this means there was no formal termination. The mere fact that there is no formal termination does not mean that termination cannot be inferred from available facts. Given the facts and circumstances of this case and having regards to exhibit D1, I have no doubt claimant’s employment has come to an end with effect from 27/8/20126.

127.                   In view of the foregoing the period the claimant served the defendants is from 1/5/2011 to 27/8/2016, which is five (5) years Four (4) Months. According to clause 5.6 of exhibit A, an employee that served for five years will be entitled to 5 months gross salary. This means the claimant will be paid the sum of N350,000.00 as five months gross salary at N70,000.00 per months.

128.                   Let me say here that vide appendix 2, page 36 of exhibit A, the conditions of service contained in exhibit A are applicable to both employees of the 1st and 2nd defendants, they have same conditions of service.

129.                   Relief v. is for damages in the sum of N5,000,000.00 the claimant having been granted his entitlements as per arrears of salary and terminal benefit is not entitled to damages as he has been adequately compensation by the awards made herein.

130.                   Relief vi. Is for N1,000,000.00 cost, this is granted at the discretion of the court having regards to facts and evidence. In this case the claimant has not tendered any evidence in proof of expenditure of N1,000,000.00. since cost is at discretion of the court, I hereby awards n300,000,00 against the defendants in favour of the claimant.

131.                   For avoidance of doubt the order of the court is as follows:-

a.      The claimant is entitled to the sum of N761,400.00 as arrears of salary from September, 2015 to 27/8/2016. The defendants are hereby ordered to pay the claimant the said sum as arrears of salary.

b.     The claimant is entitled to terminal benefit as provided in exhibit A i.e. five (5) months gross salary for five years-service. The defendants are hereby ordered to pay the sum of N350,000.00 (Three Hundred and Fifty thousand naira), as five months gross salary at N70,000.00 per months, as his terminal benefits.

c.      The claimant is entitled to cost assess in the sum of (Five Hundred Thousand naira) N300,000.00 only. The defendants are hereby ordered to pay the claimant N300,000.00 cost.

d.     All monetary aspects of this judgment shall be settled within 30 days failing which interest of 10% per annum shall apply.

132.                   Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge.

REPRESENTATIVE

Victor Okon, Esq; for the claimant

Onome Okodiya, Esq; for the defendants.