IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE R. B. HAASTRUP

DATE: 11TH JUNE 2026                                              

SUIT NO: NICN/ABJ/309/2019

BETWEEN:

UNITY BANK…………………………..… CLAIMANT/DEFENDANT TO COUNTERCLAIM

AND

EMMANUEL C. EKWEM ………………DEFENDANT/COUNTERCLAIMANT

 

REPRESENTATIONS

I.G Williams Esq., Paul Eshiemomoh Esq. with Charles Egbunike Esq. for Claimant/Defendant to Counterclaim

Opeyemi Adeyemi Esq. with Aaron John Esq for Defendant/Counterclaimant

JUDGMENT

INTRODUCTION AND CLAIMS

[1] The claimant commenced this suit by way of General Form of Complaint filed on 11th October 2019 wherein the claimant is seeking the following reliefs:

  1. A DECLARATION that the unauthorized withdrawal of the sum of N22,558,344.80k (Twenty-Two Million, Five Hundred and Fifty-Eight Thousand, Three Hundred and Forty-Four Naira, Eighty Kobo) only being the total sum of the amount debited from account number 301/618559/110 (with NURBAN No: 0009378810) belonging to one Ahmadu Hamidu Sirajo by the Defendant is illegal, null and void.
  2. The sum of N22,558,344.80k (Twenty-Two Million, Five Hundred and Fifty-Eight Thousand, Three Hundred and Forty-Four Naira, Eighty Kobo) only being the total sum of the amount debited from account number 301/618559/110 (with NURBAN No: 0009378810) belonging to one Ahmadu Hamidu Sirajo by the Defendant.
  3. 20% interest per annum on the judgment sum from the day judgment is delivered till full liquidation of the judgment sum.
  4. 25% interest per annum from the date when the sum of N22, 558,344.80k (Twenty-Two Million, Five Hundred and Fifty-Eight Thousand, Three Hundred and Forty-Four Naira, Eighty Kobo) only being the total sum of the amount debited from account number 301/618559/110 (with NURBAN No: 0009378810) belonging to one Ahmadu Hamidu Sirajo by the Defendant, was debited till the date of judgment. 
  5. General and exemplary damages in the sum of N20, 000,000.00k (Twenty Million Naira) only.
  6. Cost of this action.

CLAIMANT’S CASE

[2] The Claimant is a commercial bank licensed by the Central Bank of Nigeria and was the Defendant’s employer until 2014. The Defendant, Staff ID 02339, joined the Claimant on 23rd March 2007 as an Executive Trainee and later served as Fund Transfer Officer and Acting Branch Service Manager at Paiko Branch. In 2014, the Claimant discovered fraudulent transactions on Account No. 301/618559/110, NUBAN 0009378810, belonging to Ahmadu Hamisu Sirajo, a customer who died in 2008. Investigations revealed that between August 2008 and January 2013, the Defendant diverted N29,519,544.62 (Twenty-Nine Million, Five Hundred and Nineteen Thousand, Five Hundred and Forty-Four Naira, Sixty-Two Kobo) into the deceased account from the Niger State Accountant-General’s account, Niger State Pension Board account, and the Claimant’s suspense accounts. Claimant withdrew N23, 018,196.39 (Twenty-Three Million, Eighteen Thousand, One Hundred and Ninety-Six Naira, Thirty-Nine Kobo) through electronic transfers, cheques, and ATM transactions, leaving a balance of N6, 579,544.62 (Six Million. Five Hundred and Seventy-Nine, Five Hundred and Forty-Four Naira, Sixty-Two Kobo). 

[3] The Defendant abused his access as Fund Transfer Officer to transfer funds, issued himself a cheque book and ATM/Verve cards on the deceased account, made withdrawals in Minna and Port-Harcourt and admitted the acts when confronted. The Defendant absconded during suspension, and was subsequently dismissed. 

[4] The fraud caused the Claimant to refund N22, 558,344.80 (Twenty-Two Million, Five Hundred and Fifty-Eight Thousand, Three Hundred and Forty-Four Naira, Eighty Kobo) to affected customers. Relying on Article 12.4 of its Employees’ Handbook, the Claimant seeks to recover the said sum from the Defendant. Hence, this suit. 

DEFENCE

[5] Reacting to the statement of facts, the Defendant filed his statement of defence and Counterclaim on 1st July 2020. He denies that his employment ended in 2014 and avers that he resigned voluntarily on 9th March 2020. He admits serving as Fund Transfer Officer at the Claimant’s Minna and Port-Harcourt branches, but denies ever working at Aba or Paiko branches or acting as Branch Service Manager. Defendant vehemently denies all allegations of fraud relating to Account No. 301/618559/110 of the deceased Ahmadu Hamisu Sirajo.

[6] The core of Defendant’s defence is that the Claimant’s operational procedure requires 3 to 4 independent officers to initiate, verify, approve before posting any transaction. He contends single-handed fraud is impossible under the bank’s system and Handbook Rules. He denies transferring funds from the Accountant-General’s or Pension Board accounts, issuing cheque books or ATM cards on any customer account, or making withdrawals. He admits suspension but denies absconding, stating he attended the criminal trial instituted by the Claimant, which was dismissed for want of prosecution. He denies receiving a query or dismissal letter and relies on the judgment of this Honourable Court delivered on 3rd March 2020 in Suit No: NICN/ABJ/183/2018, which nullified the purported dismissal. He also challenges the Internal Audit Report as prepared without his input. The Defendant denies liability under Article 12.4 of the Employees’ Handbook and prays the Court to dismiss the suit as speculative and an abuse of process, with substantial costs. 

COUNTERCLAIM

[7] The Defendant, now the Counterclaimant avers that he was never served with the purported dismissal letter dated 11th May 2015 which was allegedly issued by the Defendant to the Counterclaim. He further states that prior to the issuance of the said letter, he was neither queried nor afforded an opportunity to defend himself as required by the Defendant’s Employees’ Handbook.

[8] The Counterclaimant avers that he remained an employee of the Defendant to the Counterclaim until 9th March 2020, when he voluntarily resigned and the resignation was accepted. He alleges that the Defendant to Counterclaim withheld his salaries and allowances since January 2014 without just cause. Consequently, he claims entitlement to payment of all withheld salaries and allowances from January 2014 to 9th March 2020, subject only to deduction for two weeks in lieu of notice. 

[9] Counterclaimant further avers that despite the positive order of this Court in its judgment of 3rd March 2020 directing that his salary account be unfrozen, the Defendant has wilfully refused to comply, thereby preventing him from accessing his account statement.

[10] Consequently, the Counter claimant is seeking for the following reliefs:

  1. A DECLARATION that his (the Counterclaimant)'s purported dismissal by the Defendant to the Counterclaim pursuant to a letter dated 11th May, 2015 is null, void and of no effect whatsoever for having been found by this honourable Court not to have been issued in accordance with the employee handbook of the Defendant to the Counterclaim and served on the Counterclaimant.
  2. A DECLARATION that the Counterclaimant remained a staff of the Defendant to the Counterclaim till the 9th day of March, 2020 and is thus entitled to be paid his outstanding and withheld salaries and allowances from January, 2014 to 9th March, 2020, save for the deduction for two weeks' salary in lieu of notice.
  3. AN ORDER of this honourable Court nullifying the purported letter of dismissal dated 11th May, 2015, written by the Defendant to the Counterclaim, purportedly dismissing the Counterclaimant for having been found by this honourable Court not to have been issued in accordance with the employee handbook of the Defendant to the Counterclaim and served on the Counterclaimant.
  4. AN ORDER of this honourable Court mandating the Defendant to the Counterclaim to pay to the Counterclaimant, his outstanding salaries and allowances from January, 2014 to the 9th day of March, 2020, which was wilfully and unlawfully withheld by the Defendant to the Counterclaim.
  5. Costs of the Counterclaim in the amount of N500, 000.00 (Five hundred thousand naira) only.

COMMENCEMENT OF HEARING

[11] This suit was originally before my learned brother Hon. Justice E.N. Agbakoba of blessed memory and was assigned to me on 8th January 2024. Trial in this suit commenced on 4th December 2024 wherein the claimant called Mr Zubairu a resident control officer in the Paiko road branch of the Defendant situate in Minna, Niger State who testified as CW. He adopted witness statement on oath filed on 11th October 2019 and tendered 13 (thirteen) documents which were admitted and marked as exhibits C1-C13. 

Afterwards the claimant sought an adjournment to bring in subpoenaed witness but after a series of adjournment, the claimant being unable to secure the attendance of witness sought and obtained leave to close its case on 25th March 2025.

[12] The Defendant on his part opened defence on 21st July 2025 wherein the Defendant testified as DW1 and adopted witness statement on oath filed 1st June 2020. DW1 tendered 5 (five) documents admitted and marked as exhibits D1-D5. The Defendant’s case was closed after failing to obtain the appearance of his subpoenaed witness. The Court consequently adjourned for adoption of final written address which was taken on 18th March 2026. The Defendant filed his final written address on 15th December 2025. In reaction, the claimant filed its final written address on 19th February 2026 and the Defendant equally filed a reply on points of law in response to the claimant’s final written address on 4th March 2026.

 

 

DEFENDANT’S SUBMISSION

[13] Learned Counsel to the Defendant formulated 3 issues for determination to wit:

  1. Is the claimant/Defendant to the Counterclaim's pleadings not liable to be deemed abandoned in light of the fact that no evidence by way of a witness deposition on oath validly exists to substantiate the facts alleged therein?
  2. In the unlikely event that cognisance is taken of the claimant's incompetent witness deposition on oath and the averments in his pleadings are considered, has the claimant legally and factually proven its case on a balance of probabilities to be entitled to the reliefs sought per his complaint?
  3. Whether the Defendant/Counterclaimant is entitled to the reliefs sought in his Counterclaim having regards to the facts and evidence adduced in support of the Counterclaim.

LEGAL ARGUMENT

ISSUE ONE

Is the claimant/Defendant to the Counterclaim's pleadings not liable to be deemed abandoned in light of the fact that no evidence by way of a witness deposition on oath validly exists to substantiate the facts alleged therein? 

[14] The Defendant to the Counterclaim submits that the Claimant’s pleadings are liable to be deemed abandoned for lack of valid evidence as the sole evidence intended to substantiate the Claimant’s Statement of Facts is the witness statement on oath of CW1, which CW1 admitted under cross-examination was signed in his house and not before a Commissioner for Oaths. 

[15] Counsel submits that Section 112 of the Evidence Act 2011 bars admission of an affidavit sworn before a person on whose behalf it is offered or before his legal practitioner. In addition, that Section 117(4) requires an affidavit to be signed by the deponent in the presence of the person before whom it is taken. He referred to ONYECHI EROKWU & ANOR V. JACKSON NWABUFO EROKWU (2016) LPELR-41515(CA), ISHAQ & ANOR V. INEC & ORS (2008) LPELR-4336(CA). 

[16] Relying on JOLAYEMI & ORS V. ALAOYE & ANOR (2004) LPELR-1625(SC), MANSON V. H.E.S. (NIG.) LTD (2007) ALL FWLR (PT. 358) 1067, ATAGBOR V. OKPO & ORS (2013) LPELR-20207(CA), Counsel submits that where evidence is expunged, pleadings without supporting evidence are deemed abandoned and consequently discountenanced.

ISSUE TWO 

In the unlikely event that cognisance is taken of the claimant's incompetent witness deposition on oath and the averments in his pleadings are considered, has the claimant legally and factually proven its case on a balance of probabilities to be entitled to the reliefs sought per his complaint?

[17] It is submitted that assuming the Claimant’s pleadings are not deemed abandoned, the Claimant still failed to prove its case on a balance of probabilities. In civil cases the burden lies on the party who asserts to prove by preponderance of evidence with cogent and credible evidence. Counsel cited PDP V. APC (2020) 9 NWLR (PT. 1729) 213; ADAKE V. AKUN (2003) 14 NWLR (PT. 840); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158. 

[18] Counsel submitted that the Claimant adduced no evidence linking the Defendant to the alleged unauthorized withdrawals; CW1 admitted under cross-examination that the staff ID implicated in Exhibit C2 is 9918, not the Defendant’s ID 02339. Also, no demonstration was made linking the Defendant to the statements of account tendered. Counsel argued that the Claimant’s case is riddled with contradictions as it pleaded the deceased account was closed in 2008, yet CW1 confirmed Exhibit C7 which states “Failure of the branch to close the deceased customer’s account”. The Defendant also testified he served only at Minna and Port Harcourt branches from 2007 to 2012 and never at Paiko, while the Claimant alleged the fraud was discovered at Paiko Branch in 2014. 

[19] It was further submitted that no Reply was filed to rebut these assertions. Furthermore, Counsel asserts that the sum claimed includes bank charges and sundry fees earned by the Claimant on an account it admitted managing despite alleging it was closed. Reference was made to EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556, INTERNATIONAL BEER & BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIGERIA) LTD (2011) LPELR-4329(CA) where it was held that inconsistent positions crumble and a Court cannot choose or repair such a case. Thus, having failed to credibly link the Defendant to the alleged fraud, Defendant’s Counsel submits that the Claimant is not entitled to reliefs a - f.

ISSUE THREE 

Whether the Defendant/Counterclaimant is entitled to the reliefs sought in his Counterclaim having regards to the facts and evidence adduced in support of the Counterclaim.

[20] Defendant’s Counsel submits in the affirmative and states that the Counterclaimant remained in the employ of the Defendant to the Counterclaim until voluntary resignation on 9th March 2020, but his salaries and allowances were withheld from January 2014. The Defendant to the Counterclaim relied on a purported dismissal letter dated 11th May 2015 which was never served, and the Counterclaimant was never queried as required by Paragraph 12(8) (a) of Exhibit D5, the Employee Handbook. Counsel submits that an employee whose employment has not been validly terminated is entitled to salary and emoluments. He cited NBC V. EDWARD (2015) 2 NWLR (PT. 1443) 201.

[21] Counsel further submitted that this Court in Exhibit D4, Judgment dated 3rd March 2020, found as fact that the dismissal was null and void for non-service and failure to query the Counterclaimant; and CW1 confirmed under cross-examination that the Counterclaimant’s monthly salary was N150,000.00 (One Hundred and Fifty Thousand Naira only) from January 2014 to 9th March 2020. Counsel emphasised that the Defendant to the Counterclaim failed to produce the statement of the Counterclaimant’s salary account despite subpoena, triggering the presumption under Section 167(d) of the Evidence Act 2011 that such evidence would be unfavourable to it. He cited BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1. 

[22] It was also submitted that Defendant to the Counterclaim did not file any defence to the Counterclaim as required by Order 32 Rule 9(2) of the National Industrial Court of Nigeria Civil Procedure Rules 2017, therefore leaving it unchallenged and deemed admitted. Counsel cited ANAEZE V. ANYASO (1993) 5 NWLR (PT. 291) 1, OLALEYE V. WEMA BANK LTD (2011) 3 NWLR (PT. 1233) 93. Counsel therefore asserts that the Counterclaimant has therefore proved his Counterclaim by unchallenged and credible evidence and consequently is entitled to payment of unpaid salaries and allowances from January 2014 to 9th March 2020, less two weeks in lieu of notice, and all other reliefs sought. 

 

 

CLAIMANT’S SUBMISSION

[23] The learned Counsel representing the claimant raised 4 (four) issues for determination as follows:

  1. Whether having regards to the documentary and viva voce evidence of parties in this suit, the Claimant has discharged the burden of proof on a balance of probability and beyond reasonable doubt for the Criminal elements to be entitled to the judgment of this Court in this case.
  2. Whether, having regard to the decision of this Court in (Exhibit D4) Coram Hon. Justice - Kanyip PHD, the Defendant's Counter-Claim is an abuse of Court process and ipso facto ought to be dismissed.
  3. Whether exhibit D1 (Letter of resignation) is admissible or possesses any evidential weight, regard being had to the fact that it was made during the pendency of this suit in breach of Section 83(3) of the Evidence Act, 2011 (As amended)
  4. Whether (Assuming without conceding) that the Counterclaim is not an abuse of Court process, the Defendant Counter-Claimant has succeeded in proving his Counter-Claim upon the preponderance of Evidence to be entitled to the judgment of this Court.

LEGAL ARGUMENT

ISSUE ONE 

Whether having regards to the documentary and viva voce evidence of parties in this suit, the Claimant has discharged the burden of proof on a balance of probability and beyond reasonable doubt for the Criminal elements to be entitled to the judgment of this Court in this case.

[24] The Claimant contends it has discharged the burden of proof on a balance of probabilities and beyond reasonable doubt for the criminal elements alleged. In civil claims the burden of proof lies on the Claimant to establish its case by preponderance of evidence. Claimant’s Counsel cited SECTION 131 AND 132 EVIDENCE ACT 2011, AMADI V. AMADI (2016) 68 NSCQR 18, ODOM V. PDP (2015) 61 NSCQR 984. It was submitted that where fraud is alleged, the standard rises to proof beyond reasonable doubt as provided in Section 135(1) of the Evidence Act. However, it was argued that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It means a high degree of cogency consistent with a high degree of probability. Counsel referred to OMORHIRHI V. ENATEVWERE (1988) 1 NWLR (PT. 73) 746, BAKARE V. THE STATE (1987) 1 NWLR (PT. 52) 579 and submits that the Claimant’s case is that the Defendant, as Funds Transfer Officer with exclusive ID 02339, electronically transferred funds from the Accountant General of Niger State and the Niger State Secondary School Education Board into the closed account of deceased Hamadu Hamidu Sirajo, then withdrew same. This assertion according to Counsel is evidenced by Exhibit C2, the internal memo detecting suspicious transactions, Exhibit C4 and C9, statements of account of the Accountant General and Education Board showing debits of N9, 812,456.54 (Nine Million, Eight Hundred and Twelve Thousand, Four Hundred and Fifty-Six Niara, Fifty-Four Kobo) on 10th and 11th December 2013, Exhibit C3, the deceased’s account showing corresponding credits on 11th and 12th December 2013 and immediate withdrawals via Exhibit C5, Exhibits C7 and C11, internal audit and human capital reports chronicling the manipulation.

[25] Counsel submits that where direct evidence is absent, a Court may draw inferences from proven facts and circumstances. He cited EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) 1, NWAEZE V. THE STATE (1996) 2 SCNJ 42, ALO V. THE STATE (2015) ALL FWLR (PT. 849) 807, LION OF AFRICA INS. V. FISAYO (1986) 4 NWLR (PT. 37) 674 and further that circumstantial evidence that is cogent, positive and conclusive can sustain a conviction. He cited OGUNU V. STATE (2013) 53 NSCQR 1090; ODOGWU V. STATE (2013) 55 NSCQR 309. The Defendant admitted he was the sole Funds Transfer Officer with the portal password between 2007 and early 2014, and that the password was not stolen. No other officer was named as having access. The Defendant also admitted suspension via Exhibit C6 which contained particulars of the allegations, but absconded and could not be queried, as stated in Exhibit C7. Counsel submits that fair hearing requires opportunity to be heard, not actual hearing, and the law does not compel the impossible and cited SECTION 36 of the 1999 CONSTITUTION, OLAJUNWA V. OBELE (2007) 3 NWLR (PT. 1073) 52, SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR-3056(SC), MASU V. AMINU (2023) LPELR-60064(CA). Having proved fraud beyond reasonable doubt, claimant’s Counsel submits that the onus shifted to the Defendant to raise reasonable doubt – he placed reliance on Section 135(3) of the Evidence Act.

ISSUE TWO

Whether, having regard to the decision of this Court in (Exhibit D4) Coram Hon. Justice - Kanyip PHD, the Defendant's Counter-Claim is an abuse of Court process and ipso facto ought to be dismissed.

[26] The Claimant submits that the Defendant/Counterclaimant’s Counterclaim is an abuse of Court process and ought to be dismissed, having regard to Exhibit D4, the judgment of this Court Coram Hon. Justice Kanyip, PhD in Suit No: NICN/A/202. Reliefs b and d in the Counterclaim are pari materia with reliefs b and d in the earlier suit in Exhibit D4. Both claim payment of N2, 467,750.00 (Two Million, Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira) per annum as salaries and allowances from January 2014. This Court in Exhibit D4 dismissed reliefs b and d for failure to plead and strictly prove special damages. The Court held that the sum claimed was not particularized into basic salary and components of allowances, and that Exhibits C1 and C4 did not add up to N2,467,750.00 (Two Million, Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira). The burden of proving special damages lies on the claimant and cannot be shifted. Counsel cited 7UP BOTTLING COMPANY PLC V. AUGUSTUS (2012) LPELR-20873 (CA), NNPC V. CLIFCO NIGERIA LTD (2011) LPELR-2022(SC), MR. MUHAMMED DONGUS & ORS V. ENL CONSORTIUM LIMITED (2015) 60 NLLR (PT. 208) 39. 

[27] He further submits that a party cannot relitigate an issue conclusively determined by a Court of competent jurisdiction and doing so constitutes abuse of Court process. He cited ADUNKPA V. NDUKA (2001) 7 SC (PT. III) 126, ABALOGU V. SPDC (1987) 2 NWLR (PT. 61) 532, IGBEKE V. LADY OKADIGBO (2014) 57.2 NSCQR 949. Although DW1 denied under cross-examination that the reliefs are the same, Counsel submits that a perusal of Exhibit D4 and the Counterclaim shows they are identical. The Claimant therefore urges the Court to invoke its inherent power to prevent abuse of process and hold reliefs b and d in the Counterclaim to be an abuse, and dismiss them. He relied on OSSIEC V. CPC (2013) 53.1 NSCQR 384 @ 411 PARAS A-D.

ISSUE THREE 

Whether exhibit D1 (Letter of resignation) is admissible or possesses any evidential weight, regard being had to the fact that it was made during the pendency of this suit in breach of Section 83(3) of the Evidence Act, 2011 (As amended)

[28] The Claimant submits that Exhibit D1, the letter of resignation dated 9th March 2020, is inadmissible and possesses no evidential weight. This suit was commenced by complaint on 11th October 2019, which predates Exhibit D1. The document was made by the Defendant/Counterclaimant during the pendency of this suit. Section 83(3) of the Evidence Act 2011 renders inadmissible any statement made by a party to litigation after proceedings have commenced. Counsel cited NBC V. UBANI (2013) 56 NSCQR 283. That it is trite that documents made by a party to litigation or an interested person while proceedings are pending are not admissible. Counsel cited UTC V. LAWAL (2013) 56 NSCQR 1038; BARKWAY V. SOUTH WALES TRANSPORT CO LTD (1949) 1 KB 54. The only exceptions are documents made by a disinterested person or in the course of official duty, which do not apply here. The Claimant thus urges the Court to expunge Exhibit D1 and place no evidential value on it. He referred the Court to NWAOGU V. UTUMA (2013) 543 NSCQR 1782. 

CLAIMANT’S REPLY TO DEFENDANT/COUNTERCLAIMANT’S WRITTEN ADDRESS

[29] On admissibility of CW’s witness statement on oath: The Claimant submits the statement bears the endorsement of the Commissioner for Oaths at the National Industrial Court Registry Abuja dated 11th October 2019. The content of a document cannot be varied by oral evidence from the witness box. Citing UDO V. ESHIET (1994) 8 NWLR (PT. 363) 483; UBN LTD V. SAX (NIG) LTD (1994) 8 NWLR (PT. 361) 150. Claimant’s Counsel submitted that a statement regular on its face with Commissioner for Oaths, signature and stamp complies with the Evidence Act and Oaths Act. Thus, the document enjoys presumption of regularity under Sections 147 and 168(1) (2) of the Evidence Act. 

[30] It was also submitted that Administration of oaths is governed by the Oaths Act, not the Evidence Act and that Section 4(2) (a) (b) of the Oaths Act CAP O1 LFN 2004 provides that no irregularity in form invalidates official duties, Court proceedings, or renders evidence inadmissible. Further that, CW adopted his statement on oath in open Court and gave evidence on oath before this Court, which has authority to administer oaths under Section 10 of the Oaths Act. 

Addressing issue regarding ID number in Exhibit C2 (preliminary memo triggering investigation), it was submitted that the said exhibit must be read with Exhibits, C3, C4, C5, C7, C9, C10 and C11. That Exhibits C7 and C11 feature the Defendant’s name and ID 02339 prominently in relation to the fraud and an oral testimony cannot alter the written contents of those exhibits. 

[31] On Counterclaim without defence the claimant’s Counsel submitted that where the principal relief is declaratory, the burden of proof remains on the claimant even if no defence is filed. He cited WOME V. NIGER DELTA PETROLEUM RESOURCES LTD (2022) LPELR-58556(CA); IFEDIORA V. OKAFOR (2019) LPELR-49518(SC); OBE V. MTN (2021) LPELR-(SC) that unchallenged evidence must still be evaluated and found credible to sustain a claim. He cited AYENI V. STATE (2016) 65 NSCQR 734; GONZEE (NIG) LTD V. NIGERIAN EDUCATIONAL RESEARCH AND DEVELOPMENT COUNCIL (2005) 13 NWLR (PT. 943) 634. 

[32] Counsel further submitted that Exhibits D1, D2 and D4 are inadmissible and provide no evidential foundation for the Counterclaim. Thus, no credible evidence exists to sustain the Counterclaim. He relied on ABUBAKAR V. IBRAHIM (2022) LPELR-580303(CA); KOLOKO V. KWONTE (2020) LPELR-52195(CA). In conclusion, the Claimant urges the Court to enter judgment for the Claimant and dismiss the Counterclaim. 

REPLY ON POINTS OF LAW

[33] The Defendant/Counterclaimant replies that the Claimant’s final address seeks to salvage a case that is incompetent and lacking credible proof, as submissions cannot substitute for evidence.

[34] On Claimant’s Issue one Defendant’s Counsel submits that the authors of Exhibits C2, C3, C4, C5, C7, C9, C10, C11 did not testify before the Court and consequently carry no evidential weight. He cited SOKOTO V. INEC (2022) 3 NWLR (PT. 1818) 577. 

[35] In addition, he submits that there is no credible corroborative evidence linking the allegations in those reports to the Defendant. That the assertion that Ugochukwu Jude withdrew N2,500,000.00 using Exhibit C5 as a crony of the Defendant is unsupported by the record, as Ugochukwu was not called and no evidence links him or the transaction to the Defendant. The Defendant’s uncontroverted evidence is that he was not the only Funds Transfer Officer and that at least three approvals were required per transaction; an assertion which was not disproved.

[36] On Claimant’s Issue 2, Defendant submits that the Claimant’s abuse of process argument fails as Exhibit D4 dismissed the Counterclaimant’s claim for a specific sum of N2,467,750.00 (Two Million, Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira) per annum for failure to plead and strictly prove special damages. Such dismissal does not preclude a fresh claim for a sum capable of proof with credible evidence.

[37] On Claimant’s Issue 3 it was submitted that Exhibit D1 was not made in contemplation of litigation. The Defendant resigned on 9th March 2020 after Exhibit D4, where this Court held the purported dismissal was null for non-service, and declared him still an employee. The Claimant, having instituted this suit while the Defendant’s action was pending, cannot now complain of abuse of process or documents made during pendency. 

[38] On Claimant’s Issue 4, Defendant’s Counsel argued that Sections 59-65 and 173-174 of the Evidence Act 2011 permit reliance on previous judgments of a Court of coordinate jurisdiction not appealed against. That, a previous judgment may be relied on as a relevant fact in current proceedings. He cited CBN V. ARIBO (2018) 4 NWLR (PT. 1608) 130, LADIMEJI V. SALAMI (1998) 4 SCNJ 1, BUNYAN V. AKINGBOYE (2001) FWLR (PT. 41) 1977. Thus, issues such as non-service of dismissal letter were determined in Exhibit D4 and need not be proved again. Also that the objection to Exhibit D4 at address stage is belated where none was raised at stage of tendering.

[39] On Claimant’s Reply to Defendant’s Address learned Counsel to the Defendant submits that Evidence on oath before a Commissioner for Oaths is statutory, not procedural. Section 117(4) of the Evidence Act 2011 and Section 13 of the Oaths Act require the deponent to sign in the presence of an authorized person. He cited ASHIRU V. INEC (2020) 16 NWLR (PT. 1751) 416; FRANCIS & ORS V. ENERGIA COMPANY (NIG) LTD & ORS (2025) LPELR-81257(CA); ENENCHE V. MINISTER OF FCT & ANOR (2021) LPELR-52815(CA). Counsel argues that a deposition not sworn in presence of an authorised person is fundamentally defective and must be expunged.

[40] It was further submitted that where a Defendant offers no defence to a Counterclaim, the burden of proof becomes minimal. Thus Defendant/Counterclaimant has satisfied that threshold and now prays the Court to dismiss the Claimant’s claims in their entirety and grant all reliefs sought in the Counterclaim.

COURT’S DECISION

[41] I have carefully and painstakingly considered the pleadings in this suit and evidence adduced in support thereof and consequently distil the following issues for the just determination of this suit:

  1. Whether the claimant has proved its case by credible evidence and entitled to reliefs sought;
  2. Whether the Counterclaim herein constitute an abuse of Court process; 

Where it is found not to constitute abuse of Court process,

  1. Whether the Counterclaimant has proved entitlement to reliefs sought.

ISSUE ONE

Whether the claimant has proved its case by credible evidence and entitled to reliefs sought;

[42] The crux of the claimant’s case is that the Defendant took undue advantage of his role as the fund transfer officer at the Minna branch of the Defendant and fraudulently manipulated the account of a deceased customer of the Defendant and Niger State Public accounts. Consequently, the claimant has brought this suit seeking for damages for the loss that the alleged fraudulent act of the Defendant has caused it, for exemplary damages and post judgment interests.

[43] To determine the case of the claimant, it is first necessary to resolve the issue of Defendant’s culpability in respect of the allegation of fraud which is criminal offence. The law is trite that where a party alleges a crime in civil proceedings, the Court imposes a higher standard of proof. Section 135(1) of the Evidence Act 2011 mandates that where the commission of crime is directly an issue, it must be proved beyond reasonable doubt even in a civil case. See LARRY CURRY LTD. V. OSHO (2024) 8 NWLR (PT. 1940) 285 CHIDULO V. ATTANSEY (2020) 6 NWLR (PT 1719) 102@ 134 PARAS A-DOLALEYE V. TRUSTEES OF ECWA (2011) 2 NWLR (PT. 1230) 1 @ 23 PARA. F. AKINKUGBE V. E.H. (NIG) LTD (2008) 12 NWLR (PT. 1098) 375 @ 395, PARAS E-G.

[44] In proof of its case, the claimant tendered exhibits C1-C13. I have observed that the Defendant is challenging exhibits C2, C3, C4, C5, C7, C9, C10 and C11 on the ground that the makers did not testify before the Court and consequently did not undergo cross examination.

[45] This objection is clearly founded on the evidential rule against documentary hearsay. Documentary hearsay arises where a document is tendered in Court through a person other than the maker of such document, and the party relies on the document to prove the truth of its contents. Such evidence is ordinarily inadmissible because the absence of the maker deprives the opposing party of the opportunity to test the veracity of the evidence through cross examination. See SECTION 83 (1) of the EVIDENCE ACT. 

[46] However, this rule is not devoid of exceptions, one of such exceptions is the business records exception. The statement of accounts tendered by the claimant and marked exhibits C3, C4, C5, C9 and cheque book requisition marked exhibit (C10) are documents which were made in the ordinary course of business of the claimant. They are entries generated electronically and kept in the ordinary course of banking business. By virtue of section 83 read together with Section 41 of the Evidence Act 2011, these documents enjoy statutory exceptions to section 83 and are therefore admissible. I so hold.

[47] Exhibit C2, on the other hand is an internal memo which raised an alert detecting suspicious transactions. In my firm view Exhibit C2 was not tendered to prove the culpability of the Defendant but rather to establish that such alert was actually made on the date indicated. To that limited extent, the document is admissible not as hearsay but to prove the existence and making of the alert.

[48] With respect to the internal audit group report and internal memo from the human management department (exhibits C7 and C11 respectively), I have carefully examined these documents. It is evident that the purpose for tendering same is not only to establish that investigation was carried out but also to establish the facts and assertion that the Defendant is culpable for the alleged fraudulent transaction. 

[49] Where document is tendered to prove the truth of its contents, Section 83 of the Evidence Act requires that it be tendered by the maker, or by person with personal knowledge of the facts contained therein. This however is not the case in this circumstance. It is clear that CW1 is not maker of these documents and facts have not been asserted to suggest that he has personal knowledge of same. CW1 also admitted under cross examination not to be the maker of the documents. It is thus my finding that exhibits C7 and C11 constitute documentary hearsay. Having been inadvertently admitted, they are hereby expunged from records of this Court. I so hold.

[50] I have also observed that the Defendant challenges the witness statement on oath of CW1 on the ground that same was not deposed to before an authorised person in non-compliance with Section 112 of the Evidence Act. Now Section 4(2) of the Oaths Act 2004 states that no irregularity in the form in which an oath or affirmation is taken shall:

a. Invalidate the performance of official duties: or

b. Invalidate proceedings in any Court; or

c. Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.

[51] Also, the Supreme Court in ADEJUGBE V. ADULOJU (2022) 3 NWLR (PT. 1816) 158 PARA A while making reference to ANATOGU V. IWEKA II (1995) 8 NWLR (PT. 415) 547 held that even if a written statement was not made on oath or sworn at all, it would still be valid as the witness written statement intended to be given or given as evidence on oath in the proceedings.

[52] Flowing from above, it is my finding that even though CW1 admitted that his witness statement on oath was signed in his house, the fact that it was later countersigned by the commissioner of oaths of this Court in person of Ibrahim Abu Aminu, such is not fundamentally defective or without legal value as contended by the Defendant. It is for this foregoing reason that I find that the witness statement on oath of CW1 is competent, therefore, where necessary, probative value shall be attached thereto. Submissions of the Defendant in this regard are hereby discountenanced. I so hold.

[53] Addressing the substantive matter, the claimant asserts that the Defendant with staff ID 02339 served as Fund Transfer Officer at Paiko Branch Niger State. The claimant further asserts that it uncovered fraudulent transactions on Account No. 301/618559/110, NUBAN 0009378810, belonging to Ahmadu Hamisu Sirajo, a customer who died in 2008. According to the claimant its investigation revealed that the Defendant had diverted N29,519,544.62 (Twenty-Nine Million, Five Hundred and Nineteen Thousand, Five Hundred and Forty-Four Naira, Sixty-Two Kobo) into the deceased account from the Niger State Accountant-General’s account, Niger State Pension Board account, and the Claimant’s suspense accounts. It was further asserted that the Defendant withdrew the sum of N23, 018,196.39 (Twenty Three Million, Eighteen Thousand, One Hundred and Ninety-Six, Thirty-Nine Kobo) from the said account. The claimant also asserted that the Defendant admitted culpability and thereafter absconded while on suspension.

[54] As earlier stated in this judgment, these allegations are criminal in nature and therefore must be proved beyond reasonable doubt. See Section 135 (1) Evidence Act.

[55] I have carefully examined the evidence placed before me. Exhibit C2 is an alert of suspicious transactions on the account of Ahmadu Hamidu Sirajo, generated on 25th September 2014. In exhibit C2, the culprit was identified by staff id no. 9918. Consequent upon this alert, the Defendant herein was issued a letter of suspension (exhibit C6). A careful examination of exhibit C6 reveals an inconsistency. While exhibit C2 identified a staff member with staff id no. 9918, exhibit C6 alleges that the Defendant with Staff ID No. 02339 facilitated fraudulent transaction through the account of the deceased. Exhibit C6 further asserts that one Mr. Ugochukwu Jude confirmed that he was in connivance with the Defendant. Exhibit C6 further asserts that the withdrawals were carried out by the Defendant.

[56] I have also examined exhibits C3, C4, C5, C9, C10 and C13 and find that these documents standing alone do not establish any direct link between the Defendant and the alleged fraudulent transactions. 

[57] Assuming without conceding that exhibits C7 (internal audit group report) and C11 (internal memo from human capital management department) are admissible and possess probative value, I still find that both documents do not establish the allegation of fraud against the Defendant. 

[58] For the allegation against the Defendant to succeed, the claimant must adduce cogent evidence that directly support its assertions. For instance, the internal audit group report at page 3 of exhibit C7 alleges that the Defendant facilitated reactivation of Mr Ugochukwu Jude’s account and transferred the sum of N2,5000,000.00 (Two Million, Five Hundred Thousand Naira)   which Mr Jude later confirmed was transferred to the Defendant who in turn withdrew it. It was further asserted that withdrawal of the sum of 5,000,000 (Five Million Naira Only) was withdrawn through an electronic transfer processed by the Defendant. The report also alleged that the Defendant issued a cheque book for the deceased while he was relieving the customer service officer. Similar allegations were made in the findings of the human capital management department of the Defendant (exhibit C11).

[59] All of the foregoing assertions are, however, not supported by cogent or credible evidence. The findings and conclusions contained in the internal audit report and human capital management department (exhibits C7 and C11 respectively) are insufficient proof of the alleged fraudulent transactions. These documents only reflect opinion, conclusion or recommendations of the investigation panels. They do not constitute primary evidence of fraud.

[60] To prove fraudulent transactions, the law requires more cogent evidence such as the actual transaction mandates, debit or credit entries, beneficiary account details, CCTV footage or other source that directly establish and support the findings of fraud. Such evidence must also be linked to the alleged offender in this case the Defendant. Without tendering those underlying documents, the memo and report remain mere assertion and cannot sustain a finding of fraud on the required standard of proof. 

[61] In addition to the foregoing, while exhibit C6 states that the Defendant confirmed his culpability, the Defendant denied assertions of culpability and stated in paragraphs 7 and 8 of witness statement on oath that he was never involved in the fraudulent activities neither did he ever admit culpability.

[62] The standard of proof in criminal cases or civil cases with elements of crime is beyond reasonable doubt. This does not suggest that the proof must be with absolute certainty, rather it means that the proof leaves no reasonable doubt in the mind of a reasonable person. Proof beyond reasonable doubt means proof to a high degree of probability. It is not proof beyond all doubt. See ABUBAKAR V. STATE (2026) 8 NWLR (PT. 2044) 161, IGBOJI V. STATE (2025) 13 NWLR (PT. 2003) 439 @ 463 PARAS D-G. 

[63] In the present case, the claimant has failed to prove the assertion of fraud against the Defendant for the reasons stated above. No reasonable person having examined and weighed the evidence adduced by the Claimant would conclude that the Defendant’s culpability has been established without leaving room for doubt. The claimant relied on conclusions without producing cogent evidence that formed those conclusions that is insufficient to meet the standard required by Section 135 (1) of the Evidence Act 2011.

 It is for this reason that I find that the claimant has failed to establish its case of fraud against the Defendant and thus not entitled to reliefs sought. I so hold.

ISSUE TWO

Whether the Counterclaim herein constitute an abuse of Court process

[64] Learned Counsel to the claimant in his final written address hinged this challenge upon the ground that reliefs b and d in this Counterclaim are same with reliefs b and d in Suit No NICN/ABJ/183/2018 which claim payment of N2, 467,750.00 (Two Million, Four Hundred and Sixty-Seven, Seven Hundred and Fifty Naira) per annum as salaries and allowances from January 2014. According to Defendant to Counterclaim, these reliefs were dismissed by this Court in judgment in Suit No: NICN/ABJ/183/2018 delivered by Hon. Justice B.B. Kanyip PhD (President NICN) on 3rd March 2020. It was argued that the reliefs were dismissed, the Counterclaimant having failed to specifically plead and prove entitlement to special damages claimed as outstanding salaries and allowances.

[65] Learned Counsel to the Defendant to Counterclaim vehemently argued that this is an abuse of Court process as the Counter claimant is seeking reliefs that have already been dismissed by this Court.

[66] Sequel to the above, I have carefully compared reliefs b and d as contained in this present suit with reliefs b and d sought in suit no NICN/ABJ/183/2018. It is my finding that in Suit no NICN/ABJ/183/2018, the claimant sought for the payment of N2,467,750.00 (Two Million, Four Hundred and Sixty-Seven, Seven Hundred and Fifty Naira Only) being outstanding salaries and allowances from January 2014 till date of delivery of judgment. Whereas in this present suit the Counter claimant though not specific as to the amount claimed seeks payment of the outstanding salary from January 2014 to March 2020. 

[67] For clarity and proper comprehension, I find that it’s important to state that although the Counter claimant in this present suit, did not quantify the amount sought as was done in NICN/ABJ/183/2018, the claims are in substance identical. Both claims are for outstanding salaries and allowances from January 2014 till the date of judgment which is 3rd March 2020. 

[68] Having made that finding, the doctrine of res judicata and cause of action estoppel is applicable. The law is trite that once a Court of competent jurisdiction has determined a case and given final decision in an action between the same parties, on same cause of action, the Court becomes functus officio. See OMOKHAFE V. ESEKHOMO (1993) 8 NWLR (PT. 309) 58 @ 74 PARAS F-G, A.G. NASARAWA STATE V. A.G. PLATEAU STATE (2012) 10 NWLR (PT. 1309) 419 @ 465, PARA G, NSUDE V. NICHODEMUS (2025) 4 NWLR (PT. 1982) 253 @ 278, PARA A. Where a claim fails for lack of proof, that failure is a decision on merits, thus, cannot be relitigated. In this instance, the Court as can be seen in the judgment in NICN/ABJ/183/2018 (exhibit D4) had held that the claim for 2,467,750 (Two Million Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira) was special in nature and ought to be specially pleaded and proved. The claim for unpaid salaries and allowances failed in the previous suit because the Counter claimant did not lead specific evidence of his basic salary or how he arrived at the quantum of damages sought. This is a decision on the merits. A party cannot relitigate the same salary claims for the same period against the same employer; the dismissal of the Counterclaimant’s claims in NICN/ABJ/183/2018 which is same with this present suit operates as res judicata to a subsequent action on the same subject matter. It is therefore my finding that reliefs b and d constitute an abuse of Court’s process. I so hold.

[69] Once it becomes clear that an action constitutes an abuse of Court process, the Court has the power to and duty to dismiss it. See C.O.M. INC. V. COBHAN (2006) 15 NWLR (PT. 1002) 283 @ 303 PARAS E-F, HOMAN ENGR. CO. LTD V. U.W.S. LTD (2025) 6 NWLR (PT. 1987) 423 @ 447 PARAS A-D, COUNCIL OF LEGAL EDUCATION V. DANGE (2024) 13 NWLR (PT. 1955) 307 @ 331 PARAS B-D. In addition to this, an order of dismissal is appropriate where a plea of res judicata is upheld. See OLATUNJI II V. GOV. ONDO STATE (1998) 1 NWLR (PT. 533) 245.

[70] I must however state that claims a and c of the Counter claim are not affected by res judicata, as these claims relate to the dismissal of the Counter claimant which was not an issue before the Court in NICN/ABJ/183/2018. Res judicata only affects claims or issues that have been litigated between same parties and is not applicable to new claims. Where some heads of claim are caught up by res judicata and others are not, the Court will dismiss the offending claims and proceed on the unaffected claims. See NAFILA V. OLUWO (2004) 13 NWLR (PT. 891) 463 where the Court held that reliefs caught by the doctrine of res judicata cannot be allowed to stand, however where the reliefs are not caught, the reliefs will stand.

[71] Thus, it is incumbent for the Court to perform a surgical separation of reliefs b and d from the non-offending claims in this present suit. Accordingly, reliefs a and c are hereby sustained while reliefs b and d are dismissed. I so hold.

ISSUE THREE

Whether the Counterclaimant has proved entitlement to reliefs sought 

[72] Having determined the case of the claimant and having also sustained claims a and c, I am confronted with the duty to determine the validity or otherwise of the dismissal of the Counterclaimant by the Defendant to the Counter claim. To determine this question, recourse shall be made to the employee handbook (exhibit D5) which is the condition of service regulating this employment relationship. The law is settled that the test of whether a dismissal is proper is by determining whether it was carried out in conformity with laid down conditions in the terms of employment of the aggrieved employee.

[73] It is the case of the Counter claimant that he was not issued a query nor given opportunity to make representations in his defence and that this assertion was also confirmed in exhibit D4. Thus, he asserts that he remained an employee of the Defendant to Counter claim till 9th March 2020 when he tendered his resignation.

[74] In Nigeria, dismissal is the harshest penalty for misconduct and consequently must be done in strict compliance with laid down conditions and terms of service. It is noteworthy that the Defendant to Counter claim neglected to file a defence to this Counter claim thereby leaving assertions thereto unchallenged. The law is trite that where evidence before a trial Court is unchallenged as in this present case, the Court is duty bound to accept and act on it as it constitutes sufficient proof of a party’s claim; the onus of proof in this circumstance is satisfied on minimal proof, since there is nothing on the other side of the scale. See AMEH V. THE PEOPLE OF LAGOS STATE (2025) 12 NWLR (PT. 2000) 559, UZODINMA V. IHEDIOHA (2020) 5 NWLR (PT. 1718) 529, MOBIL OIL (NIGERIA) LTD V. NATIONAL OIL & CHEMICAL MARKETING CO. LTD (2000) 9 NWLR (PT. 671) 44 @ 52. However, it is noteworthy that the Counter Claimant will not be entitled to judgment in his favour merely because the Defendant to Counter claim failed to enter a defence. The Court will only be bound to accept unchallenged evidence where it is cogent and credible. See AREWA TEXTILES PLC V. FINETEX LTD (2003) 7 NWLR (PT. 819) 322. Thus, in this instance, the onus lies on the Counter Claimant to establish by leading credible and cogent evidence that it is entitled to reliefs sought as it is settled that the burden of proof rests on the party asserting a fact. See NITEL LTD V. OKEKE (2017) 9 NWLR (PT. 1571) 439 AT 462, OMISORE V. AREGBESOLA (2015) NWLR (PT. 1482) 1 AT 273, SECTIONS 131, 132, and 133 of the EVIDENCE ACT 2011.  

[75] Flowing from the above, the Counterclaimant has tendered the employee handbook (exhibit D5) and by virtue of paragraph 12.3.2 of the handbook, issuance of query which states the alleged offence and gives the alleged offending employee the opportunity to present his defence is mandatory.

[76] Paragraph 12.7.1. of the handbook specifically provides for the guidelines for termination of employment to wit:

  1. Be satisfied that a prima facie case has been established against the staff.
  2. Notify the concerned employee in writing the grounds upon which he/she is being considered for disciplinary action.
  3. Give the erring staff opportunity to defend himself/herself in writing to the allegations levelled against him/her.
  4. Give the concerned employee whose case is being considered the opportunity to appear before the disciplinary committee and or executive management committee 

[77] It is thus glaring that the failure of the Defendant to Counter claim to issue the Counter claimant query and afford him opportunity to defend himself is in breach of the condition of service. Indeed, this inaction amounts to a breach of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which guarantees the right to fair hearing and principle of audi altarem part        em.

[78] The settled principle guiding dismissal of an employee is that while an employer retains the right to terminate the employment of his servant, the employer is under the duty to follow due process. This duty applies even in case of summary dismissal. It therefore follows that there is no acceptable justification for an employer to jettison laid down terms and conditions of service in the course of severing an employment relationship. See OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR PT. 9 @ 599.

[79] It is on this score that I find and hold that the dismissal of the Counterclaimant by the Defendant to Counterclaim is wrongful, having been done without recourse to extant provisions of the constitution and employee handbook.

[80] Nonetheless, the employment relationship between parties in this suit is that of a master and servant and it is trite that the Court cannot grant order nullifying wrongful dismissal in a master-servant relationship. In such employment, wrongful dismissal attracts damages. Thus, the remedy in this instance is award of damages. See DAMISA V. U.B.A. (2025) 19 NWLR (PT. 2021) 409 @ 425, ADEWUNMI V. NIG. EAGLE FLOURMILLS (2014) 14 NWLR (PT. 1428) 443@ 470, PARAS E-F, 471, PARAS H-A.

[81] I am convinced that this principle forms the basis upon which claims b and d were erected. However, I have earlier held that these claims have already been litigated and determined in NICN/ABJ/183/2019. I am therefore functus officio and cannot make any findings or pronouncement in that regard.

[82] Assuming without conceding that my finding on res judicata is incorrect, I must state that the Counter claimant has failed to plead material facts in support of his claim for outstanding salary and allowances. Neither has he furnished the Court with any evidence, oral or documentary to assist the Court in determining the quantum of damages. The Court cannot award damages in vacuo. I so hold.

[83] For all the reasons stated above, the claimant’s case fails in its entirety and hereby dismissed.

The Counter claim succeeds partially and is determined as follows:

Relief a succeeds partially and is hereby declared that the dismissal of the Counter claimant by the Defendant to Counter claimant is wrongful, the Defendant to Counter claimant having failed to comply with provisions of the employee handbook.

Reliefs b, c, d, e fail.

Judgment is entered accordingly.

 

                                                ………………………………………

Hon. Justice R.B. Haastrup

JUDGE