IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 2^nd day of May, 2024                          SUIT NO:   NICN/PHC/123/2022

BETWEEN:

MISS TONYE BRIGGS---------------------------------CLAIMANT

AND

1. MRS. UCHENNA EZE

(C.E.O OF EUI CENTRE LIMITED)

2. EUI CENTRE LIMITED

3. MS. ANAESTHESIA ARISA                                                            

(ADMINISTRATIVE MANAGER OF

EUI CENTRE LIMITED)

4. MS. VIVIENNE

(STAFF OF EUI CENTRE LIMITED)--------------------DEFENDANTS

Representations:

Boma N.T Briggs with S.S.  Idogun for the Claimant.

M.I. Onah with O.C.  Udensi for the Defendant.

Judgment.

This suit was commenced by way of a General Form of Complaint filed on the 13^th of September, 2022 along with a verifying affidavit, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendants are:

1.     A DECLARATION that the purported termination of the appointment of the Claimant by the Defendants by an undated Letter placed on her desk about 8pm on the 18^th day of July 2022 is null, void and of no effect whatsoever.

2.     AN ORDER SETTING ASIDE the undated purported Letter of Termination placed on the desk of the Claimant about 8pm on Monday the 18^th of July 2022 to take effect on same day.

3.     AN ORDER directing the Defendants to pay the Claimant her Salary for the Month of July 2022 and continuously until the determination of this suit.

4.     AN ORDER directing the Defendants to immediately withdraw both the undated Letter of Warning placed on her desk about 8pm on Sunday, the 17^th of July 2022 and the undated Letter of Termination also dropped on her desk about 8pm on Monday the 18^th day of July 2022.

5.     THE SUM OF N10,000,000.00 (TEN MILLION NAIRA) as General Damages for wrongful termination of the appointment of the Claimant and the trauma /distress etc.. she suffered after the receipt of the voice message from the 4^th Defendant acting on behalf of the 1^st Defendant

Reacting to the complaint and statement of facts, the Defendants on the 26^th of September, 2022 filed a statement of defence along with witness statement on oath, list of witnesses, list of documents and copies of the said documents. In the same vein, the 2^nd Defendant presented a counter-claim.

Accordingly, the Claimant on the 11^th of October, 2022 filed a reply to the Defendants' statement of defence and a defence to the 2^nd Defendant's counter claim. The 2^nd Defendant in turn, filed a reply to the defence on the 21^st of October, 2022.

Trial commenced on the 30^th of May, 2023 and the Claimant in opening her case was herself called as the sole witness as CW1 upon which she adopted her witness statements on oath marked as C1. Through the said CW1, 10 documents were tendered in evidence and admitted as Exhibits C2 – C11 with exhibits C6, C9 and C10 being admitted under protest. .

Arising from the complaint and statement of fact, the case of the Claimant is that she diligently served the Defendants and as a result of her sterling performances, she was promoted to the Position of Head/Human Resources/Social Media / PA to the 1^st and 2^nd Defendants. She averred that the moment the 1st Defendant brought a Consultant from Lagos to train the Staff/Workers of the 2nd Defendant, she became an object of concerted and pre-determined attacks in order to frustrate her out of her job. Claimant averred that she was eventually served with a warning letter on the 17^th of July, 2022 and a letter of termination on the 18^th July, 2022.

Upon cross examination, CW1 admitted that she was issued with an employee handbook which she read and understood while maintaining that the total amount indicated as breakdown of expenses as outlined in paragraph 10 of the additional statement on oath is N10, 000, 000. She equally admitted receiving N2million to be applied as Salary but it is incorrect that the cumulative salary was N1.9million because she was instructed by the boss via whatsapp to double everyone's salary. CW1 also admitted that she disbursed salary through her personal account. CW1 also confirmed that the 1st Defendant did not ask for explanation on how funds were spent upon return and insisted that it is false to state that it was the outcry for unpaid salaries that prompted investigations while stating that all funds were appropriated according to instructions. She further averred that it is not all staff that get double salary. CW1 stated that she was stripped of everything belonging to the Defendant and taken out of the facility.

Upon discharge of CW1, Claimant closed her case while the Defendants opened theirs by calling one witness in person of Vivienne Oku James as DW1 who adopted her witness statement on oath which was marked as D1. Through DW1, 8 documents were tendered and admitted in evidence as Exhibits D2 to D9 respectively.

Arising from the statement of defence, the case of the Defendant is that while the Claimant was employed as a front desk/social media influencer of the 2nd Defendant effective from February 1, 2021 via an employment letter dated January 29, 2021. The Defendant averred further that so soon after  the review of the Claimant`s employment, the Claimant became arrogant, callous and power drunk and started exhibiting series of unethical conducts and acts inimical to the core values of the 2^nd Defendant. The Defendant stated that when the 1st Defendant travelled out of the country in December 2021, some sums of monies were paid into the Claimant's account for official disbursements including salaries but when the 1st Defendant returned in February, 2022, the 1st Defendant was faced with complaints of non-payment of salaries which led to investigation and discovery of financial fraud by the Claimant which led to the termination of her employment.

Upon cross examination of DW1, she posited that she is the 4^th Defendant and admitted that after the termination of the Claimant’s employment, she sent a message to return the iphone. DW1 admitted that she said the Claimant stole the phone because after the phone was given to her to transfer information contained therein, she said she has to take it to Garrison but she never returned with it but instead, she gave DW1 the old iPhone 7. DW1 also stated that the dates in relation to the phone was mixed up but the Claimant started stealing after her promotion while also positing that she can't remember the date the warning letter was issued and also admitted that the exhibit D9 is undated, signed by the 3rd Defendant and issued on the 18th of July 2022 to the Claimant. DW1 added that the 3rd Defendant and herself stripped the Claimant of the 2nd Defendant's properties while admitting that the 1st Defendant brings gifts for people when she travels.

Upon the discharge of DW1, matter was adjourned for adoption of Final Written address and arising from the Defendants' final address filed on the 9^th of August, 2023, counsel to the Defendants, M.I. Onah Esq., formulated five issues for determination to wit:

(1)      Whether from the facts and circumstances of the case the termination of the Claimant’s employment by the 2nd Defendant is valid.

(2)      Whether the Claimant is entitled to her claims as formulated in the originating processes i.e. complaint and statement of facts considering the evidence presented by the parties in this case.

(3)      Whether having regards to the facts of this case, the joinder of the 1st, 3rd and 4th Defendants in this suit is not wrongful and improper.

(4)      Whether this Honourable Court can rely on pieces of evidence that do not pass the test of admissibility in arriving at its decision in this suit.

(5)      Whether the 2nd Defendant Counter Claimant is entitled to the reliefs sought in its counter claim.

In arguing issue one, counsel posited that whenever an issue arises as to whether or not the dismissal of an employee by his employer is proper, the court will have to consider the term of contract between the employee and the employer as may be embodied in their terms of contract or condition of service to determine   whether or not the Defendant complied with the terms between them before exercising its power of dismissal. Counsel cited the case of Kabelmetal Nig. Ltd -vs- Gabriel Ativie (2001) FWLR Pt. 66 P. 662 at 675.

Counsel added that by the content of exhibit D3, which is the 2^nd Defendant/Counter Claimant’s Employee Handbook and which can be said to be the terms of service between the Claimant and the 2^nd Defendant/Counter Claimant, the 2^nd Defendant/Counter Claimant can exercise its power of dismissal against any employee who is guilty of conducts prohibited by the 2^nd Defendant/Counter Claimant policy. Counsel referred to clause 20 at pages 23 to 25. Counsel also cited the cases of Yusuf Vs U.B.N Ltd. (1996) 6 NWLR pt. 457 p. 632 at 648, Abomeli vs N.R.C. (1995)1 NWLR pt. 372 p. 451 at 461. See also Nwobosi -vs- A.C.B (1995)6 NWLR pt. 404 p. 658 at 685.

Counsel argued that the misappropriation made by the Claimant in respect of the fund transferred to her for running of the 2^nd Defendant/Counter Claimant’s business is enough to erode the confidence of the 2^nd Defendant in the Claimant and same qualifies as a misconduct that can be meted out with instant termination of the Claimant’s employment.

Counsel argued in the alternative that an employer has the unfettered right to terminate the employment of an employee for whatever reason or for no reason howsoever. Counsel cited the cases of Ayorinde vs Oyo State Government (2007) All FWLR pt. 356 p. 709 at 722 – 723; Isieveore vs NEPA (2002) FWLR pt. p. 398, Aforishe v NGC Ltd (2018) 2 NWLR Part 1602 Page 35 at 61 para A-C, Obanye v Union Bank Plc (2018) 17 NWLR Part 1648 page 375 at 389 para F-G.

Counsel also contended that in the unlikely event that this Honourable Court holds that notice is required before the employment of the Claimant can be determined, the remedy available to the employee is the monetary compensation that should have been paid in lieu of notice and such failure to give the required notice, no other remedy or damages than what should have been paid in lieu of notice. Counsel cited the case of Union Bank of Nigeria vs Nwachukwu (2000) FWLR pt. 6 p. 986 at 994 and Ayorinde  vs Oyo State Government (Supra) at 772.

In arguing issue two, counsel submitted that relief C of the Claimant’s statement of facts has no basis in law because the Claimant, having been dismissed from the employment with the 2^nd Defendant, she is not entitled to any monetary or compensatory relief from the 2^nd Defendant/Counter Clamant.

Counsel added that there is no iota of evidence presented by the Claimant in support of relief C as formulated and nothing to justify how she came about the claim, being that claim for specific and deemed liquidated sums of money are in form of special damages that needed strict proof. Counsel cited the cases of A. S. E. S. A v. Ekwenem (2009) All FWLR pt. 491 pg. 838 @ 867 – 869 and Nzeribe v Dave Engr. Co. Ltd. (1994)8 NWLR pt. 361 pg. 124 @ 140.

Counsel also posited that the Claimant has not proffered any evidence before this court that she is entitled to damages sought and that once an employer terminates the employment of the employee, his claim for damages for termination of appointment becomes fallacious as she is in effect saying she is still in employment by virtue of the claim and we submit that will amount to court imposing an employee on an unwilling employer. Counsel cited the case of WAEC vs Obisesan (2009) All FWLR pt. 484 p. 1619 at 1631.

In arguing issue three, counsel submitted that it is a settled position of the law that it is the cause of action as endorsed on the writ of summons that determines proper parties before the court. Counsel cited the case of  AG Federation v. AG Abia State & Ors (2021) LPELR-24862 (SC).

Counsel contended thereon that a critical analysis of the Claimant’s case shows that at all material times, the Claimant was employed by the 2^nd Defendant and not the 1^st, 3^rd or 4^th Defendant and from the evidence of the Claimant and exhibit “C2”, the Claimant had no privity of contract with the 1^st, 3^rd and 4^th Defendants, while it is also clear that the 1^st, 3^rd and 4^th Defendants in this suit were at the material times employees of the 2^nd Defendants/Counter Claimants, thus agents of a disclosed principal.

In arguing issue four, counsel posited that it is of primary and critical importance that a document used in litigation must not only be relevant, but should also be admissible. Counsel in this regard cited the case of Anyaebosi  v. RT Brisco (Nig) Ltd (1987) LPELR-506 (SC).

Counsel argued further that exhibits C6, C9, and C10 are no doubt computer generated evidence which requires certain foundation to be laid and certificate of compliance with Section 84 of the Evidence Act, 2011 to be admissible in evidence and the Claimant having failed to satisfy the requirement of the law regarding same, the pieces of evidence are liable to be expunged from the records of the court. Counsel cited the case of M.L Mande Ent. Ltd.  v. The Registered Trustees of Seven Days Adventist Church in Nig. & Ors (2022) LPELR-57435 (CA).

Counsel added that the Claimant filed the instant suit which was served on the Defendants in September 2022 without accompanying the complaint with exhibit C6 in line with Order 3 Rule 11 of the Rules of this Honourable Court hence same should be expunged.

Counsel also added that no foundation was laid for tendering Exhibit C11 and that the fact that no objection was raised on the admissibility of Exhibit C11 (described as Bank Statement of account of the Claimant), does not prevent this Honourable Court from expunging it from its record and not rely on it in this matter. Counsel cited the case of Aminu & Ors. Vs.  Hassan & Ors (Electronic Citation) LER (2014) SC.44/2002.

In arguing issue five, counsel posited that the law is that a counter claim is a separate and independent action which has to be instituted in accordance with the Rules of Court. Counsel added that the fate of a counter claim being an independent action does not depend upon the outcome of the Plaintiff’s claim. Counsel cited the case of Ogli Oko Memorial Farms & Anor v. NACB LTD (2008) LPELR-2306 (SC) and Chollom v. Elder Gideon Efajemue Prospectus Ltd & Anor. (2018) LPELR-47230 (CA).

Counsel contended that the Claimant has not placed any material fact before this Honorable Court to substantiate her position that the Iphone 11 Pro Max (2^nd Defendant/Counter Claimant’s customer care line) was gifted to her by the 1^st Defendant.

Counsel also argued that Exhibit D8 prepared by the Claimant shows that of all the monies the 1^st Defendant transferred to the Claimant on behalf of the 2^nd Defendant for the running of the 2^nd Defendant/Counter Claimant’s business cumulatively amounting to the sum of N 10,472,100.00, the Claimant only spent the sum of N 1,226,450.00 thereby leaving the sum of N 9,245,650.00 unaccounted for.

Counsel added that while the Claimant posited that she received the sum of N2,902,000.00 (Two Million, Nine Hundred and Two Thousand Naira) on December 9, 2021 which she purportedly paid out as the 2^nd Defendant/ Counter Claimant`s staff salary on December 14, 2021, the totality of the salary purportedly paid out by the Claimant as the 2<sup>nd</sup> Defendant/Counter Claimant`s staff salary on the said date as evident in Exhibit C11 is the total sum of N2,040,000.00 (Two Million, Forty Thousand Naira), leaving an unaccounted balance of N862,000.00  while another sum of N200,000.00 (Two Hundred Thousand Naira) she received on December 7, 2021 was not completely accounted for.

Counsel concluded by urging the court to dismiss the case of the Claimant in its entirety with commensurate cost in favour of the Defendants while granting the Counter Claim of the 2^nd Defendant as prayed.

Reacting to the address of the Defendant, Claimant filed her final address on the 28^th of August, 2023 and arising therefrom, counsel to the Claimant formulated four issues for determination to wit:

i)                  Whether the termination of the appointment of the Claimant by the Defendants vide an undated Letter of Termination was lawful and valid.

ii)                Whether the 2^nd Defendant / Counter Claimant have proved its case against the Claimant / Defendant to the Counter Claim.

iii)             Whether this Honourable Court can admit in evidence the Claimant’s electronically generated documents without a certificate of compliance.

iv)             Whether the Claimant has proved her case, to entitle her to be granted the reliefs she sought in this suit.

In arguing issue one, counsel submitted that the Defendants through the 4^th Defendant (DW1) admitted under Cross Examination that Exhibits C4/D8 (the Letter of Warning) and C5/D9 (the Letter of Termination) were undated. Counsel added that the said Exhibits C4/D8 and C5/D9 are worthless (invalid) documents in their form as undated documents, and thus have no probative value. Counsel cited the case of OLUWARANTI VS. SONOLA & ANOR (2022) LPELR – 57839 (CA).

In arguing issue two, counsel contended that the Defendants stated in their pleadings and in DW1’s Statement on Oath that the Claimant stole and sold 2^nd Defendant’s 1Phone in March, 2021 and under Cross Examination, DW1 stated that she was employed and started work in 2^nd Defendant’s company in April. 1^st 2021 while the same 1Phone DW1 claimed was given to her by the 1^st Defendant in February 2022 was the same phone stolen and sold in March 2021. Counsel posited that this amounted to approbation and reprobation and that Defendant are bound by their pleadings. Counsel cited the case of ACHONU VS. OKUWOBI (2017) LPELR – 42102 (SC).

Counsel equally submitted that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt and the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it.

In arguing issue three, counsel submitted that where the person in the witness box is directly involved in the operation of the computer, there will be no need for a production of a certificate. Counsel relied on the case of BRILA ENERGY LTD VS. FRN (2018) LPELR – 43926 (CA).

Counsel argued that Exhibits C9(a), C9(b) and C10), were pleaded, listed and frontloaded as required by the Rules of this Honourable Court and that the Documents contained communications between the 1^st Defendant and the Claimant concerning the administration of the 2^nd Defendant Company, whilst the 1^st Defendant travelled abroad.

With regards to Exhibit C6, counsel posited that the Voice Recording of 4^th Defendant (D.W.1) was pleaded, the contents were already known and admitted by her during Cross Examination and it was served on the Defendants’ Counsel before this Suit was mentioned and trial commenced.

In arguing issue four, counsel posited that the Claimant has proven beyond reasonable doubt that she is innocent of the spurious allegations leveled against her by the Defendants. Counsel added that the Claimant stated and restated that she was never given or served any written query for any crime committed against the 2^nd Defendant and t hat every money transferred to her by the 1^st Defendant, were disbursed as instructed and that the IPhone was an unsolicited gift from the 1^st Defendant.

Counsel concluded by urging the court to hold that the Claimant is entitled to Claims/Reliefs she is seeking from this Honourable Court and all the ancillary claims made against the Defendants and also to dismiss the 2^nd Defendant’s Counter Claim with substantial cost for lack of merit.

In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination of this suit by this court are to wit:

1.     Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.

Before resolving the foregoing issue, it is imperative to foremost resolve the status of Exhibits C6, C9 and C10 which were admitted under protest while being tendered through CW1.

With regards to the said Exhibit C6, C9 and C10, Counsel to the Defendant contended that the documents were not frontloaded in accordance with the Rules of this Court and that foundation was not laid in accordance with section 84 of the Evidence Act, 2011.

Counsel to the Claimant contended that the documents are relevant, and were pleaded and frontloaded. Counsel added that Exhibit C6 was served on the Defendant before this case was mentioned.

Bearing the foregoing in mind, I have taken a look at the exhibits in question and find that Exhibit C6 is an audio CD, while Exhibit C9 and C10 are respectively SMS and WhatsApp chat. From the list of Documents filed before this court, I find that document listed as no.5 is voice recorded message of 4^th Defendant while no.8 is SMS text Message sent by the 1^st Defendant to the Claimant’s counsel. Copies of these two documents were equally annexed to the complaint, although the document tendered as number 8 on the list seem different from that which was pleaded.

With regards to Exhibit C10, same was frontloaded alongside the Claimant’s reply to the Defendant’s statement of defence arising from an additional list of document filed on 11^th October, 2022.

What the foregoing means is that from the records of this court, the documents in question were duly pleaded and frontloaded. Even if there was no frontloading, I must reiterate that the court has advocated against rejection of document on the basis of same not being frontloaded. The court in the case of OGBORU V. UDUAGHAN (2011) 2 NWLR 538 held that:

“…there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice.” PER DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G).

That said, the next issue is with regards to compliance with section 84 of the Evidence Act, upon which counsel to the Defendant contended that the said documents are computer generated. In this regard, I reckon that counsel to the Claimant contended that the documents are relevant to the issue in dispute as they were downloaded and presented by the Claimant herself.

Bering the foregoing, I must state that it is without doubt that the provision of section 84 of the Evidence Act regulates computer generated evidence. However, I have taken a consideration of the nature of the documents vis-à-vis the issues in dispute between the parties and find that it will be in the interest of justice to invoke the provision of section 12(2) (b) of the National Industrial Court Act, 2006 which provides to the effect that this court can depart from the provisions of the Evidence Act in the interest of justice.

Consequently, upon the consideration of the relevance of the documents in question, I find it just to depart from the provision of the Evidence Act in this instance and to accordingly admit the said Exhibit C6, C9 and C10 in evidence. This position equally applies to Exhibit C11 which counsel to the Defendant for the first time objected to through his final address on the same ground as Exhibits C6, C9 and C10.  For avoidance of doubt, the objections on the admissibility of Exhibits C6, C9 C10 and C11 are hereby overruled. The said exhibits are accordingly admitted in evidence.    

Also of importance to be resolved before hand is the propriety of joining the 1^st 3^rd and 4^th Defendants to this suit as contended by counsel to the Defendant to the effect that at all material times, the Claimant was employed by the 2^nd Defendant and not the 1^st, 3^rd or 4^th who were also employees of the 2^nd Defendant and accordingly, agents of a disclosed principal.

Counsel to the Claimant proffered no argument in response to the contention. However, I have considered the grouse of the counsel to the Defendant and I find it imperative to restate the position of the law on the various categories of party to a suit. In this regard, the definition of the various class of parties was provided in ABUBAKAR DUDU MOTORS & ANOR v.KACHIA  (2016) LPELR-40228(CA) where the court held thus:

"...who is a proper, or desirable or necessary party who ought to be joined for the effective and effectual determination of a dispute in a case or suit. In Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that, proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. Green v. Green (1987) 3 NWLR (Pt. 61) 480. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom, the whole claim cannot be effectually and completely determined. "Per BDLIYA, J.C.A. (Pp. 10-11)

Arising from the foregoing, I reckon that indeed the 2^nd Defendant is the employer of the Claimant as averred, however, the Claimant has personal grouse of actions with the other Defendants which is equally necessary and proper that they should be added for the sake of establishing the facts alleged against them. For instance, there is an averment that the 4^th Defendant, through the directive of the 1^st Defendant, issued serious threatening message to the Claimant (See paragraph 6 of the Statement of Fact). With such facts, it becomes proper to add the other defendants who can defend such allegations so that such issues can be effectively determined when it becomes necessary to do so.

In the light of the foregoing, I must state clearly without much ado, that the 1^st, 3^rd and 4^th Defendants are proper parties as there are good reason for joining them and that the contention on the propriety of joining the 1^st, 3^rd and 4^th Defendants as contended by counsel to the Defendants lacks merit and same is accordingly dismissed.  

I now turn to the main issue which is in relation to the reliefs sought by the Claimant against the Defendants. Foremost in this regard, it must be reckoned that the burden of proving that a party is entitled to a declaration rests on the party who seeks the said declaration and it is discharged on the strength of the claimant’s case without recourse to the weakness of that of the Defendant. In this wise, the court in the case of MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929(SC) held that:

"I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373"PER FABIYI, J.S.C

The clarity on the foregoing position is imperative in view of the fact that the primary relief sought by the Claimant is a declaratory relief which seeks for this court to declare that the purported termination of the appointment of the Claimant by the Defendants by an undated Letter placed on her desk about 8pm on the 18^th day of July 2022 is null, void and of no effect whatsoever.

Upon a consideration of the foregoing relief, I must also posit unequivocally that the position of the law is clear to the effect that where the employment between parties is not one with statutory flavor, a termination of same without complying with the terms of employment can only be declared as wrongful rather than being null and void.  For avoidance of doubt, the court in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:

“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585." Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras. B-F).

The instant employment before the court clearly shows that it is not one governed by statute, hence, whatever infraction that it may be that the Claimant is complaining about cannot amount to a declaration that the termination is null and void but merely to be declared as wrongful.  Also, it should be noted that from the foregoing authority, no reinstatement nor order for payment of arrears of salaries can arise from such wrongful termination.

That said, I reckon that the basis upon which the claimant sought the reliefs before this court in highlight is that following the 2^nd Defendant’s engagement of a consultant from Lagos, she became subjected to predetermined attacks and on the 17^th of July, 2022 she was issued an undated letter of warning while on the 18^th of July, 2022, she resumed and continued work till about 8pm when she saw an undated letter with the title letter of termination without any query nor compliance with provision/procedure/process in the extant labour laws for interrogating, investigating and discipline.

I reckon particularly that counsel to the Claimant through the final written address contended that the warning and termination letters are worthless as they are undated and accordingly have no probative value.

I must foremost state at this juncture that it is incongruous that the Claimant who tendered the documents, is also the one contending that the document have no probative value. That notwithstanding, I find it apposite to consider the letter of termination in question which was admitted as Exhibit C5 and upon a perusal of same, I find that  although the letter is undated, the 5^th paragraph of the said letter reads that: “This termination is effective 18^th July, 2022”.

What this means is that arising from the letter, it is not unbeknownst to the Claimant, the effective date of the termination issued to her. In addition to the foregoing, I find it apposite to state that the complete position of the law is that an undated document will only be worthless if the date of the authorship is in question or relevant. In this regard, the court in the case of MARGIF V. LP & ORS  (2023) LPELR-59776(CA) (Pp. 34 paras. D) held that:

"The law is settled that an unsigned or undated document is a worthless document and lacking in evidential value particularly if the date of its authorship is directly in issue and relevant at a trial." Per GUMEL ,JCA (P. 34, paras. D-E) (emphasis mine).

In the instant case, it is crystal clear that the date of authorship of the letter of termination issued to the Claimant is not in question, hence, it makes no difference whether or not the letter of termination was undated since it clearly communicated to the Claimant that her employment stands terminated on the 18^th of July, 2022.

Having said that, the question that begs most importantly for answer is whether the termination in itself is wrongful. As a matter of fact, I reckon that arising from the letter, there was an interchangeable use of dismissal and termination as can be seen in paragraphs 1, 4 and 5 of the said letter which reads thus:

The management of EUI CENTER LIMITED regretfully informs you that you have been dismissed and your service is no longer needed

Even though you have been summarily dismissed, we expect also full cooperation with the ongoing investigation.

This termination is effective 18^th July, 2022

(emphasis mine).

In the light of the foregoing, it can be taken that the word termination used by Claimant in the relief sought can also be taken as dismissal. In doing so, I reckon that the Claimant contended that she was not accorded any query in relation to the basis upon which her employment was terminated.

Upon the contention, I reckon that the Defendant on their part posited to the effect that what led to the Claimant’s employment being terminated was that sometime in December 2021, the Claimant committed fraud arising from certain sum of money which the 1^st Defendant transferred to her for the business including staff salaries which the Claimant misappropriated. The Defendants posited that the 1^st Defendant discovered same when she returned to the country in February 2022.  The Defendant also stated that the undated letter of warning was long issued to the Claimant before the letter of termination but the Claimant treated same with ignominy.

Bearing the foregoing in mind, what is evident before the court is that the reason why the Claimant was dismissed was clearly stated in Exhibit C5 as paragraph 2 reads that: “This decision was reached due to several complaints of fraudulent, unexplainable transaction, insubordination, and gross mistreatment of staff and clients of the organization”.

In the light of the foregoing, it is imperative to state that rightly so, an employer has the power to dismiss an employee for acts considered to be an infraction to the organization. However, the dismissal should not be done without the courtesy of fair hearing accorded to the employee. In this regard, the court in the case of AVRE V. NIPOST (2014) LPELR-22629(CA)  (Pp. 36-38 paras. B) held that:

"The law is that ordinarily a master is entitled to dismiss his servant for good or bad reasons or for no reason at all; that where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; that where a contract of employment had been properly terminated, intention or motive for doing so becomes totally irrelevant; and that where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct. See the following authorities - Nigerian Oil Mills Ltd. V. Daura (2000) 1 NWLR (Pt. 639) 78, Arinze V. First Bank (2000) 1 NWLR (Pt. 639) 78; UzohoV. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 627 and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632, where the Supreme Court held - "Before an employee can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime.

Bearing the foregoing authority in mind, I have evaluated the entire facts alleged by the Defendants and I do not find any fact suggesting that the Claimant was accorded the opportunity to explain her side of the story. Even the warning letter issued to the Claimant was not preceded by a query. As contended by the Claimant, there is no evidence of a query issued to the Claimant asking for explanation on the allegations for which she was dismissed. I understand that the Defendants have tendered several documents in attempt to establish allegation of fraud, however, the documents are of no significance in this regard as a finding or otherwise, of fraud, will not change the fact that the Claimant has been dismissed without fair hearing.

It is in the light of the foregoing finding that I shall consider the reliefs sought. Reliefs one is for:  “A DECLARATION that the purported termination of the appointment of the Claimant by the Defendants by an undated Letter placed on her desk about 8pm on the 18^th day of July 2022 is null, void and of no effect whatsoever”.

In considering relief one, while I had just concluded that the Claimant was not accorded fair hearing before being issued the letter with which she was summarily dismissed, it is imperative to mention that I had earlier stated the position of the law in relation to termination of employment that is not with statutory flavor. What this in effect means is that the termination of the Claimant’s employment cannot be declared null and void but merely wrongful.

Accordingly, relief one is granted to the effect that this court makes a declaration that the termination of the appointment of the Claimant by the Defendants by an undated Letter placed on her desk about 8pm on the 18^th day of July 2022 is wrongful.

Relief two and four are for “AN ORDER SETTING ASIDE the undated purported Letter of Termination placed on the desk of the Claimant about 8pm on Monday the 18^th of July 2022 to take effect on same day”.

And

“AN ORDER directing the Defendants to immediately withdraw both the undated Letter of Warning placed on her desk about 8pm on Sunday, the 17^th of July 2022 and the undated Letter of Termination also dropped on her desk about 8pm on Monday the 18^th day of July 2022”.

With regards to the said reliefs, it is unclear if the letters in question are to be set aside and withdrawn simply because they are undated or because they were placed on the Claimant’s desk. That notwithstanding I must say that in the light of the clear position of the law that the termination of an employment which is not one with statutory flavor cannot be declared null and void, coupled with the settled principle that under common law employment, an employee cannot be imposed on an unwilling employer, there is no basis for setting aside or withdrawing the letters written and issued to the Claimant by the Defendants.

Consequently, reliefs two and four are accordingly refused.

Relief three is for “AN ORDER directing the Defendants to pay the Claimant her Salary for the Month of July 2022 and continuously until the determination of this suit”.

In the same vein, it is evidently clear that the Claimant knew from the 18^th of July 2022 that her services were no longer needed by the Defendants and the Claimant has not been providing any service for the Defendants since the said July 2022.

There is no gainsaying that the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936. According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’ instead of salary and defines wages thus:

"wages" means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

In addition, the position of the law as expoused in BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (supra), is clear to all and sundry that the Claimant cannot claim arrears of salaries nor for salaries that were not earned, since her employment is not one with statutory flavor and since she has not provided work for the Defendants since July, 2022. What the Claimant can only seek for as a remedy for the infraction of wrongful dismissal is damages.

Consequently, there is no basis for the grant of relief three and same is accordingly refused.

Relief 5 is for “THE SUM OF N10,000,000.00 (TEN MILLION NAIRA) as General Damages for wrongful termination of the appointment of the Claimant and the trauma / distress etc.. she suffered after the receipt of the voice message from the 4^th Defendant acting on behalf of the 1^st Defendant”

In considering the foregoing relief, it is evident that the basis upon which the Claimant is seeking for general damages are that her employment was wrongfully terminated and that she suffered damages following receipt of a voice message from the 4^th Defendant.

While I had earlier found and declared that the termination/dismissal of the Claimant from employment was wrongful in the sense that she was not accorded fair hearing, there is no scintilla of proof of a wrong suffered arising from the voice message presented via exhibit C6, a compact CD with a 1kb content which did not produce any sound upon being inserted into a computer.

In considering the remedy to be accorded to the Claimant for the wrongful dismissal, I find it apposite to state that wrongful dismissal in cases of contract governed by mere terms of employment attracts damages as held in the case of UNITED GEOPHYSICAL (NIG) LTD & ORS V. OSIOBE & ORS (2014) LPELR-24528(CA)  (Pp. 7 paras. A) that:

"In employment governed by Statute, the Statute governs the terms of employment and dismissal. Any dismissal outside the provisions of the Statute is unlawful dismissal. Any other employment outside the Statute is governed by the terms under which the parties agreed to be master and servant. In other cases governed by agreement of the parties, where the dismissal is done in the form not agreed to, the dismissal is merely wrongful. In the case of unlawful dismissal, the Court after such finding will declare the dismissal null and void and of no effect. This returns the party to their positions ante bellum. In the case of wrongful dismissal, the only remedy is a claim in damages for that wrongful dismissal. See Idoniye Obu v. NNPC (2003) 1 SCNJ 87 at 105. This is because a servant cannot be imposed by the Court on an unwilling master even where the master's behavior is wrong." Per OGUNWUMIJU, JCA (as she then was) (P. 7, paras. A-E)

While the foregoing authority makes it certain that the Claimant is entitled to damages for wrongful dismissal, what is next to decide is the measure or quantum of the damages in view of the sum of N10 million claimed by the Claimant. in this regard, the court in the case of ADIBUAH V. MOBIL OIL (NIG) PLC (2015) LPELR-40987(CA)  (Pp. 15-17 paras. B) postulated clearly on what the measure of damages in case of wrongful dismissal/termination will be, when the court held that:

“The common law principle of master and servant relationship in wrongful termination was clearly put forth by the trial Court and the quantum of damages to the appellant is usually what he should have earned during the period of notice. The lower Court dutifully evaluated the status of the appellant and found that he was not a management staff and had worked for about 11 years with the respondent. It was also established that the appellant had collected some payments meant to be his terminal benefits which is an indication that he accepted the redundancy. The assessment by the Court came to one month's salary in lieu of notice which the lower Court painstakingly calculated from the annual entitlement of the appellant. Appellant failed to establish what his monthly pay was. If the period of notice is one month then the quantum of damages accruable to the appellant is that one month's pay. That was what the lower Court found and awarded to the appellant. It is also in conformity with settled common law principles of master servant relationship. The collective agreement relied upon by the appellant cannot be used to assess the measure of damages since it was not part of the contract of service with the respondent. The lower Court was right and this issue is also resolved against the appellant." Per NIMPAR ,JCA (Pp. 15-17, paras. B-C).

Bearing the foregoing authority in mind, it is evidently clear that the claim for general damages in the sum of N10, 000,000 is outside the confines of common law.  The claim for the sum of N10, 000, 000 damages in my considered opinion appears as a desire for gold digging. This court is a court of justice and equity.

The Supreme Court in Syndicated Investment Holdings Limited v. NITEL Trustees Limited (in Liquidation) 2022 LPELR – 58841 (SC) on the need for courts to be wary of gold diggers when considering award of damages, it referred to the case of GKIF Nigeria Limited v. NITEL Plc per Fabuyi (JSC) where the Supreme Court held that “prospective god diggers” should have no place in courts of law as well as that of equity. A Judge should be wary of them. A party who is ordinarily entitled to a pound of flesh should not run after one hundred of same.

What the Claimant is entitled to as damages for wrongful termination is her salary in lieu of notice which upon perusing Exhibit D3 under Duration of employment indicates that the expected length of notice from an employer is one month, the said one month can also be said to be the expected length of notice from the employee. In view thereof, I have considered exhibit C3 which is the Claimant’s payslip with Net Pay at N300,000.00

In the light of the finding that the Claimant’s monthly salary is N300,000.00 I equally find it imperative to invoke the provision of section 19 of the National Industrial Court Act, 2006 which empowers this court to accord damages in deserving circumstances in cases which this court has jurisdiction to entertain. This consideration and invocation is in view of the breach to the Claimant’s fundamental right to fair hearing in the course of her dismissal.

Consequently, relief five is granted to the effect that this court makes an order directing the Defendants to pay to the Claimant the sum of N300, 000 being one month salary as general damages for the wrongful termination of the Claimant’s employment on the 18^th of July, 2022. I see no justification to award any sum above that based on the facts and circumstances of this case, the sole issue is resolved to the effect that in view of the facts and evidence before this court, the Claimant is entitled in part to the reliefs sought.

In the final analysis, the Claimant’s case is meritorious only in the extent to which reliefs one and five have been granted while other reliefs fails and are accordingly dismissed.

I now turn to the counter-claim of the 2^nd Defendant which as arising from the statement of Defence and counter-claim is thus:

i)                  AN ORDER of this Honourable Court directing the Claimant/Defendant to the counter-claim to immediately return to the 2^nd Defendant/Counter-Claimant the 2^nd Defendant/Counter-Claimant`s IPhone 11 Pro Max being the 2<sup>nd</sup> Defendant`s Customer support phone fraudulently converted by the Claimant in the course of her employment with the 2^nd Defendant.

ALTERNATIVELY: AN ORDER directing the Claimant/Defendant to the counter-claim to pay to the 2^nd Defendant/Counter-claimant an amount equal to the current market value of the IPhone 11 Pro Max.

ii)        AN ORDER of this Honourable Court directing the Claimant/Defendant to the counter-claim to immediately refund to the 2^nd Defendant/Counter-Claimant the N9,245,650.00 (Nine Million, Two Hundred and Forty-Five Thousand, Six Hundred and Fifty Naira) being the 2^nd Defendant`s fund fraudulently diverted by the Claimant/Defendant to the counter-claim.

iii)       The sum of N2,000,000.00 (Two Million Naira) representing the cost of the Action.

Needless to state that the foregoing counter-claim is an independent claim as it has a life of its own and can survive without the substantive suit. In Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, the court in describing a counter claim held that:

"It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff's case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act".

That said, the highlight of facts in relation to the foregoing counter-claims is that sometime in March 2021, the 2^nd Defendant/Counter Claimant’s IPhone 11 Pro Max got missing and upon investigation, it was discovered that the Claimant/Defendant had stolen and sold the phone and when 2^nd Defendant/Counter Claimant demanded explanations from the Claimant/Defendant, the Claimant/Defendant hilariously said that she thought the iPhone 11 Pro Max was a gift from the 1^st Defendant.

Also, the 2^nd Defendant/Counter Claimant averred that from October 12 to December 25, 2021 the 1^st Defendant as the alter ego of the 2^nd Defendant/Counter Claimant travelled out of the country and made several fund transfers to the tune of N10,472,100.00  on behalf of the 2^nd Defendant from the 1^st Defendant`s Guaranty Trust Bank account No.0037861420 to the Claimant/Defendant’s Guaranty Trust Bank personal account No. 0010823478 for payment of 2<sup>nd</sup> Defendant`s staff salaries and running of the 2^nd Defendant`s business. But upon the return of the 1^st Defendant to Nigeria in February, 2022, the 1^st Defendant received several complaints of unpaid salaries and allowances of staff among others, whereupon, the 1^st Defendant summoned the Claimant and demanded explanations for the unjust application of the funds transferred to the Claimant, which the Claimant failed to do.

The 2^nd Defendant added that after a comprehensive investigation using the 1^st Defendant`s account statement evidencing funds transferred to the Claimant and t02.4iofoivo.,he payment vouchers prepared by the Claimant, it was confirmed that the Claimant purportedly spent the sum of N1,226,450.00 only out of the N10,472,100.00 and willfully and fraudulently diverted the said sum of N9,245,650.00. to her personal use.

Reacting to the Counter Claim, the Claimant/Defendant with regards to the allegation of stealing iPhone 11 Pro Max posited that it is completely false that the iPhone got missing in March, 2021 because the iPhone never got missing and no investigation whatsoever was conducted because the said phone was a gift to her by the 1^st Defendant. With regards to the allegation of fraud in the sum of  N9,245,650.00, Claimant/Defendant posited that she never misappropriated  the funds of the 2^nd Defendant as there has never been any transaction she initiated without the awareness of the 1^st Defendant. Claimant/Defendant presented a breakdown of various expenses she made within October to December, 2021 although no total of sum expended was stated.

The foregoing being the contention, I have also taken cognizance of the argument particularly proffered by counsel to the Claimant in relation to proof of the counter claim and consequently, the lone issue for the determination of the Counter claim is to wit:

Whether or not the 2^nd Defendant/Counter-Claimant is entitled to the reliefs sought.

In resolving the sole issue, I must posit that the law is settled that the burden of proving the counter claim is on the 2^nd Defendant as the court held in the case of AFOLAYAN  v. ARIYO & ANOR (2014) LPELR-22775(CA) that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence." Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).

While the general rule in terms of proof of civil suit is rightly upon preponderance of evidence, it must be said that with regards to an allegation of crime, the proof must be beyond reasonable doubt. By virtue of the provision of section 135(1) of the Evidence Act 2011, the court in the case of KAYODE v. FRN (2014) LPELR-24418(CA) held that:

"The proof of a crime in a criminal trial is beyond reasonable doubt. The burden of proof squarely rests on the prosecution and does not shift to the accused in any manner howsoever. If there is any doubt in the mind of the Court it should enure to the benefit of the accused." Per GUMEL, J.C.A. (P. 28, paras. E-F)

 It is also of importance that I state that the burden of proving the commission of crime is squarely on the 2^nd Defendant/Counter Claimant and upon evaluation of the evidence placed before this court, the simple question is whether the said evidence establishes beyond reasonable doubt that the Claimant stole iPhone 11 pro max or diverted the sum of N9,245,650.00 which belonged to the 2^nd Defendant.

In answering the question, the evidence placed before the Court with regards to stealing of phone is the oral testimony of DW1 who upon cross examination posited that the date of stealing the phone was mixed up after admitting that it is true that she stated that the Claimant stole iPhone in March 2021 and that her salary increased in June 2021 to N300,000 from N150,000. Beyond the testimony of the DW1, there is nothing else before this court establishing the fact that the Claimant/Defendant stole a phone. No police report, no query, no office report in relation to official investigation. This tends to give credence to the narration of the Claimant/Defendant that the said phone was indeed a gift which out of spite the Defendant/Counter Claimant has an afterthought about and strongly desires to recover. In addition, I reckon that DW1 herself admitted that each time the 1^st Defendant travels, she buys things for people.  The DW1 also admitted that the Claimant was stripped of all the 2^nd Defendant’s properties with the Claimant/Defendant. It is equally unsettling that the 2^nd Defendant in one breathe posited that the said phone was given to the Claimant to transfer data from and she never returned it, while in another breathe, it was posited that the phone got missing.

Bearing all of these in mind, and upon a thorough evaluation of the evidence presented before this court, there is absolutely no convincing evidence beyond reasonable doubt to prove that the Claimant stole an iPhone 11 Pro Max and I so hold.

With regards to allegation of misappropriation of funds belonging to the 2^nd Defendant/Counter Claimant, I reckon that the two pieces of evidence presented by the 2^nd Defendant/Counter Claimant are the statement of account of the 1^st Defendant admitted as Exhibit D6 and a compiled voucher admitted as Exhibit D7.

What the Defendant counter Claimant seeks is for this court to compute the sum total of the vouchers and deduct same from the sum total of what was transferred to the Claimant/Defendant through the statement of account, in order to come to a conclusion that the Claimant misappropriated the difference and should be made to pay the said difference to the 2^nd Defendant simply because there is no voucher in support of that difference.

In this regard, I must state that such expectation does not establish misappropriation of funds because from the narration of the 2^nd Defendant Counter Claimant, the monies sent to the Claimant were for several things as stated in the narration of the 1^st Defendant’s statement of account and a perusal of the schedule prepared by the 2^nd Defendant/Counter Claimant some of the monies were tagged “NIL” without narration, while a column of the schedule indicates that the money is for salaries and charges. The question arising is whether all of these are to have vouchers as well. What I am laboring to say is the statement of account transferring the monies to the Claimant/Defendant and the vouchers alleged to have been generated does not in themselves establish misappropriation. For the Claimant to have misappropriated the sum of  N9,245,650.00, the various individual to whom she ought to pay the monies must have sued the organization or at least written a demand letter or message asking for their monies that are unpaid by the Claimant/Defendant. None of such proof is before this court.

What is most worrisome about the allegation of misappropriation is that the said misappropriation was said to have been discovered in February 2022 and yet, no formal report to the police was made, no query was issued to the Claimant, no internal memo demanding for explanation was addressed to the Claimant and tendered in court neither was there a report of an investigation carried out internally in this regard tendered in court until her employment was terminated in July, 2022 and only being presented via this counter claim.

Also, the assertion that the 2^nd Defendant upon discovery of fraud, issued to the Claimant an Employee Etiquette Form detailing further codes of conducts to be observed by the Claimant, which Form was thoroughly perused and returned signed by the Claimant is not a believable narration because the said etiquette form is not peculiar to the Claimant/Defendant alone. On the face of it, the form (Exhibit D7) is a generic document which says nothing about the fact that the Claimant/Defendant committed financial fraud in the sum of N9,245,650.00 neither was a confessional statement attached admitting such fact.

Bearing the foregoing finding in mind, it is the irrefutable conclusion that it is doubtful, to say the least, that the Claimant/Defendant stole the 2^nd Defendant’s phone or misappropriated the 2^nd Defendant’s funds. Such doubt by all means must be resolved in favour of the Claimant/Defendant. In this regard, the court in the case of MOHAMMED & ORS V. STATE (2013) LPELR-22352(CA)  (Pp. 33 paras. A-A) held that:

"It is the law that once the prosecution fails to establish the ingredients of the offence and where there are doubts in the mind of the Court as to whether or not it was the accused person who committed the offence, such doubts should be resolved in favour of the accused." Per ORJI-ABADUA ,JCA (P. 33, para. A) (of blessed memory).

In the light of the foregoing, the reliefs sought before this court is not supported by any scintilla of evidence and accordingly, reliefs one, along with the alternative relief and relief two are refused.

Relief three is for N2,000,000.00 being cost of action. In this regard, it is settled that cost is at the discretion of the court and awardable in deserving circumstances in favour of the successful party in a suit. The court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) declared that:

"The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G)

Bearing the foregoing in mind, with regards to the counter claim, the 2^nd Defendant is not the successful party and accordingly has no basis for consideration of cost which is consequently refused.

Having addressed all the reliefs sought by the 2^nd Defendant/Counter-Claimant, the sole issue formulated for the determination of the counter claim is resolved against the 2^nd Defendant/Counter-claimant to the effect that in view of the evidence before this Court, the 2^nd Defendant/Counter-Claimant is not entitled to any of the reliefs sought.

 In the final analysis, the counter-Claim of the 2^nd Defendant lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered in respect of the Counter-claim

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

      JUDGE.