IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: MONDAY 6^TH JULY, 2026

SUIT NO: NICN/KD/11/2024

BETWEEN:

ENGR. SHEHU A. KARAYE          …………………………………….CLAIMANT

AND 

ELECTRICITY METER COMPANY NIG. PLC…………….DEFENDANT

REPRESENTATION

Munir S. Ishaq Esq for the Defendant

Claimant not represented

JUDGMENT

INTRODUCTION 

The Claimant commenced this suit by the Complaint filed on the 12^th of March 2024 under Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules. The Claimant, pursuant to the order granted on the 18^th of July 2024, filed an Amended Complaint on the 18^th of March 2024 but deemed filed and served on the 18^th of June 2024, whereat the Claimant claims against the Defendant the following reliefs: 

 

 

The Claimant predicated his claims on the Amended Statement of Fact and Witness Statement on Oath filed on the 6^th of June 2024, the Consequential Reply and Further Witness Statement on Oath filed on the 5^th of December 2024.

The Defendant based its defence on the Amended Statement of Defence and the Witnesses’ Statement on Oath filed on the 20^th of November 2024, wherein the Defendant counterclaims and seeks the following reliefs as follows:

 

 

At the plenary hearing on the 11^th of December 2024, the Claimant called his first witness. The Claimant, who testified for himself hereinafter referred to as CW1, identified his Depositions on Oath filed on the 6^th of June 2024, and Further Witness Statement on Oath filed on the 5^th of December 2024, and adopted the same as his evidence in support of his case. CW1 thereafter tendered the following documents and marked as follows:

1. Letter of employment dated the 31^st of January 1995; admitted and marked Exhibit C1.
2. Appointment letter as General Manager/Chief Executive dated the 15^th of May 1995; admitted and marked Exhibit C2.
3. Confirmation of appointment dated the 26^th of September 1995; admitted and marked Exhibit C3.
4. Elevation to the post of managing director/chief executive dated the 10^th of March 1998; admitted and marked Exhibit C4.
5. Extension of appointment as the managing director/CE dated the 12^th of December 2005; admitted and marked Exhibit C5.
6. Re: Extension of appointment of the managing director/CE dated 14^th of December 2005; admitted and marked Exhibit C6.
7. Re: Extension of appointment of the managing director/CE dated 16^th of June 2008; admitted and marked Exhibit C7.
8. Resignation of appointment dated the 1^st of December 2008; admitted and marked Exhibit C8.
9. Acceptance of resignation dated the 17^th of December 2008; admitted and marked Exhibit C9.
10. Application for re-appointment dated the 12^th of December 2008; admitted and marked Exhibit C10.
11. Re-appointment as the managing director/CE dated the 2^nd of January 2009; admitted and marked Exhibit C11.
12. Resignation of appointment dated the 25^th of July 2022; admitted and marked Exhibit C12.
13. Outstanding salaries/allowances dated the 28^th of September 2022; admitted and marked Exhibit C13.
14. Pay slip July, August, September and October 2019; admitted and marked Exhibit C14.
15.  Employee Handbook and Conditions of Employment; admitted and marked Exhibit C15.
16. Negotiated agreement dated the 10^th of November 2006; admitted and marked Exhibit C16.
17. Re: National Collective Agreement of Salaries and Allowances dated the 18^th of July 2007; admitted and marked Exhibit C17A.
18. Demand for Engnr. Shehu A. Karaye’s Entitlement dated the 21^st of March 2023; admitted and marked Exhibit C18.
19. Memorandum of understanding between Emcon Plc and Stata Energy Ltd; admitted and marked Exhibit C19.
20. Proposal for Prepaid Meter Factory Establishment 2021; admitted and marked Exhibit C20.
21. Bundle of Letters dated different dates; admitted and marked Exhibit C21.
22. Resignation of appointment dated the 22^nd of September 2022; admitted and marked Exhibit C22.
23. Re: Technical and Commercial Cooperation between Mahashakti Energy Ltd, India and Emcon Plc, Nigeria, dated the 8^th of December 2021; admitted and marked Exhibit C24.
24. Document dated the 19^th of December 2012; admitted and marked Exhibit C25.
25. Tenancy agreement between Emcon and Alhaji Dauda Musa dated the 1^st of December 2022; admitted and marked Exhibit C26.
26. Leave bonus for MD/CE of 2015; admitted and marked Exhibit C28.

On the 24^th of March 2024, the Claimant called his second witness. Mustapha Mohammed, hereinafter referred to as CW2, identified his Depositions on Oath filed on the 7^th of March 2025, and adopted the same as his evidence in support of the case. Of the Claimant. CW2 thereafter tendered the following document and marked as follows:

On the 2^nd of December 2025, the Defendant opened its defence. Shehu Mohammed Dorayi, hereinafter referred to as DW1, testified for the Defendant. DW1 identified his Statement on Oath filed on the 1^st of December 2025 and adopted the same as his evidence in support of the defence of the Defendant. 

On the 16^th of February 2026, the Defendant called its second witness. Alhaji Dalhatu Gwarzo, hereinafter referred to as DW2, testified for the Defendant. DW2 identified his Statement on Oath filed on the 11^th of December 2024 and adopted the same as his evidence in support of the defence of the Defendant. DW2 thereafter tendered the following documents as follows: 

1. Document titled ABC 795 AJ Honda Accord; admitted and marked Exhibits DWA, DWB and DWC.
2. Document titled EM 368 ABC Peugeot 406; admitted and marked Exhibits DWD, DWE, and DWF.
3. Document titled ABC 874 PH Sienna Toyota; admitted and marked Exhibits DWG, DWH and DWI.
4. Resignation of appointment dated 25^th of July 2022; admitted and marked Exhibit DWJ.
5. Acceptance of Resignation dated the 17^th of December 2008; admitted and marked Exhibit DWK.
6. Re: Appointment of the Managing Director/CE dated the 2^nd of February 2009; admitted and marked Exhibit DWL.
7. Employee Handbook and Conditions of Employment; admitted and marked Exhibit DWM.

After the close of the hearing of the suit, on the 27^th of April 2026, the matter came up for the adoption of the Final Written Addresses filed by Counsel. Learned Counsel for the Defendant, Munir S. Ishaq, Esq, identified and adopted his Final Written address filed on the 30^th of March 2026 and Reply on Point of Law filed on the 27^th of April 2026 as his legal submission in aid of the case of the Defendant and urged this Court to dismiss this suit and grant the reliefs sought by the Defendant. 

Counsel for the Claimant, U. F. Abdullatif, Esq, identified and adopted his Final Written Address filed on the 16^th of April 2026 as his legal submission in aid of the case of the Claimant while urging this Court to grant the claim of the Claimant and dismiss the counterclaim.

CASE OF THE CLAIMANT

The case of the Claimant is that the Claimant, an Electrical Engineer, was previously an employee of the defendant from the 31^st of January 1995 till the 31^st of July 2022 when the Claimant resigned as the Managing Director/CEO of the Defendant's company by letter dated the 25^th of July 2022. By a letter of employment letter dated 31/1/1995 and titled "Offer of Appointment" the Defendant approved the appointment of the Claimant as acting General Manager/Chief Executive of the Defendant's company. Thereafter, the Board ratified the appointment by letter dated 15/5/1995 and titled "Appointment as General Manager/Chief Executive" the Defendant appointed the Claimant as a substantive General Manager/Chief Executive having been "greatly impressed with the management leadership of the Defendant under the Claimant.

By letter dated the 10^th of March, 1998 and titled "Elevation to the Post of Managing Director/Chief Executive", the Claimant was elevated to the post of Managing Director/Chief Executive; when the Company was privatized in the year 2004, the new Shareholder decided to retain the Claimant as the Managing Director/Chief Executive thereby extended his appointment by letter dated 12/12/2005 which was accepted vide letter dated 14/12/2005 titled "Re: Extension of Appointment of the Managing Director/CE". In the year 2008, the appointment was again extended by letter dated 16/06/2008 and titled "Extension of Appointment of the Managing Director/CE". The Claimant however resigned the appointment as the Managing Director/Chief Executive by letter dated 01/12/2008 and another letter dated 17/12/2008 titled "Acceptance of Resignation". 

At the direction of the Defendant, the Claimant applied by a letter dated 12/12/2008 and titled "Application for Re-Appointment" for re-appointment as Managing Director/CE of the Defendant and same was endorsed as "approved". The Chairman Board of Directors later wrote a letter dated 2/2/2009 and titled "Re-Appointment of the Managing Directorate/CE" re-appointing the Claimant as the Managing Director/Chief Executive with effect from the 1^st of March, 2009 till further notice. The Claimant finally resigned the employment and the Defendant accepted same by letter dated 25/7/2022 indicating that the resignation takes effect from the 31^st of July, 2022. 

Sequel to the resignation, the Defendant failed and/or neglected to pay the benefits, entitlement etc. due to the Claimant. The Claimant further stated that, by letter dated the 10^th of March, 1998 titled "Elevation to the Post of Managing Director/Chief Executive" he is entitled to the following: Salary of N 250,000 per annum; entertainment allowance of N 20,000 per month; an annual leave bonus made up of a business class return air ticket to London or equivalent; and estacode allowance of US $3,000.00 for the trip and “with this new position your expenditure approval limit at a time is now N500,000.00 (Five Hundred Thousand Naira Only)."

However, the unpaid Salaries & Allowances from November 2019 to July 2022 = 33 months x N193,779.59 (Based on Last Pay Slip of October, 2019) amounting to the total sum of N6, 394,726.47. Annual Leave Bonus for years 2017, 2018, 2019, 2020, 2021 and 2022. Business class return air ticket to London or equivalent at the rate of N6,500,000.00 for 6 years i.e N39,000,000.00. Estacode Allowance of US $3,000 for the trip for 6 year =$18,000.00

By Articles 12 & Appendix "A" of the Defendant's "Employee's handbook and condition of employment" issued by the Defendant to the Claimant also governing the contract of employment between the parties, the Claimant is equally entitled to annual leave allowance. All Senior Staff shall be entitled to annual leave allowance at the rate of 100% of Basic Monthly Salary.

Annual Leave Allowance (Article 12) & Appendix A of the Employees Handbook in the sum of 100% of Basic Monthly Salary= N193,779.59 for the year 2017 - 2022 (6 years) totaling N1,162,677.54.

Any senior staff whose appointment ends except on summary dismissal receive a service gratuity. 15 Years and Above: 5 weeks basic pay for every completed year of service. Gratuity Payment which is 5 Weeks basic pay for being N133,308.02 (made up of 4 weeks and N426,661.60 for 1-week basic pay) for every completed year of service being 27 years of service totaling = N3,599,316.68

Ad-hoc Assignments (Article 9) after resignation from office but from August, 2022-May, 2024 at N1,500,000.00 per annum totaling =N3,000,000.00.

By both letters dated the 10^th of March, 1998 on expenditure and/or, the Negotiated Agreement between "The precision, Electrical and related Equipment Employers Association of Nigeria (Perean) and Steel and Engineering Worker's Union of Nigeria (Sewun) Precision, Electrical and Related Equipment Workers' Sector entered on the 10^th of Nov, 2006 and affirmed by the Defendant by letters dated 29-03- 2007 and 22-06-2007 both titled Re: National Collective Agreement on Salaries & Allowances as well as the Defendant's Chairman's letter dated the 18^th of June,2007; the claimant is entitled to several allowances set out therein under the title "Management Staff summary. In consequence, the claimant is entitled to the following: (backed up by various vouchers on Monthly claims of the MD/CEO (2019-2022) which claims have been reduced to a schedule totaling N4,600,773.00. 

The totality of the claim of the Claimant is in the sum of N57,757,493.7 as well as Estacode Allowance of $18,000.00.

The failure to pay the sum in 2022 has greatly affected the monetary value of the sum claimed due to demanding currency value of money in Nigeria and the Defendant has been engaging in commercial activities, trading with the Claimant's entitlement.

DEFENCE OF THE DEFENDANT

The Defendant stated that upon the privatization of the Power Holding Company and monumental shift from the demand of Analogue Electricity Metres to the Digital Prepaid Metres, the Defendant's production was negatively affected. The Defendant's conditions deteriorated to the extent of downsizing its staff and converting most of them into contract staff. The Defendant stopped production sometime around 2014 and has been struggling to cope financially with the burden of running its operations smoothly. The Defendant made several efforts to woo foreign investors to revive its business, but to no avail. 

At all material times and during the pendency of the Claimant's appointment, the Defendant provided him with a fully furnished Particulars: accommodation, official vehicles, securities, and medical facilities. A 4-bedroom fully furnished apartment, consisting of 2 living room,1 dining area, 3-bedroom Boys Quarters with toilet and kitchen, 1security room with a toilet, and a generator room, at No. 1, Queen Elizabeth Road, GRA Zaria, Kaduna State. 3 Numbers of official vehicles with the following descriptions to wit: a Brand-New Honda Accord LX Model 2013, Gray Colour, with the Registration Number ABC 795 A J, bought at N6,825,000.00 (Six Million, Eight Hundred and Twenty-Five Naira), a Brand-New Peugeot 406 (Prestige), with the Registration Number EM 368 ABC, bought at N4,486,285.65 (Four Million, Four Hundred and Eighty-Six Thousand, Two Hundred and Eighty-Five Naira), only and a Brand-New Toyota Sienna Vehicle with the Registration Number ABC 874 PH, bought at N1,800,000.00 (One Million, Eight Hundred Thousand Naira) only. 3 Numbers of Securities attached to the Claimant's official residence at No. 1, Queen Elizabeth Road, GRA, Zaria. Retainership with Ladiya Clinic, Zaria, Saint Luks Hospital Zaria and Aloye Hospital Zaria to provide medical services to all the employees of the Defendant as specified in Article 23 of the Defendant's Employee Handbook and Conditions of Appointment.

The Defendant further stated that the appointment of the Claimant was subject to clearly defined entitlements and limits of expenditure by virtue of the new position. The resignation of the Claimant was accepted and the payment of his entitlements was conditioned upon liquidation of any outstanding indebtedness and handing over of the Defendant's properties in his possession. 

It was discovered that the Claimant was indebted to the Defendant in the sum of N13,111,285.65 (Thirteen Million, One Hundred & Eleven Thousand, Two Hundred & Eighty-Five Thousand Naira), being the value of the 3 of the Defendant's vehicle the Claimant took away. The vehicles valued in the sum of N13,111,285.65 (Thirteen Million, One Hundred & Eleven Thousand, Two Hundred & Eighty-Five Thousand Naira) only, taken away by the Claimant, do not form part of the recognised fringe benefits of the Claimant. 

The Defendant denies the Claimant’s claim of the sum of N6,394,726.47 (Six Million, Three Hundred and Ninety-Four Thousand, Seven Hundred and Twenty-Six Naira Only) as unpaid salaries and allowances from November 2019 to July 2022. The Claimant is not entitled to an annual leave bonus for 2017 to 2022 in the sum of N39,000,000.00 (Thirty-Nine Million Naira Only) for a business-class return air ticket to London or an equivalent, and an estacode allowance of $18,000.00 for 6 (six) years. The letter dated the 10^th of March 1998 alluded to by the Claimant, which elevated the Claimant to the post of Managing Director/Chief Executive, is no longer operational and has been overtaken by events.

The Claimant was elevated to the status of Managing Director/Chief Executive Officer by virtue of the aforementioned letter dated 10^th March 1998. The Claimant resigned from the services of the company with effect from 1^st December 2008, in a letter addressed to the Defendant. The Defendant accepted the resignation of the Claimant in a letter dated the 17^th of December 2008. The Claimant then reapplied for re-appointment to the position of Managing Director/Chief Executive Officer in the Defendant's company, in a letter dated the 12^th of December 2008.   Subsequently, the Defendant in a letter dated 02/02/2009 re-appointed the Claimant as the Managing Director/Chief Executive Officer on new terms and fresh conditions of service, and the re-appointment is to last till further notice. The re-appointment of the Claimant as the Managing Director in the said letter dated 02/02/2009 was made by the Defendant "in accordance with the Company's Memorandum and Articles of Association and is without prejudice to the provisions of CAMA and the Company's Conditions of Service.

That there is nothing in the Company's Memorandum and Articles of Association or the Company's Condition of Service that provides for; a business class return air ticket to London or equivalent; or an estacode allowance of US $3,000.00 for the trip. The Claimant's claim of "a business class return air ticket to London or equivalent in the sum of N39,000,000.00(Thirty Nine Million Naira Only) for 2017 to 2022 or an estacode allowance of $18,000.00 for 6 (six) years" relying on the letter dated 10^th of March 1998 elevating the Claimant to Managing Director is a matter of the past that has been overtaken by the resignation of the Claimant in 2008 and the Claimant's subsequent re-appointment as Managing Director by the Defendant in a fresh re-appointment letter dated 02/02/2009. The Claimant's non recognition and abandonment of the N250,000.00 (Two Hundred and Fifty Thousand Naira Only) per annum salary contained in the letter dated the 10^th of March 1998 attested further to the contents of the said letter been overtaken by events.

The Defendant denies the Claimant’s claim of the sum of N1,162,677.54 (One Million One Hundred and Sixty-Two Thousand, Six Hundred and Seventy-Seven Naira, Fifty-Four Kobo Only) as annual leave allowance from 2017 to 2022. The Defendant also denies the Claimant's claim of the sum of N3,599,316.68 (Three Million Five Hundred and Ninety-Nine Thousand, Three Hundred and Sixteen Naira, Sixty-Eight Kobo Only) as gratuity payment for 27years of service. The Defendant denies the Claimant's claim of the sum of N3,000,000.00 (Three Million Naira Only) as ad hoc assignments from August 2022 to May 2024. The Defendant denies the Claimant's claim of the sum of N4,600,773.00(Four Million Six Hundred Thousand, Seven Hundred and Seventy-Three Naira Only) as several allowances contained in a schedule of monthly claims. 

The schedule of monthly payments exhibited by the Claimant titled "Schedules of Monthly Claims of the MD/CE (2019-2022)” is a forged document and never emanated from the Defendant as presented by the Claimant. The Schedule of Monthly Payments bearing the Defendant's Name in the heading was produced without authorization. The Schedule was fraudulently attributed to the Defendant. The Schedule contained inaccurate and fabricated financial information, designed to deceive and mislead this Court into believing that it was a legitimate document issued by the Defendant. The Schedule was not prepared by any staff of the account department of the Defendant. Surprisingly, the document bears the name and signature of one Engr. Shehu A. Karaye, who is also the Claimant in this matter before this Honourable Court. The individual responsible for drafting and signing the Schedule did so without the proper authorization or consent from the Defendant. The Schedule was prepared and signed by the Claimant on '28/09/22', a time when the Claimant was no longer employed by the Defendant. The Claimant's resignation became effective on 31st July 2022.

LEGAL SUBMISSION OF THE CLAIMANT

Counsel for the Claimant nominated three issues for determination of this suit, to wit:

1. Whether the Claimant has proved his entitlement to the sum of N57,757,493.70 and US$18,000.00 being arrears of salaries, allowances and other entitlements as well as interest thereon.
2. Whether the Claimant can lawfully rely on the terms and benefits contained in his 1998 appointment letter and the Employees' Handbook notwithstanding his resignation in 2008 and subsequent re-appointment in 2009.

 

On issue one, Counsel for the Claimant submitted that the Claimant has proved his case on the balance of probability urging your lordship to grant the reliefs sought. The Claimant was employed by the Defendant as evidenced by Exhibit CI (Letter of Employment dated 31st January, 1995). The appointment was subject to the terms contained in Exhibit C4 and the Conditions of Service (Exhibit C15). Exhibit C4 explicitly entitles the Claimant to salary, entertainment allowance and annual leave allowance, including business class return ticket to London and estacode allowance of US$3,000.00 per annum. Exhibit C14 shows the Claimant's monthly salary as N193,779.59. 

The Claimant’s his salaries and allowances for the years 2017,2018,2019,2020, 2021 and 2022 were not paid, amounting to the sum of N6,394,726.47 (Six Million, Three Hundred and Ninety Four Thousand, Seven Hundred and Twenty Six Naira, Forty Seven Kobo).This figure was computed based on the Claimant's extant salary during the period. In proof of this claim, the Claimant adopted his Witness Statement on Oath and tendered relevant documents including the letter of appointment and payment slip.

On the annual leave allowance, the Claimant testified that he was not provided with business class return tickets to London nor paid the estacode allowance of US$3,000.00 for each of the six years (2017-2022), totaling US$18, 000.00. The Claimant called CW2, an expert witness, who testified on the current value of business class return air tickets to London for the said periods. His evidence, together with CW2's report, was admitted as Exhibit C23. Both the Claimant (CW1) and CW2 were thoroughly cross-examined, yet their evidence remained unshaken. The documents tendered in support of the claims were duly identified, admitted in evidence, and demonstrated during trial. Submitted that the Claimant has successfully discharged the burden of proof placed on him and is entitled to the reliefs sought under this issue.

The Defendant appears to have tacitly admitted the Claimant's entitlement by relying solely on an alleged alteration of the terms of appointment through a letter of re-appointment. It is trite law that a court is entitled to act on the admission of a party. Notably, the Defendant failed to tender any document or credible evidence showing that the claimed entitlements had been paid. During cross-examination, the Claimant (CW1) maintained his position and further testified that the schedule of outstanding claims (Exhibit C13) was prepared by the Defendant's Financial Accountant, and he did not forge any document. It is settled law that documentary evidence is the best evidence and speaks for itself. Oral evidence cannot be used to contradict, vary, add to, or subtract from the contents of a document. Cited Section 128(1) of the Evidence Act, 2011; Ugwuegede v. Asadu & Ors (2018) 10 NWLR (Pt. 1628) 460 (SC), Ayorinde v Kuforiji (2022) 12 NWLR (Pt. 1843) 43 (SC), Dagazu Carpets Ltd v Bokir International Co. Ltd &  Anor (2025) 8 NWLR (Pt. 1992) 271 (SC); Aina & Anor v Dada & Anor (2024) LPELR-62505 (SC); Audu v FRN (2024) LPELR-62977(SC); Amobi v Ogidi Union (Nig) & Ors (2021) LPELR-57337 (SC)

The Defendant's witnesses (DW1 and DW2) failed to tender any single document to prove payment of the Claimant's salaries and allowances. They relied only on oral testimony. In particular, DW2 admitted under cross-examination that he could not confirm whether the Claimant's entitlements had been settled. He also confirmed that the counter-claim relates only to the vehicles in the Claimant's possession and not to any alleged non-payment due to the Articles of Association of the Company. Where oral testimony is led in an attempt to contradict documentary evidence, such oral evidence will not be relied upon by the Court. Further submitted that the Defendant in paragraph 6 of its Amended Statement of Defence made a bare assertion that the Claimant exceeded his approved expenditure limits. No evidence whatsoever was led in support of this allegation. An averment in pleadings without supporting evidence is deemed abandoned. See Ajero v.Ugorji (1999) 10 NWLR (Pt. 621) 1 (SC); Ichile v. Acha (2022) LPELR-57965(CA); Eli v. Eli (2025) LPELR-82799(CA), where the Court of Appeal held that "Assertions in pleadings, however emphatic, do not amount to proof."

The Defendant's allegation that the Claimant forged Exhibit C13 or exceeded expenditure limits constitutes a criminal allegation which must be proved beyond reasonable doubt. No such proof was offered. See State v. Awara (2020) LPELR-50265(CA). The vehicles in the Claimant's possession, which form the subject of the Defendant's counter-claim, do not constitute a condition precedent to the payment of the Claimant's earned entitlements. The Claimant has always been ready and willing to return the said vehicles upon settlement of his outstanding dues. The Defendant never made any formal demand for their return prior to the institution of this suit. The Claimant has proved his case on the balance of probabilities and is entitled to judgment in his favour.

Counsel further submitted that pre-judgment interest is claimed to compensate the Claimant for the loss of use of his money and the depreciation in value occasioned by the Defendant's prolonged withholding of the accrued entitlements. The Claimant pleaded at paragraph 10 of the Amended Statement of Facts that the Defendant has been trading with his money while he suffered the effects of inflation. It is trite that pre-judgment interest may be awarded in cases involving breach of contract or where equity so demands, including situations bordering on fiduciary relationships. See Nzegu v. Delta Trust Mortgage Finance Bank Ltd (2019) LPELR-47836(CA).

Post-judgment interest, on the other hand, is meant to encourage prompt payment of the judgment debt and to preserve the value of the judgment sum against inflation. See NCS Board v. Ojukwu (2024) LPELR - 80166(CA). By Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, this Court is empowered to award interest at a rate not less than 10% per annum on any judgment sum. The Court was urged to resolved issue one in favour of the Claimant.

On issue two, Counsel for the Claimant submitted that it is trite law that an employee who has resigned is entitled to all arrears of salaries, entitlements, and allowances earned or accrued up to the effective date of resignation. See Nwafor v. Anambra State Education Commission & Ors (2017); Philip v. ADSU Mubi & Ors (2025) LPELR-81492 (CA). Entitlements to allowances and benefits are determined by the express terms of the contract of employment, the company's Conditions of Service or Staff Handbook, any applicable collective bargaining agreement, and relevant labour legislation. See Nigeria Navy & Ors v. Edeh (2025) LPELR-81946 (CA). Where a contract of employment contains specific terms, those terms must be clearly spelt out. See Keeline Investment Ltd & Anor v.Paterson Zochonis Industries Plc & Ors (2021) LPELR-54933 (CA).

The primary purpose of a letter of appointment is to clearly define the terms and conditions of service, as well as the rights and obligations of both parties under the contract of employment. It serves as the foundational document that governs the employment relationship. See Efuribe v. Ugbam & Ors (2010) LPELR-4079 (CA).  In the instant case, the letter of appointment dated the 10^th of March, 1998 (Exhibit C4) expressly sets out the Claimant's designation as Managing Director/Chief Executive and his specific entitlements. The terms and benefits contained in Exhibit C4 are further reinforced and embedded in the Employee Handbook/Conditions of Service (Exhibit C15). The Defendant has neither denied the existence nor the applicability of Exhibit C15. On the contrary, the Defendant itself tendered the document, which was admitted as Exhibit DWM. It is settled law that an employee handbook or conditions of service, once adopted by the parties and/or incorporated by reference into the letter of appointment, constitutes a binding and therein are legally binding on both the employer and the employee, and the Court will not import or imply terms outside those expressly agreed upon. The Nigerian courts have consistently affirmed this position. See F.C. Udoh & Ors v. Orthopedic Hospitals Management Board (1993) 7S CNJ (Pt. Il) 436; Regd. Trustees of Ikoyi Club 1938 v. Ayodeji (2020) LPELR-51633(CA); SPECOMILLS TEXTILES, IKEJA v. NATIONAL UNION OF TEXTILES, GARMENT AND TAILORING WORKERS OF NIGERIA (NICN); Samuel Uhuaba v. Aero Contractors Nigeria Limited (NICN, 2014).

On the issue of alleged double compensation, particularly concerning annual leave allowance, Counsel submitted that the claim is firmly rooted in the express provisions of the contract documents. Article 12 of the Employee Handbook (Exhibit C15) provides that all senior staff shall be entitled to annual leave allowance. Appendix A to the Handbook further stipulates that such allowance is 100% of basic salary. The business class return ticket to London and the estacode allowance of US$3,000.00 are distinct and additional benefits clearly stipulated in Exhibit C4 and reinforced by the Handbook.There is therefore no element of double compensation. CW2, an expert witness with experience in travel agency and ticketing, testified on oath on the 20^th of November,2024. His expert report was admitted as Exhibit C23, and his evidence was not successfully impeached under cross-examination.

Further submitted that it is beyond contention that a company, such as the Defendant, possesses the right to re-appoint or extend the appointment of its employee as Managing Director/Chief Executive Officer. However, such re-appointment or extension does not automatically constitute a fresh appointment or a novation of the existing contract of employment unless the new letter expressly so provides or the parties mutually agree to vary the terms. In the absence of any such variation or novation, the original terms and conditions remain fully binding and operative. In this case, the re-appointment letter dated 2^nd of February, 2009 (Exhibit C11) did not create a fresh appointment. On the contrary, it expressly preserved the Company's "Conditions of Service" in their entirety and introduced no fresh terms whatsoever capable of extinguishing, varying, or superseding the benefits already conferred by the 1998 appointment letter (Exhibit C4) and the Employee Handbook (Exhibit C15). The said re-appointment was therefore nothing more than a valid continuation and extension of the Claimant's subsisting contract of employment on the same terms and conditions. The 1998 benefits accordingly continued to govern the relationship without interruption.

The law is trite and well-settled that parties to a contract of employment are bound by its terms, and no party may unilaterally vary or abrogate those terms without the clear and mutual consent of the other. See Bilante International Ltd v. NDIC (2011) LPELR-781(SC); Central Bank of Nigeria v. Igwillo (2007) LPELR-835 (SC); Amodu v. Amode & Anor (1990) 5 NWLR (Pt. 150) 356 (SC); Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Mission Securities Ltd v. Kitchener & Anor (2025) LPELR-80759 (CA). Any attempt by the Defendant to suggest that the 2009 re-appointment extinguished the Claimant's vested rights is therefore legally untenable and unsupported by the documents placed before this Hon. Court.

The various extensions of the Claimant's appointment (Exhibits C5, C6,C7, C9, C10 and C11) were successive extensions of the original contract and did not operate as a novation that wiped out the accrued or continuing rights under the 1998 terms. This position is reinforced by the principle that once an employee's position is restored or continued, the financial entitlements and conditions of service attached thereto must be preserved and cannot be whimsically tampered with by the employer. See Nigerian Customs Service Board & Ors v. ljachi (2024) LPELR-62285 (CA), were the Court of Appeal emphatically held: the employer lacks the authority, right and or power to whimsically deny and deprive the Cross-Appellant of his arrears of salaries upon his reinstatement. The Court further affirmed in Raji v. OAU (2014) LPELR-22088 (CA)that re-appointment or extension of appointment does not automatically extinguish existing conditions of service unless expressly varied.

The Defendant failed to tender any single document (whether under the Companies and Allied Matters Act, the Memorandum and Articles of Association, or any revised contract) demonstrating that the benefits in Exhibit C4 or the provisions of the Employee Handbook (Exhibit C15) were ever varied or superseded at the point of re-appointment in 2009. In the absence of clear evidence of mutual variation or novation, the original terms remain binding and enforceable. Submitted that the re-appointment of 2^nd February, 2009 and the subsequent extensions constituted a mere continuation of the Claimant's contract of employment on the identical terms and conditions contained in Exhibits C4 and C15. The Defendant cannot now be heard to contend otherwise. The Claimant's entitlements to the claimed salaries, annual leave allowances (including business class tickets and estacode), and other benefits are accordingly preserved, vested, and fully enforceable before this Court. 

On issue three, submitted that it is settled law that a counter-claim is an independent action. The Defendant, as Counter-Claimant, bears the full burden of proving its counter-claim on the balance of probabilities in order to succeed. Where the Counter-Claimant fails to adduce credible and sufficient evidence in support of the reliefs sought, the counter-claim must fail and be dismissed. See: Effanga & Anor v. Effanga (2021) LPELR-55157(CA); Okpabi v. Appolus Chu (2025) LPELR-81814 (CA); Ogbonna v.A-G Imo State (1992) 1 NWLR (Pt. 229) 647; Dabup v. Kolo (1993) 9NWLR (Pt. 317) 254; Sections 131, 132 and 133 of the Evidence Act,2011. In the instant case, the Defendant counter-claimed the sum of N13,111,285.65 as alleged "excess expenditure" incurred by the Claimant beyond his approved limits, together with the value of certain vehicles allegedly in the Claimant's possession. However, the Defendant failed woefully to discharge the evidential burden placed upon it.

DW2, in his Written Statement on Oath, made vague references to "invoices, vehicle particulars and receipt of purchase" and to two letters allegedly written to the Claimant. Remarkably, the documents were tendered as Exhibit DWA-1. Under cross-examination, DW2 only stated that the originals of the vehicle documents were in the possession of the Claimant and could not link the documents to the pleadings stating how the claimant exceeded his expenditure limit through the vehicle; yet the Defendant failed to produce any secondary evidence of the said documents. No accountant, auditor, or independent valuer was called to prove either the alleged excess expenditure or the current value of the vehicles. The Exhibits were dumped before the court. See Makinde v Adekola (2022) 9 NWLR (Pt.1834) 13 (S.C)

The Defendant did not issue any formal demand letter to the Claimant for the return of the vehicles prior to the commencement of this suit. A formal demand is required before the cause of action fully accrues. See: Wema Bank v. Owosho (2018) LPELR-43857(CA); Hung v. E.C. Investment Co. Nig. Ltd (2016) LPELR-42125(CA); Kolo v. First Bank (2003) 3 NWLR (Pt. 216). The Claimant has at all material times admitted being in possession of the company vehicles but has consistently expressed his readiness and willingness to return them upon settlement of his earned entitlements. The vehicles were retained in exercise of the Claimant's right of lien over them pending payment of his outstanding dues. This Hon. Court (Lagos Division presided by Hon. Justice Ikechi Gerald Nweneka) in the case of Mr. Babatunde Komolafe v. Tomez Group Limited with suit number NICN/LA/489/2019, Judgment delivered 5^th of June, 2023 where the claimant retained a Ford Escape SUV as lien for 7 months' unpaid salaries. The court, at paragraph 55, held that non-payment of salary is wrongful, salary is "sacred," and the claimant was justified in holding the vehicle as lien. However, the court ordered return of the vehicle upon payment of the outstanding salaries plus costs. The employer's counter-claim for the vehicle's value or a new replacement was refused as inequitable.

This Hon. Court (Lagos Divison) in the case of Tamunoboma Igah v.Payporte Global Systems Limited with suit No NICN/LA/139/2018 judgment delivered the 4^th December, 2019, this court at paragraph granted an injunction restraining the employer from disturbing the claimant's exercise of lien over assets in her possession until the judgment sum (unpaid entitlements) was satisfied. The court found it an "appropriate situation" for lien exercise.

The Defendant also failed to prove how the Claimant allegedly exceeded his approved expenditure limit. The documents tendered by the Defendant as Exhibits DWA-DWI do not contain any analysis or breakdown showing how the Claimant exceeded his limit. Worse still, the said exhibits were merely dumped on the Court without any oral evidence linking or tying them to the specific averments in the counter-claim. Cited Ladoja vs Ajimobi (2016) 10 NWLR (Pf. 1519) 87 the Court of Appeal held that: dumping of documents simply means that the document was tendered without leading oral evidence to identify and tie it to the specific aspect of a party's case. The testimony of DW2 under cross-examination did not advance the Defendant's case. He merely referred to documents mentioned in his Written Statement on Oath but failed to explain or demonstrate how the Claimant exceeded his expenditure limit. There was clearly no nexus between the pleadings and the evidence led.

LEGAL SUBMISSION OF THE DEFENDANT

Counsel for the Defendant nominated three issues for determination of this suit, to wit:

 

 

On issue one, Counsel for the Defendant submitted that it is a settled principle of law that he who asserts must prove. The law places the burden of proof on the party who would fail if no evidence were called on either side. This fundamental principle is codified under Section 131 of the Evidence Act, 2011, which provides that the burden of proof in civil cases lies on the party who asserts the existence of a fact.

Submitted that in the instant case, the Claimant who asserts entitlement to the sum of N57,757,493.7 and $18,000.00 bears the legal burden of establishing the basis of such entitlement. It is respectfully submitted that the Claimant has failed woefully to discharge this burden. The Claimant in paragraph 1 of his witness statement on oath dated 6^th June 2024 (hereinafter referred to as the Claimant's witness statement) deposed that he was formerly under the employment of the Defendant from 1998 to 2022. Furthermore, in paragraph 8(ii) of the same witness statement, he referred to the Defendant's “Employee's handbook and condition of employment governing the contract of employment between the parties". The said conditions of employment were admitted in evidence before this Honourable Court as EXHIBIT C15 and EXHIBIT DWM.

Equally instructive is the fact that in paragraph 7 of the Claimant's witness statement, the Claimant stated that he resigned his appointment and that the Defendant accepted the resignation by letter dated 25/7/2022. The said letter was admitted in evidence as EX DW J and EX C12. The said letter is very clear and unambiguous. In it, the Defendant demanded that the Claimant “should also arrange to surrender/return all the company's asset/property with you immediately". This directive was unequivocal and imposed a clear obligation on the Claimant. However, the Claimant failed and refused to comply with this condition. 

The Claimant admitted under cross examination that the employee's handbook applies to him and also admitted that he unilaterally decided to keep the Defendant's vehicles in his custody. This admission becomes even more significant when juxtaposed with the Defendant's demand in EXHIBIT DW J that he should surrender all company property in his possession. Indeed, admission is the best evidence against the maker. The law is trite that facts admitted require no further proof. In the instant case, the Claimant has admitted both the applicability of the conditions of service and the fact that the company vehicles remained with him.

Article 39 of the Defendant's Conditions of Employment, admitted as EXHIBIT C15 and EXHIBIT DWM, clearly provides that where an employee “fails to account satisfactorily for monies and/or goods entrusted to him/her by the company or held by him/her on behalf of the company, such employee may be liable to be charged in whole or in part, and such charges shall be regarded against any money due to the employee on leaving the employment of the company. This provision is unequivocal. It creates a condition precedent to the payment of any entitlement due to an employee upon leaving the employment of the Defendant. In other words, the employee must first account for or return the company's property in his possession before any money due to him can be released.

The Claimant in the instant case admitted that the vehicles were with him and further admitted that he decided to keep them in "safe custody". This unilateral decision cannot override the express demand of the Defendant contained in EXHIBIT and DWJ nor can it supersede the provisions of the Conditions of Service. An African proverb aptly captures the situation thus: “He who holds another man's goat cannot claim to be fasting." The Claimant cannot in one breath retain the Defendant's property and in another breath, demand payment of monetary entitlements. The law governing employment relationships of this nature is settled. The instant case is an employment dispute without statutory flavour, and therefore governed strictly by the terms agreed upon by the parties. In SHUAIBU & ORS v. NBC PLC (COCA-COLA) (2020) LPELR-52110(CA) it was held that contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are spelt out.

This authority implies that the employee handbook and conditions of service constitute the binding charter regulating the relationship between the parties. The Claimant himself acknowledged the applicability of the handbook during cross examination. Having admitted its applicability, the Claimant cannot now seek to escape the consequences of its provisions. The law does not permit a party to approbate and reprobate at the same time. As the African wisdom says, "he who holds the yam and the knife cannot claim innocence." The Claimant who admits keeping the Defendant's vehicles cannot simultaneously demand the payment of entitlements while still retaining the Defendant's assets. The position of the law was further restated by the Supreme Court in Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805) 589, where the Court held that a court has no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the document or documents. Parties are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives rise to the contractual relationship. 

This authority reinforces the principle that parties are bound by the four walls of their contract. The Claimant cannot ask this Honourable Court to ignore the clear provisions of the Defendant's Conditions of Service and the express demand in EXHIBIT DW J. The Supreme Court further clarified the duty placed on an employee who alleges breach of employment conditions in F.M.F. Ltd. v. Ekpo (2004) 2 NWLR (Pt. 856) 100, where it was held that: when an employee or a former employee, as in the instant case, complains that his employer or former employer, as the case may be, is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the following duties to perform, that is: to place before the court the staff conditions of service or the terms of the contract of employment; and to prove in what manner the said staff conditions of service or the terms of contract of service were breached by the employer. This is because he who asserts must prove, and the conditions of service or the terms of contract of service are the bed-rock of the case. It is not the duty of the employer who is the defendant to the action to prove any of those things.

Applying the above authority to the instant case, the Claimant must not only produce the conditions of service but must also demonstrate how the Defendant breached them. Respectfully, the Claimant has failed to do so. Rather, the evidence before this Honourable Court shows that it was the Claimant who failed to comply with the Conditions of Service by refusing to return the Defendant's assets. The apex court further emphasized the primacy of employment documents in SCC (Nig.) Ltd.v.Joseph (2026)1 NWLR (Pt. 2025) 227, where it held: first, it is pertinent to note that employer-employee relationship is contractual in nature and the law is firmly settled that whenever an employee seeks to enforce any employment rights, the terms of the employment together with the document that forms the basis of the terms must be placed before the court.

The documents governing the employment relationship have indeed been placed before this Honourable Court, particularly EXHIBIT C15 and EXHIBIT DWM. A careful look at those documents reveals that the Claimant's entitlement upon leaving employment is subject to accounting for the company's property entrusted to him. In Adedeji v. Obajimi (2018)16 NWLR(Pt.1644)146, the Supreme Court reiterated the settled principle that: once the terms of contractual agreements between parties are clear and unambiguous, it is the duty of courts to construe such agreements/contracts in line with the clear intention of the contracting parties. [Olatunde v. OAU (1998) 5 NWLR(Pt.549) 178 P.165,paras.G-H.

The terms in the present case are not ambiguous. They are clear, express and binding. The Claimant must first surrender the Defendant's assets and account for any property entrusted to him before claiming any entitlement. An age-long African proverb says "the man who wants to harvest honey must first remove his hand from the hive." The Claimant cannot continue to hold onto the Defendant's assets and simultaneously seek financial benefits from the same Defendant.  The equitable maxim “he who comes to equity must come with clean hands” is also instructive. The Claimant's conduct in retaining the Defendant's vehicles while demanding payment of entitlements falls short of the equitable standard expected of a party seeking relief from a court of law.

On the document titled, "Schedules of Monthly Claims of the MD/CE (2019-2022)" and dated the 28^th of September 2022, submitted that it is a forged document that never emanated from the Defendant as presented by the Claimant. The particulars of forgery were aptly outlined in paragraph 12(f)of Alhaji Dalhatu Gwarzo, (DW1) witness statement on oath. The Claimant could not prove the authenticity of the document. It could be seen on the face of the document that the Claimant signed the document on the 28^th of September 2022, even though by Exhibit C12, he resigned on the 25^th of July 2022. 

The Claimant has not discharged the burden placed upon him by law. The evidence before this  Court clearly establishes that the Claimant failed to comply with the condition precedent requiring the return of the Defendant's properties before any entitlement becomes payable. As the elders say, "one who is indebted should not beat the drums of celebration." The Claimant cannot demand payment while simultaneously withholding the Defendant's assets.

On issue two, Counsel submitted that the parties are in common ground with respect to the following: the Claimant was elevated/appointed the Managing Director of the Defendant Company by virtue of Exhibit C4, letter dated the 10^th of March 1998, the Claimant resigned from the position of Managing Director by virtue of letter dated the 1^st of December 2008, Exhibit C8, the Claimant applied for reappointment as Managing Director by letter dated the 12^th of December 2008, Exhibit C10 and the Defendant reappointed the Claimant as Managing Director by letter dated 02/02/2009, Exhibit C11 and Exhibit DW L.

It is precisely at the point of the reappointment in 2009 that the parties' positions diverge completely. What was once a common road now split into two paths. The Claimant contends that despite his resignation in 2008 and his fresh re-appointment in 2009, he is still entitled to rely on the benefits contained in the letter dated of 10^th  March 1998 (Exhibit C4). The Defendant, however, submits that the Claimant's reappointment in 2009 created a fresh contractual relationship governed by fresh terms and conditions. Indeed, an African proverb wisely says "when a man leaves a house and returns through another door, he enters as a new guest." The Claimant cannot resign from a contract and later seek refuge under the same contract after he has been reappointed under new terms.

The Claimant subsequently resigned by Exhibit C8 and thereafter applied for re-appointment. The evidence before this Honourable Court clearly shows that the Claimant applied for reappointment by letter dated 12^th December 2008 (Exhibit C10). That application constituted the offer from the Claimant seeking to re-enter the employment of the Defendant. The Defendant thereafter responded by issuing the letter of reappointment dated the 02/02/2009 (Exhibit C11 and Exhibit DW L). This letter constituted the acceptance of the Claimant's offer, albeit on clearly stated terms that the appointment was in accordance with the Company's Memorandum and Articles of Association and is without prejudice to the provisions of CAMA and the Company's Conditions of Service. The Supreme Court in NNPC v. FUNG TAI ENGINEERING CO LTD (2023) LPELR-59745(SC)explained the essential ingredients of a valid contract thus: The law is also trite that for there to be a valid and enforceable contract to which parties would be held bound to, these essential elements must be present:-(a) a definite offer by one party to the other.(b) an unqualified and unequivocal acceptance of the offer made by the other party; (c) a valuable consideration agreed to by parties; and (d) the capacity of the parties to contract or enter into a valid agreement or legal relationship.

The sequence of events in this case perfectly fits into this classical framework of contract formation. The Claimant made the offer by applying for reappointment, and the Defendant accepted that offer on clearly defined terms through the reappointment letter of 02/02/2009. The law is equally settled as stated in N.R.M.A. & F.C. v.Johnson (2019) 2 NWLR (Pt. 1656) 247: an offer must be clearly accepted in order to crystallize into a contract. However, an offeree can demonstrate acceptance of an offer by conduct as well as by words or by documents that have passed between parties./College of Medicine of University of Lagos v. Adegbite (1973) 5 SC 149; Majekodunmi v. National Bank of Nigeria Ltd. (1978) 3 SC 119 

By accepting the re-appointment and serving under it, the Claimant accepted the contractual framework embodied in the reappointment letter and the Defendant's Conditions of Service. Submitted that the letter of reappointment dated 02/02/2009 provided for benefits different from those in the first letter of appointment. There is nothing in the Company's Memorandum and Articles of Association or the Company's Condition of Service that provides for a business class return air ticket to London or equivalent; or an estacode allowance of US $3,000.00 for the trip.

On issue three, Counsel for the Defendant submitted that the Claimant admitted both in his evidence-in-chief and under cross-examination that the said vehicles are presently in his possession under what he described as “safe custody.” This admission is crystal clear, It leaves no room for speculation. The Defendant did not instruct the Claimant to keep the vehicle sin safe custody. The Claimant unilaterally decided to retain them. The law is settled that an admission is the best form of evidence against the maker. Section 20 of the Evidence Act was judicially illuminated in Heritage Bank Ltd.v. Meens (Nig.) Ltd. (2025) 9 NWLR (Pt.1994) 321, where the Court held: Section 20 of the Evidence Act, 2011 states that an admission is a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, mentioned in the Act. The courts have consistently treated admissions as decisive evidence. Cited also the case of Major Concept Ltd. v. Eze (2025) 19 NWLR (Pt. 2019) 1

The implication of these authorities is unmistakable. The Claimant's own testimony has supplied the very foundation upon which the Defendant's counter-claim stands. Confessio est regina probationum-admission is the queen of evidence. Significantly, in paragraph 7 of the Claimant's witness statement, the Claimant stated that he resigned his appointment and that the Defendant accepted the resignation by letter dated 25/7/2022. The said letter was admitted in evidence as EX DW J and EX C12. The letter is very clear and unambiguous. In it, the Defendant demanded that the Claimant: should also arrange to surrender/return all the company's asset/property with you immediately.

The directive is unequivocal. It imposed a clear contractual and fiduciary obligation on the Claimant to return the Defendant's assets without delay. However, the Claimant failed and refused to comply. Among the elders it is often said that "the servant who is asked to return the hoe but keeps it in his room is no longer guarding it; he is claiming it." Safe custody cannot be invoked as a shield for withholding another man's property. Equity will not permit a party to convert temporary possession into indefinite control.

The law is clear: nemo dat quod non habet-no one can give what he does not have. The Claimant cannot arrogate to himself a right to retain the Defendant's vehicles when the Defendant has expressly demanded their return. In paragraph 3 of the Claimant's Amended Reply, the Claimant attempted to justify his refusal to hand over the vehicles in his letter dated 22^nd of September 2022 to the Defendant The Claimant is essentially saying that he will only return the Defendant's assets after his severance benefits are settled. But is this what was envisaged by Article 39 of the Employee's Handbook, which the Claimant himself admitted binds him? Article 39 is explicit on the consequences of an employee retaining company property upon cessation of employment. The provision requires that all company property in the custody of an employee must be returned immediately upon termination or resignation. The provision goes further to stipulate that where company property is not returned and expenses or charges arise from such failure, such charges shall be regarded as a prior debt against any money due to the employee on leaving the employment of the company.

In other words, the handbook anticipated precisely the situation now before this Court. It did not empower the employee to retain company property until his entitlements are settled. Rather,it clearly establishes that any liability arising from the failure to return company property takes priority as a debt over any entitlement due to the employee. The Claimant's attempt to make the return of the vehicles conditional upon the settlement of his severance benefits is therefore not only contrary to the clear wording of Article 39 but also defeats the very structure of the contractual arrangement he voluntarily subscribed to. Expressio unius est exclusio alterius-where the contract expressly stipulates how such matters are to be handled,no contrary condition can be implied. Property kept after demand ceases to be custody and becomes possession. Borrowed property must first be returned before any quarrel about reward begins.

By withholding the vehicles pending settlement of his severance benefits, the Claimant has effectively attempted to hold the Defendant's property hostage, a conduct which equity cannot endorse. Equity aids the vigilant, not the recalcitrant. The Defendant did not merely rely on admissions. The Defendant went further to prove the value of the vehicles and the excess expenditure through documentary evidence. The documents and receipts showing the value of the vehicles as claimed in the counter-claim were pleaded and tendered as Exhibits DW A, B, C, D, E, F,G, H and I. These documents clearly establish the value of the vehicles and the resulting financial loss suffered by the Defendant. It is pertinent to note that the Claimant did not controvert these figures. He did not present any alternative valuation before this Honourable Court. 

The law is settled that evidence which is unchallenged and uncontroverted ought to be accepted by the Court. In Citec Intl Estates Ltd. v. E. Intl Inc. and Associates (2018) 3 NWLR (Pt. 1606) 332, the Court held: If any evidence given by any party is not controverted by the other party who has the opportunity to do so, and such evidence is not inherently incredible or spurious, the court ought to give credence to such evidence and act on it. Cited also Arabambi v. Advance Beverages Ind. Ltd.(2005) 19 NWLR (Pt.959) 1.

The Claimant had every opportunity to challenge the Defendant's valuation but chose not to do so. Qui tacet consentire videtur, he who keeps silent is deemed to consent. The wisdom of our elders puts it more vividly: when a man measures yam before the elders and the owner keeps quiet, the measurement stands. The Defendant has therefore established three critical elements: The Claimant admitted possession of the Defendant's vehicles, the Defendant demanded their immediate return, which the Claimant refused. The Defendant proved the value of the vehicles and the resulting loss through documentary evidence which the Claimant did not controvert. Where evidence stands unrebutted, unchallenged and uncontroverted, the court has no reason to reject it. As wisdom from the old courts of the village square teaches: the man who keeps another's horse after the owner has called for it must either return the horse or pay for it.

ISSUES FOR DETERMINATION

I have cautiously gone through the pleadings, evidence led by the parties and legal submission of the parties, the parties raised and argued the same issues in their respective Final Written Addresses, the issues raised are germane to the resolutions of the contestations of the parties. I will therefore adopt the issues nominated by the parties, but will make issue two   raised by the parties to be issue one, because resolution of the second issue raised by the parties is dependent on issue one raised by the parties  Issues for determination are as follows:

 

 

Issues one and two are interrelated; in fact, issue one is the primary gauge to determine issue two, therefore, issues one and two will be taken together.

COURT’S DECISION

On issues one and two, it is necessary to commence this judgment by restating the golden rule of our civil jurisprudence regarding the burden and standard of proof. By virtue of Sections 131, 132, 133, and 134 of the Evidence Act, 2011 (as amended), in every civil proceeding, the burden of proof lies squarely on the party who asserts the existence of a fact or who claims entitlement to the reliefs sought. This burden rests on the claimant, who must prove his case on a balance of probabilities. He is the party who would fail if no evidence is led on either side.

Section 133(1) of the Act provides that the burden of first proving the existence or non-existence of a particular fact lies on the party against whom judgment would be given if no evidence were adduced on either side, regard being had to any presumption that may arise from the pleadings. Once that party adduces evidence which reasonably satisfies the Court that the fact sought to be proved has been established, the burden then shifts to the opposing party. If no further evidence is adduced by the other side, judgment would be given against that party.

The combined effect of these provisions is that while the claimant bears the ultimate or legal burden of proving his entitlement to the reliefs sought, the evidential burden of proving specific facts may shift from one side to the other in the course of the proceedings, depending on the state of the evidence before the Court: see the cases of IGIRIOGU V. SHARON PROPERTIES LTD. (2025) 5 NWLR (PT. 1984) 615 P. 639, PARAS. D-G, TS Y LTD. V. NWACHUKWU (2024) 13 NWLR (PT. 1954) 147, ADEBUTU V. I.N.E.C. (2024) 8 NWLR (PT. 1942) 1 AND OSOH V. A.P.C. (2023) 10 NWLR (PT. 1891) 51.

In the instant case, the burden of proving the claims or assertions made by the Claimant rests squarely and firmly on the Claimant. It is only after the Claimant has successfully discharged this initial burden of proof by establishing his case on the balance of probabilities that the Court may then call upon the Defendant to adduce evidence in rebuttal or to discharge the evidential burden of disproving the Claimant’s assertions.

Conversely, where the Claimant fails to discharge the burden of proof placed upon him in respect of his claims, the Court will not invite or call upon the Defendant to enter upon any defence or to discharge any evidential burden to disprove what has not been proved. In such a situation, the Claimant’s case must fail and the Court is entitled to dismiss the claims without more.

Having said all these, now reverting back to the facts before me, the first contract spanned from the 31^st of January 1995 to the 1^st of December 2008, when the Claimant voluntarily resigned his appointment vide Exhibit C8. The said resignation took effect on the 28^th of December 2008, as evidenced by Exhibit C9.

The second contract of employment commenced upon the re-appointment of the Claimant by the Defendant with effect from the 1^st of March, 2009 vide Exhibit C11, following the acceptance of his earlier resignation. This second engagement lasted until the 31^st of July, 2022, when the Claimant again resigned his appointment vide Exhibit C12. It is also not contested that the entire bundle of claims and reliefs sought by the Claimant in the instant suit relate exclusively to the second phase of his employment relationship with the Defendant. The law is well settled that facts admitted by the parties require no further proof. Such admitted facts are taken as established and proven before the Court: see the case of C.B.N. V. DINNEH (2021) 15 NWLR (Pt. 1798) 91 and JOLASUN V. BAMGBOYE (2010) 18 NWLR (Pt. 1225) 285.

On paragraph 8 of the Amended Statement of Claim, the Claimant based his claim on annual leave bonus for years 2017, 2018, 2019, 2020, 2021 and 2022 in the sum of N39,000,000 (Thirty-Nine Million Naira) and estacode allowance of US $18,000. 00 on Exhibit C4 which the Claimant enjoyed in his first phase of contract of employment with the Defendant. The Defendant, however, in paragraph 10(b) of its Amended Statement of Defence stated that Exhibit C4 is no longer operational and has been overtaken by the resignation of the Claimant from service of the Defendant in December 2008. 

Resignation from employment validly terminates the employment relationship once proper notice is given or salary in lieu is paid where applicable, per Section 11 of the Labour Act. A subsequent re-hiring creates a new master-servant relationship, governed by the new terms offered and accepted. The employer is not automatically bound by the prior contract unless the new agreement expressly or impliedly incorporates elements of the old one e.g., via continuity clauses for service, benefits, or seniority.

It is trite law that the resignation of the Claimant from the service of the Defendant vide Exhibit C8 effectively and completely terminated the first contract of employment, thereby bringing to an end any accrued or continuing entitlements arising from that first phase of employment, save for any terminal benefits already earned and paid or expressly preserved at the time of resignation.

Consequently, the subsequent re-appointment of the Claimant by the Defendant vide Exhibit C11 constitutes a fresh and independent contract of employment, distinct from the earlier one. The law is clear that upon a valid resignation, the previous employment relationship is severed, and a re-engagement creates a new master-servant relationship governed by the terms and conditions agreed upon at the time of re-appointment.

In the circumstances, the Claimant cannot validly or successfully rely on any previous entitlements, benefits, or terms arising from the first phase of the contract ( the 31^st of January 1995 to the 28^th of December 2008) in support of his claims under the second contract, unless such entitlements or terms are expressly incorporated into the new contract of employment or it is clearly shown by the conduct of the parties that they intended to adopt or carry over specific terms or benefits from the earlier contract.

Flowing from the foregoing, the question that deserves an answer here is whether the Claimant can rely on Exhibit C4, which forms part of the first phase of the contract (the 31^st of January 1995 to the 28^th of December 2008), in support of his claims under the second phase of the contract of employment. I cannot answer this judicial query in isolation of evidence before the Court. 

I have subjected the gamut of evidence before this Court to a crucible examination, the letter of re-appointment of the Claimant as the managing director/CE of the Defendant, that is Exhibit C11, for the sake of clarity reads that:

Dear Sir, 

RE: APPOINTMENT OF THE MANAGING DIRECTOR/CE

I am pleaded to inform you that your re-appointment as the Managing Director of EMCON Plc – Zaria has been approved with effect from 01^st March, 2009. The re-appointment is to last until further notice.

The re-appointment is in accordance with the Company’s Memorandum and Article of Association and is without prejudice to the provisions of CAMA and Company’s Conditions of Service.

On behalf of the Board of Directors, I congratulate you on your re-appointment and hope it will spur you to greater efforts leading to improved performance of the Company. 

Yours faithfully,

ELECTRICITY METER COMPANY NIGERIA PLC

 

Alhaji Tajuddeen A. Dantata

(CHAIRMAN, BOARD OF DIRECTORS)

A careful and dispassionate reading of Exhibit C11, that is, the letter of reappointment of the Claimant, leaves no doubt that Exhibit C11 does not allude to Exhibit C4, neither does Exhibit C11 expressly or impliedly provide for the entitlement of the Claimant as is done in Exhibit C4.

X-raying further evidence before the Court with an eagle’s eye, the Claimant’s reappointment took effect from the 1^st of March 2009, and the Claimant’s claims for his entitlement are for the period between 2017/2018 to 2019-2022. Does that mean the Claimant did not receive any salary or other entitlement from the Defendant between March 2009 and October 2019, since Exhibit C11 did not provide for his entitlement? I doubt it! The Claimant in paragraph 6(e) of his Consequential Reply to the Defendant’s Amended Statement of Defence and Counterclaim and paragraph 11(d) of the Additional Statement on Oath (Examination in Chief of CW1) where it was stated that after the re-appointment, the Defendant continued to observe and pay the entitlement in the previous terms of appointment except that the Defendant is in default of the claim in this suit.  

I have gone through the cross-examination of the Claimant/CW1, the Defendant did not cross-examine the Claimant/CW1 on evidence of the Claimant/CW1 where he stated that after his re-appointment, the Defendant continued to observe and pay the entitlement in the previous terms of appointment. In evaluating evidence presented to the Court, the Court will, first of all, critically examine the pleading whether there is a denial or admission of the assertion. If there is a denial, the option opening to the Court is to consider whether the party who has the burden to discharge has properly and effectively use the instrument of the cross-examination. The failure of the Defendant to cross-examine the Claimant/CW1 on this piece of evidence is disastrous to the defence of the Defendant. The effect of a failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness: see the case of OLOWU V. BUILDING STOCK LTD (2018) 1 NWLR (Pt. 1601) 343. In GAJI V. PAYE (2003) 8 NWLR (Pt. 823) 583 P. 605, paras. A-C where the Supreme Court held that:

This court held that it is not proper for a defendant not to cross-examine a plaintiff's witness on a material point and to call evidence on the matter after the plaintiff had closed his case. By the force of these authorities, the evidence of DW1 ought to have been taken with a pinch of salt.

In AMADI V. NWOSU (1992) 5 NWLR (Pt. 241) 273 P.284, paras. G-H where the Supreme Court held that:

It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness's testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts. After all, one of the main purposes of cross-examination is to test the veracity of a witness.

Interestingly, Exhibit C28 is in support of evidence of the Claimant that after his re-appointment, the Defendant continued to observe and pay the entitlement in the previous terms of appointment. Exhibit C28 shows that the Defendant paid the Claimant the sum of $5,959,00 for a business class air ticket Lagos – London – Lagos and $3,000 as a bonus for the year 2015 leave bonus for the Claimant as the Managing Director/CE of the Defendant. When documentary evidence supports oral evidence, oral evidence becomes more credible; the reasoning being that documentary evidence serves as a hanger from which to assess oral testimony: see the case of   ODUTOLA V. MABOGUNJE (2013) 7 NWLR (Pt. 1354) 522 P. 552, paras. C-D.

It is glaringly and manifestly obvious, even to the most casual observer and without the faintest need for illumination, that the Defendant deliberately and persistently continued to implement the annual leave bonus as clearly provided in Exhibit C4 after the Claimant’s reappointment. The Defendant’s brazen and contumacious denial of this patent and undeniable conduct following the Claimant’s reappointment in 2009 is nothing but a desperate and disingenuous attempt to shield itself from liability through utterly untenable and contemptible means. In the face of the Claimant’s unchallenged and compelling evidence on this issue, buttressed unequivocally by Exhibit C28, the Defendant has no hiding place whatsoever. There is simply no refuge, no escape, and no plausible justification for the Defendant to wriggle out of its binding and inescapable obligation. Even if the Defendant desperately attempts to wriggle, squirm, or otherwise evade its solemn and binding obligation, the doctrine of estoppel by conduct stands firmly at the very threshold of this Court, ready to seize the Defendant by the neck and hold it inescapably accountable for its own conduct. In PINA V. MAI-ANGWA (2018) 15 NWLR (Pt. 1643) 431 where the Supreme Court held that when there is an intentional representation that had been acted upon by the other party, the first party will be estopped from denying the existence of the state of affairs. In D.M.V. (NIG.) LTD. V. N.P.A (2019) 1 NWLR (Pt. 1652) 163 Pp. 183-184, paras. D-E where the Supreme Court held that:

The principle of estoppel by conduct is a common law principle that is premised on equity. The principle is that where one party has, by his words or conduct, made to the other a promise of assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. Whatever a man’s real intention may be, he is deemed to act willfully if he so conducts himself that a reasonable man would take the representation that he should act upon it and did act upon it as true. The party who made the representation would be precluded from contesting its truth.

In view of the foregoing, the evidence of the Claimant on the usage of Exhibit C4 to determine the annual leave bonus of the Claimant after his reappointment by the Defendant is probable, and I believe his evidence and disbelieve evidence of the Defendant not only for its failure to cross-examine the Claimant/CW1 on the fact that the Defendant continued to observe and pay the entitlement in the previous terms of appointment but also on accord of Exhibit C28. Issue one is therefore resolved in favour of the Claimant. I so hold.

On issue two which bothers on the main claim of the Claimant, the Claimant pleaded and led evidence to state that the Claimant resigned his appointment vide the letter dated the 25^th of June 2022 (Exhibit C12) with effect from 31^st July, 2022. Sequel to the resignation, the Defendant failed and/or neglected to pay the benefits, entitlement etc. due to the Claimant. The Claimant further stated that, by letter dated the 10^th of March, 1998 titled "Elevation to the Post of Managing Director/Chief Executive" he is entitled to the following: Salary of N 250,000 per annum; entertainment allowance of N 20,000 per month; an annual leave bonus made up of a business class return air ticket to London or equivalent; and estacode allowance of US $3,000.00 for the trip and “with this new position your expenditure approval limit at a time is now N500,000.00 (Five Hundred Thousand Naira Only)."

However, the unpaid Salaries & Allowances from November 2019 to July 2022 = 33 months x N193,779.59 (Based on Last Pay Slip of October, 2019) amounting to the total sum of N6, 394,726.47. Annual Leave Bonus for years 2017, 2018, 2019, 2020, 2021 and 2022. Business class return air ticket to London or equivalent at the rate of N6,500,000.00 for 6 years i.e N39,000,000.00. Estacode Allowance of US $3,000 for the trip for 6 years =$18,000.00.

I now turn to the Claimant’s claim for unpaid salaries and allowances from November 2019 to July 2022. The Claimant predicated this head of claim on Exhibit C14, which comprises his pay slips for the months of July 2019, August 2019, September 2019, and October 2019. In his testimony, CW1 stated that the unpaid salaries and allowances for the said period of 33 months amount to 33 × N193,779.59 = N6,394,726.47. It is noteworthy that the Defendant did not lead any evidence whatsoever to establish that the Claimant was paid his salaries and allowances for the period in issue. The Defendant neither tendered any pay slips, bank statements, payment vouchers, nor any other documentary evidence to controvert the Claimant’s assertion of non-payment.

It is the view of this Court that the most probable and reliable way of proving payment of salaries by an employer to an employee is by the production of the employee’s pay slips, salary schedules, or other credible evidence of payment. In the absence of any such evidence from the Defendant, and having regard to the principle that he who asserts must prove, I hold that the Claimant has successfully established on the balance of probabilities that his salaries and allowances for the 33-month period remained unpaid. Accordingly, I find and hold that the Defendant is indebted to the Claimant in the sum of N6,394,726.47 (Six Million, Three Hundred and Ninety-Four Thousand, Seven Hundred and Twenty-Six Naira, Forty-Seven Kobo) only, being the unpaid salaries and allowances from November 2019 to July 2022. The Defendant is therefore liable to pay the said sum to the Claimant. I so hold.

I now proceed to consider the Claimant’s claim for unpaid annual leave bonus for the years 2017 to 2022, comprising a business class return air ticket to London (or its equivalent) and estacode allowance of US$3,000.00 per trip.

The Claimant anchors this head of claim on Exhibit C4 and Exhibit C29. In his evidence, CW1 testified that by virtue of Exhibit C4, the Claimant is entitled to an annual leave bonus consisting of a business class return air ticket to London or its equivalent, together with an estacode allowance of US$3,000.00 for the trip. The Claimant maintained that he was not paid this benefit for the six (6) years spanning 2017 to 2022.

The Claimant computed the value of the business class return air ticket at the rate of N6,500,000.00 per annum, amounting to N39,000,000.00 for the six years. The estacode allowance was calculated at US$3,000.00 per year for six years, totalling US$18,000.00. The Claimant relied on Exhibit C29, a document prepared by CW2, who testified that he computed the prevailing rates for business class return flights from Nigeria to London between 2017 and 2022, taking into account factors such as ticket flexibility, early booking, and rescheduling. According to CW2, the accumulated cost for the six years amounted to N39,000,000.00. 

On the issue of the value of the business class return air ticket to London, the Defendant called DW1, who testified in rebuttal of the Claimant’s computation. DW1 stated that he reviewed the cost of business class return tickets to London using British Airways for the relevant period of 2017 to 2022. According to his evidence, the total cost for the six years amounted to the sum of N12,943,098.00 (Twelve Million, Nine Hundred and Forty-Three Thousand, Ninety-Eight Naira) only.

The snag in evidence of DW1 is that his evidence is not pleaded. Facts which are not pleaded by parties go to no issue; similarly, evidence led at the trial which is not anchored on the parties' pleaded facts must be discountenanced: see the cases of PAN BISBILDER (NIG.) LTD V. F.B.N. LTD. (2000) 1 NWLR (Pt. 642) 684 and DODO V. SALANKE (2006) 9 NWLR (Pt. 986) 447.

In view of the inadmissible evidence of DW1, the Court will therefore be bound by evidence of CW2 who said the accumulated cost for the six years amounted to N39,000,000.00. It is the finding of the Court that the Claimant is entitled to the sum of N39,000,000.00 being the unpaid equivalent annual leave bonus for the years 2017 to 2022. I so hold.

On the unpaid estacode allowance of US$3,000.00 per trip. The estacode allowance was calculated at US$3,000.00 per year for six years, totalling US$18,000.00. Therefore, the Claimant is entitled to be paid the sum of US$18,000.00 being the estacode allowance for the trip for 6 years =$18,000.00. I so hold.

The Claimant further led evidence to state that by Article 12 and Appendix A of the Defendant’s Employee’s Handbook and Condition of Employment issued by the Defendant to the Claimant also govern the employment between the Claimant and the Defendant. Annual Leave Allowance (Article 12) & Appendix A of the Employees Handbook in the sum of 100% of Basic Monthly Salary= N193,779.59 for the year 2017 - 2022 (6 years) totaling N1,162,677.54. The Defendant denies that the Claimant is entitled to his annual leave allowance from 2017 to 2022.

Counsel for the Defendant excellently argued on paragraphs 4.1.9 to 4.1.12 of his Final Written Address on the binding effect of the Defendant’s Employee’s Handbook and Condition of Employment, that is Exhibit C15. I do not think either of the parties can resile from the provisions of Exhibit C15. In fact Counsel quoted an African proverb which states that a man who goes to the market and chooses only sweet fruits must also accept the bitter ones in the same basket. This is an amplifier of the principle of law that the parties and the Court are bound by evidence presented before the Court and they cannot pick and choose which evidence to rely on except if it is not admissible.

Paragraph 12 of Exhibit C15 provides that all senior staff of the Defendant, including the Claimant, shall be entitled to annual leave allowance as specified in Appendix A of the said Exhibit. The said Appendix A clearly stipulates that the annual leave allowance shall be 100% of the employee’s basic monthly salary. The Claimant, in his computation, relied on his net pay of N193,779.59 (as shown in Exhibit C14) as the basis for calculating the annual leave allowance. This approach is incorrect. The applicable basis for computation, as expressly provided in Exhibit C15 and its Appendix A, is the basic monthly salary, not the net salary. From the pay slips contained in Exhibit C14, the Claimant’s basic monthly salary is N106,646.42.

The correct computation of the unpaid annual leave allowance for the six (6) years (2017 to 2022) is therefore as follows: N106,646.42 × 6 years = N639,878.52

Having found that the Claimant is entitled to be paid the annual leave allowance and the Defendant having failed to prove the payment of the same, I hold that the Claimant is entitled to the sum of N639,878.52 (Six Hundred and Thirty-Nine Thousand, Eight Hundred and Seventy-Eight Naira, Fifty-Two Kobo) only, being the unpaid annual leave allowance for the years 2017 to 2022. I so hold.

The Claimant also claims the payment of gratuity for 27 years of service; the Defendant, as usual, denies this claim. Article 28 of Exhibit C15 provides that any senior staff member whose appointment ends shall receive a service gratuity as contained in Appendix K. Under Appendix K, there are three categories of gratuity: that is, 10 years of service, above 10 years but under 15 years and 15 years and above. The Claimant claims to have worked for the Defendant for 27 years, thereby entitling him to the sum of N3,599,316.68.

This Court had earlier held that the Claimant served the Defendant under two distinct and separate contracts of employment. The first contract, which commenced on the 31^st of January, 1995, was terminated by the Claimant’s voluntary resignation vide Exhibit C8. The second contract, which arose from the re-appointment vide Exhibit C11, was also brought to an end by the Claimant’s resignation vide Exhibit C12. The re-appointment of the Claimant vide Exhibit C11 was neither a continuation of the first appointment nor a reinstatement thereof. It constituted a fresh and independent contract of employment.

Consequently, the Claimant cannot lawfully or validly base his claim for gratuity on the entire length of service commencing from the 31^st of January, 1995. Furthermore, there is no pleading or scintilla of evidence before this Court suggesting that the Claimant was not paid his gratuity (if any) at the time he resigned his first appointment vide Exhibit C8.

It follows, therefore, that the computation of any gratuity due to the Claimant must be strictly limited to the period of the second contract of employment, that is, from the effective date of re-appointment as stated in Exhibit C11 to the date of his final resignation as contained in Exhibit C12. 

The period of the Claimant’s second contract of employment with the Defendant, from the date of his re-appointment to the date of his resignation, spans from the 1^st of March, 2009 to the 31^st of July, 2022.

This Court has already determined that the said period constitutes 13 years. However, since the re-appointment took effect on the 1^st of March, 2009, and the resignation took effect on the 31^st of July, 2022, the years 2009 and 2022 were not completed or full years of service.

Consequently, the years 2009 and 2022 shall not be reckoned with in the computation of the Claimant’s gratuity. Gratuity shall therefore be calculated based on the completed years of service only.

The Claimant, by virtue of Appendix K of Exhibit C15, falls under the second category of the Defendant’s gratuity scheme, that is, employees who have served above 10 years but under 15 years.

According to the said Appendix K, an employee in this category is entitled to 4 weeks’ basic pay for every completed year of service. As earlier held by this Court, the Claimant’s completed years of service under the second contract of employment (from the 1^st of March 2009 to the 31^st of July 2022) are 11 years (the years 2009 and 2022 having been excluded as they were not completed years). The Claimant’s basic monthly salary, as evidenced in Exhibit C14, is N106,646.42.

4 weeks’ basic pay per year = N106,646.42

Number of completed years = 11

Gratuity due = N106,646.42 × 11 = N1,173,110.62

Having regard to the clear provisions of Appendix K of Exhibit C15 and Exhibit C14, and the fact that the Defendant led no evidence to show that gratuity had been paid to the Claimant upon his final resignation, I find and hold that the Claimant is entitled to gratuity in the sum of N1,173,110.62 (One Million, One Hundred and Seventy-Three Thousand, One Hundred and Ten Naira, Sixty-Two Kobo) only. The Defendant is therefore liable to pay the said sum to the Claimant. I so hold.

The Claimant claims the payment of ad-hoc assignment from August 2022 to May 2024 at N1,500,000.00 per annum totaling N3,000,000.00. The Claimant relied on Article 9 of Exhibit C15. The Defendant denies the Claimant’s claim for ad-hoc assignment from August 2022 to May 2024 at N1,500,000.00 per annum totaling N3,000,000.00. 

Article 9 of Exhibit C15 provides that the Defendant may give any ad-hoc job/assignment to an employee or group of employees which may not directly related to the regular job the employee or group of employees are employed to do. Such ad-hoc assignments shall be effected with due regard to the employee’s position and qualification.

The snag in the Claimant’s ad-hoc assignment claim is the complete absence of any evidentiary basis for it. There is no evidence before the Court establishing that the Claimant was engaged on an ad-hoc basis from August 2022 to May 2024, the specific tasks or services the Claimant performed, or the existence of any agreement stipulating payment at the rate of ?1,500,000.00 per annum.

Though the Claimant tendered Exhibit C21, which the Claimant regarded in his Schedule of Documents as the Ad-hoc Assignment from September 2022 to date. These documents were not linked to any specific pleading of the Claimant; this is a typical instance of dumping the document on the court. In MAKINDE V. ADEKOLA (2022) 9 NWLR (Pt. 1834) 13 Pp. 45-46, paras. H-C where the Supreme Court held that:

On no account must counsel dump documents on the trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case.

 The Claimant’s ad-hoc assignment claim fails for lack of evidence accordingly dismissed. I so hold.

Finally, the Claimant claims the expenditure voucher in the sum of N4,600,773.00. The Claimant led evidence to state that by both letters dated the 10^th of March, 1998 on expenditure and/or, the Negotiated Agreement between "The precision, Electrical and related Equipment Employers Association of Nigeria (Perean) and Steel and Engineering Worker's Union of Nigeria (Sewun) Precision, Electrical and Related Equipment Workers' Sector entered on the 10^th of Nov, 2006 and affirmed by the Defendant by letters dated 29-03- 2007 and 22-06-2007 both titled Re: National Collective Agreement on Salaries & Allowances as well as the Defendant's Chairman's letter dated the 18^th of June,2007; the claimant is entitled to several allowances set out therein under the title "Management Staff summary. In consequence, the claimant is entitled to the following: (backed up by various vouchers on Monthly claims of the MD/CEO (2019-2022) which claims have been reduced to a schedule totalling N4,600,773.00. The Defendant, however, denies the claim of the Claimant on the expenditure voucher in the sum of N4,600,773.00

I have carefully looked at this claim of the expenditure voucher in the sum of N4,600,773.00. The Claimant, in his evidence, stated that his claim was reduced to a schedule totalling N4,600,773.00. The evidence of such a reduction is not before the Court. The Claimant did not tender the schedule of the monthly claim since the Claimant intended to rely on it. How the Claimant arrived at the sum of N4,600,773.00 is shrouded in obscurity. It is prone to miscarriage of justice to grant a claim which the Claimant fails to prove. Where a party on whom the onus lies to prove his case has not led satisfactory evidence, the decision should be in the opposite party's favour: see the case of ADENIJI V. ONAGORUWA (2000) 1 NWLR (Pt. 639) 1. In view of the inability of the Claimant to prove the claim in the sum of N4,600,773.00, the claim fails, and it is therefore dismissed.

Lest I forget, the Claimant prays the Court for the pre-judgment interest at the rate of 23% interest on the judgment sum from the 1^st of August 2022 to the date of the judgment. The Claimant led evidence to state that the failure to pay his monetary claim in 2022 has greatly affected the monetary value of the sum claimed due to the demanding currency value of money in Nigeria and the Defendant has been engaging in commercial activities, trading with the Claimant’s entitlement. I am not unaware of the position of law as recounted by the Supreme Court in the case of AFRIBANK (NIG.) PLC. V. AKWARA (2006) 5 NWLR (Pt. 974) 619, where it was held that it is not right to award interest pre-dating the date of judgment in a suit except where parties to the suit had agreed on payment of such interest.

In this instant case, there is obviously no agreement between the parties as to the payment of the pre-judgment interest. However, the latter decisions of the Supreme Court stated that the pre-judgment interest can be awarded where the claim is a liquidated or monetary sum.  In the case of N.P.A. V. AMINU IBRAHIM AND CO. (2018) 12 NWLR (Pt. 1632) 62 Pp. 87-88, paras. F-A where the Supreme Court held that:

The law is well settled that before a pre-judgment interest can justifiable be awarded, a plaintiff often pleads that he is entitled to such interest and also that where he so pleads it, he must prove the basis for his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on principle of equity. Such claim of interest is normally pleaded and proved.

It is however a valid law that a court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment.

Also, in the case of U.E.S. LTD. V. R.M.A.&F.C. (2022) 10 NWLR (Pt. 1837) 133 171, paras. A-D, where the Supreme Court further affirmed and reiterated its position in the case of N.P.A. V. AMINU IBRAHIM AND CO. (supra) cited above. In this instant case, the claim of the Claimant against the Defendant is a monetary sum; without doubt, the Court will be on the side of the law for granting the pre-judgment sum. I so hold.

Again, the Claimant also seeks post-judgment interest at the rate of 10% per annum on the judgment sum. The prayer is in accordance with Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 which provides that the Court can order interest at a rate not less than 10% per annum to be paid upon any judgment. In the case of N.P.A. V. AMINU IBRAHIM AND CO. (supra) Pp. 88 paras. A-C; 98 paras. B-C where the Supreme Court held that:

Atrial court can award judgment interest. The authority to award judgment interest is enshrined in the Rules of Court. The relevant position contained in the Federal High Court (Civil Procedure) Rules 2000 is found in Order 42 rule 7 this states as follows:-

The court at the time of making any judgment or order or at any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or Order, or from some other point of time, as the court deems fit and may order interest at a rate not exceeding 10%per annum to be paid upon any judgment, commencing from the date thereof or after wards, as the case may be.

I am firmly and unequivocally convinced that the Claimant, having substantially proved his monetary claim against the Defendant, the Claimant is entitled to pre-judgment and post-judgment interest as expressly prayed. The Defendant’s unjustifiable, obstinate, and indefensible denial of the Claimant’s clear entitlement leaves no room for equivocation. Let it be stated in the clearest terms: the paramount duty of both litigants and their counsel is to strive earnestly for the attainment of true justice.

Granting pre-judgment and post-judgment interest in this case will not only assuage the Claimant for the delay in the payment of his entitlement but also serve as a potent deterrent for the Defendant to take heed of its obligation. It will encourage parties in default to embrace honourable settlement out of Court rather than treating the judicial process as a playground to evade responsibility and prolong injustice. In this regard, the Court is reminded of the profound and well-reasoned words of Justice J.R. Midha in his farewell speech at the Delhi High Court: 

Both parties know the truth. It’s the judge who is on trial.

This Court shall not fail that trial! On the whole, the claim of the Claimant succeeds in part and issue two is therefore resolved in favour of the Claimant. I so hold.

On issue three, that is, the counterclaim of the Defendant. As expounded at the outset of this judgment on the burden of proof. In this counterclaim, the Defendant/Counter-claimant is now in the stead of the Claimant to prove its counterclaim. A counterclaim is a distinct claim from the claim to which it relates. Consequently, evidence must be led by a counter-claimant to prove his claims before it can succeed credibly. In effect, a counterclaimant cannot rely on the evidence of a claimant to prove his counterclaim, or rely on the weakness of a claimant's case as proof of his counterclaim. Accordingly, the fact that a claimant fails to prove his claim does not automatically make a counterclaim succeed: see the case of GARBA V. KUR (2003) 11 NWLR (Pt. 831) 280.

The Defendant, through DW2, led evidence to state that the Claimant was indebted to the Defendant in the sum of N13,111,285.65 (Thirteen Million, One Hundred & Eleven Thousand, Two Hundred & Eighty-Five Thousand Naira), being the value of the 3 of the Defendant's vehicle the Claimant took away. The vehicles valued in the sum of N13,111,285.65 (Thirteen Million, One Hundred & Eleven Thousand, Two Hundred & Eighty-Five Thousand Naira) only, taken away by the Claimant, do not form part of the recognised fringe benefits of the Claimant. In proof of this claim, the Defendant placed before the Court Exhibits DWA, DWB, DWC, DWD, DWE, DWF, DWG, DWH and DWI.

The Claimant, in his Reply, particularly paragraph 4 and paragraph 5 of the Additional Witness Statement on Oath, stated that the value placed on the car is not true. Timidan Nigeria Limited is not a company dealing in automobiles; it belongs to the Chairman and deals in building and road construction. Dawaki Motors Limited is not free from fraud, having been convicted of fraud in the case between FRN v. Dawaki Motors Limited by the Federal High Court. Madunka Motors Limited's receipt is for a different unit of Peugeot 406 with a different Chassis Number. The value placed by the Defendant in a vain attempt to escape liability.

A meticulous and thorough analysis of the evidence placed before this Court reveals the following facts: Exhibits DWA, DWB, and DWC unequivocally establish that the Honda Accord LX Model 2013, Grey in colour, bearing Registration Number ABC 795 AJ, was purchased for the sum of N6,825,000.00 (Six Million, Eight Hundred and Twenty-Five Thousand Naira) only, Exhibits DWD, DWE, and DWF clearly prove that the Peugeot 406 (Prestige) with Registration Number EM 368 ABC was acquired at the price of N4,486,285.65 (Four Million, Four Hundred and Eighty-Six Thousand, Two Hundred and Eighty-Five Naira) only, and Exhibits DWG, DWH, and DWI further confirm that the Toyota Sienna vehicle with Registration Number ABC 874 PH was bought for the sum of N1,800,000.00 (One Million, Eight Hundred Thousand Naira) only.

The Claimant admitted that the cars are still in the possession of the Claimant. The Claimant, however, said that the value was placed by the Defendant/Counterclaimant to escape liability and that the Defendant refused to take the vehicles and/or apply for the return of the dilapidated vehicles.

First of law, it is a veritable maxim of equity that he who comes to equity must come with a clean hand. Evidence of the Claimant that the Defendant refused to take the vehicles and/or apply for the return of the dilapidated vehicles is untenable in view of Exhibit DWJ, which requested the Claimant to surrender/return the Defendant’s/Counterclaimant’s assets/property with the Claimant immediately. How does the Claimant expect the Defendant/Counterclaimant to demand the return of the vehicle in the possession of the Claimant?

The Claimant further asserted that the valuation placed on the vehicles by the Defendant/Counterclaimant was a mere stratagem to escape liability, yet the Claimant conspicuously failed to proffer any alternative market value of his own. Rather than confronting the substantive issues raised in the counterclaim with focused and relevant evidence, the Claimant resorted to parading a lengthy, irrelevant, and moonlight tale wholly unconnected to the facts in dispute. The Claimant launched extraneous allegations — that Timidan Nigeria Limited is not an automobile dealer, that it belongs to the Chairman and is engaged solely in building and road construction, and that Dawaki Motors Limited is tainted by fraud, having been convicted in the case of FRN v. Dawaki Motors Limited before the Federal High Court. I guess the Claimant was merely trying to entertain the Court with irrelevant stories that bears no bearing whatsoever on the real issues in controversy.

Counsel for the Claimant argued on paragraph 6.16 of his address that the vehicles were retained in exercise of the Claimant’s right of lien over them pending the payment of his outstanding dues. Counsel referred to the case of Mr. Babatunde Komolafe v. Tomez Group Limited with suit number NICN/LA/489/2019, Judgment delivered 5^th of June, 2023 and Tamunoboma Igah v.Payporte Global Systems Limited with suit No NICN/LA/139/2018 judgment delivered the 4^th December, 2019. 

Without prejudice to the decisions of this Court commended by the Claimant, the Claimant in this case did not pray the Court to make him exercise the right of lien of the three vehicles. Counsel cannot seek a relief from the Court through his Written Address, every relief must be pleaded and proved. In Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486 it is the duty of a court not to grant a relief not sought. If a court of law grants to a party that which the party has not asked for, then the court is turning itself into a charitable organization or a “father Xmas” which, in reality, it is not.

Flowing from the foregoing, the Defendant/Counter-claimant succeeds in proving its counterclaim; therefore, issue three is thus resolved in favour of the Defendant/Counter-claimant. I so hold.

In summary, after a thorough evaluation of the evidence and the law, the Claimant’s claims succeed substantially in part, this Court finds and holds that issues one and two are resolved in favour of the Claimant. Consequently, it is hereby ordered as follows:

1. The Defendant shall pay to the Claimant:
2. Unpaid salaries and allowances from November 2019 to July 2022 in the sum of N6,394,726.47.
3. Unpaid annual leave bonus (business class air ticket equivalent) for 2017–2022 in the sum of N39,000,000.00.
4. Unpaid estacode allowance in the sum of US$18,000.00.
5. Annual leave allowance (per the Employee Handbook) in the sum of N639,878.52.
6. Gratuity (limited to the second contract of 11 completed years) in the sum of N1,173,110.62.
7. Pre-judgment interest is awarded in favour of the Claimant on the judgment sum at 23% from 1^st of August 2022 till today when the judgment is delivered, and post-judgment interest in favour of the Claimant at 10% per annum until final liquidation.
8. The Claimant’s claims for ad-hoc assignments and expenditure vouchers fail for lack of credible evidence and are hereby dismissed.

 

2. The Defendant’s/Counterclaimant’s counterclaim succeeds in full. The Claimant is liable to the Defendant in the sum of N13,111,285.65, being the proven value of the three vehicles (Honda Accord, Peugeot 406, and Toyota Sienna) wrongfully retained by the Claimant.
3. All terms pf this Judgment are to be complied with within 30 days from today without prejudice to the right of Appeal by both Parties. 
4. Parties shall bear their respective costs. 

 

Judgment is entered accordingly. 

 

HON. JUSTICE BASHAR A. ALKALI

HON. JUDGE

NATIONAL INDUSTRIAL COURT OF NIGERIA

KADUNA JUDICIAL DIVISION