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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE, A.N UBAKA

 

DATED 2ND FEBRUARY, 2024                   SUIT NO: NICN/LA/371/2018

 

BETWEEN                                                             

MR. ISMAILA ABDULRAHMAN                                   CLAIMANT                             

 AND            

NTS NIGERIA LIMITED                                                DEFENDANT

 

REPRESENTATION

Semidara Jones for the Claimant

Micheal Igbati-Egorp for the defendant

JUDGMENT

By a complaint filed by the claimant on the 6th of July, 2018 against the Defendant seeking the following reliefs:

 

1.     AN ORDER that the Defendant pay to the Claimant his 8 months’ salary arrears of N320,000 (Three Hundred and Twenty Thousand Naira) from May 2017 to December 2017.

 

2.     General damages in the sum of N500,000 (Five Hundred Thousand Naira) for the financial hardship and socio-economic discomfort suffered by the Claimant for unpaid salary arrears.

 

3.     Cost of the action assessed at N500,000 (Five Hundred Thousand Naira).

 

Accompanying the complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated and filed on 6th July, 2018.

                                                                   

In reaction, the Defendant entered appearance and filed a Statement of Defence and Counter-claim, Written Statement on Oath, and list of Documents to be relied on at the trial on the 19th October, 2018.  In its counter claim, the defendant/counterclaimant claimed as follows:

 

1.     A DECLARATION that the Claimant did not work for the Defendant and, therefore, is not entitled to payment of monthly salary (otherwise payable to him by the Defendant/Counter-Claimant) for the respective months of June­ - December, 2017 (both months inclusive) and either at the monthly rate of N40,000.00 only or at all.

 

2.     A DECLARATION that the Claimant's salary for the month of May 2017 (otherwise payable to the Claimant by the Defendant) is properly and appropriately deductible, deducted and withheld by the Defendant/counter-­Claimant as a SET OFF and as part-payment of the indebtedness of the Claimant to the Defendant/Counter-Claimant and as per the sum of N969,240.00 only being the total value of loss of 4,920 litres of diesel products negligently inflicted on the Defendant/Counter-Claimant by the Claimant (and as already pleaded above).

 

3.     A CONSEQUENTIAL ORDER of forfeiture of the aforesaid salary of N40,000.00 only for the month of May 2017 by the Claimant to the Defendant/counter-Claimant; and accordingly.

 

4.     A DECLARATION that the Claimant/Respondent is liable to fully compensate and indemnify the Defendant/Counter-Claimant for the unaccounted loss/shortfall/contamination/wastage/disappearance/ evaporization in the quantity of 4,920 litres of diesel (which monetary value is N969,240.00 at the rate of N197 per litre) and all INTEREST accruing upon said trade capital commencing from 27/5/2017 until final liquidation of the judgment debt hereof.

 

5.     The sum of N969,240.00 only being the total value of 4,920 litres of diesel products of the Defendant/Counter-Claimant which is contaminated, wasted and unaccounted for by the Claimant (and minus the Claimant's salary for the month of May, 2018: N40,000.00 only).

 

6.     INTEREST at the rate of 23.5% (or any other rate adjudged by the Hon. court) on the aforesaid N969,240.00 only per month and commencing from 27/05/2017 until the final liquidation of the judgment sum herein.

 

7.     The sum of N750,000.00 being professional legal services fee incurred by the Defendant/Counter-Claimant in defending this suit and prosecuting this counter-Claim/setoff.

 

8.     The sum of N1,320,760.00 only being general damages for industrial negligence, nuisance, embarrassment, harassment, malignment, official and judicial blackmail and, to wit, malafide gold-digging.

 

The Claimant’s Reply to the Defendant’s Statement of Defence and Defence to counter claim is dated 22nd, November 2018 but filed 23rd November, 2018.

 

The defendant’s Reply to the claimant’s defence to counter claim is dated and filed 22nd March, 2019.

 

The summary of the facts pleaded by the claimant is that he was employed by the Defendant as a Haulager on 26th day of August, 2014 on a salary of N40,000 (Forty Thousand Naira) per month paid into his Stanbic IBTC Bank Savings Account; that he worked diligently for the Defendant as a Haulager as his primary place of assignment was the company yard situated at Oregun; that his job description in the company was to offload diesel from the long truck (tanks) to a short truck at the company yard in Oregun, logging in diesel products, returns and rehousing of remnants of products not exhausted at the Site by the Engineers back to the yard and at no time did he convert, collaborate, conspire, collude or connive with other persons (Known or Unknown) to sabotage the business of the Defendant. That on Sunday, 28th May, 2017 he was called by the Managing Director to come and account for some drums of diesel in the yard which was not in line with his primary assignment, as he was not in charge of distribution of diesel and that he was also instructed by the Managing Director to mention certain people Involved in the theft of diesel products at the company yard which he knew nothing about.

 

That because he was unable to name anyone involved in the theft of the company’s Products, he was beaten and locked up in a truck in the yard at Ibadan Express Way by the company security all on the instructions of the Managing Director, Mr. Titan Ngalam, and his vehicle, a Golf Volkswagen was also seized by the company even though he told them that the car was not his own, as he was looking for a buyer for the owner of the car and that he did not deposit the car as collateral or security; that the day after, he was taken to Magodo Police Station where it was found out after investigation by the police that no diesel product was lost in his care and that after the incident, he was asked to resume at the office instead of the yard to await further instructions from the Managing Director. That he continued to show up at work judiciously without being paid any salary from May 2017 until his appointment was terminated on 29th December, 2017 in the sum of N320,000 (Three Hundred and Twenty Thousand Naira) via a letter of termination. That the Defendant owes him 8 months arrears in salary from May 2017 to 29th December, 2017; that after his termination, he wrote to the Defendant, requesting for payment of his outstanding salaries and the release of his Golf Volkswagen vehicle. That the non-payment of his salaries has caused him financial injury and no longer able to meet his financial obligations being a family man with children. That he approached the Office of the Public Defender (OPD), Lagos State Ministry of Justice at No: 2/8 Iyun Road, off Funsho Williams Avenue, Surulere, Lagos to lay a complaint over non-payment of his salary arrears and the Defendant was invited for a mediation by the Office of the Public Defender on two occasions but failed to honor the invitation the first time, but honored the second invitation and that the mediation at the OPD yielded no result, as the Defendant refused to pay him, consequently, OPD decided to file this matter before the Honorable Court as a last resort.

 

In his Reply to the defendant statement of defence and defence to the counter claim, CW stated that he was never given any query whatsoever as to the performance of his duties; that he neither hid nor kept nor deposited 24 number of 205 litres of diesel in secretive arears of the yard, that the true position is he and his fellow haulagers on numerous occasions asked the defendant to provide storage tanks for the diesel products and were not happy with the use of drums because of regular police disturbance and harassment and that there was no official nor mandatory policy by the Defendant that prohibits the storage of the diesel in drums as all the superiors from the COO, Project Manager, Transport Manager, and the two distribution Managers were all aware about the storage of the diesel in drums and they on numerous occasions came to the yard and none of them raised any policy whatsoever regarding storage. That he was accused of theft of the diesel products by the Managing Director and he reiterated that he was beaten and locked up in a truck along Ibadan expressway and it was in the process of being beaten that his Golf car keys fell out of his pocket and his phones were seized by the Security guards on orders from the Managing Director. That the only time he was absent from the office was when his child had an accident and was admitted at the hospital, a situation he brought to the attention of the Chief Operating Officer (COO) "Mr. Emmanuel Ode" who granted him permission for that week.

           

That his son was in coma at the hospital for 2 days, and he pleaded with the COO to lend him some money to attend to his child's situation, but was not given any and the COO said he was not in a position to give him any money without instructions from the Managing Director, but he could give him a week off to sort out his finances; that he is an indigent of the state, hence entitled to the services of the OPD. That on numerous occasions he told the Defendant that there was need to provide tanks to store the diesel products to which the defendant turned a deaf ear. That he did not at any time abdicate his duty, neither was he negligent, hence he is not liable to compensate the Defendant/Counter Claimant for any loss; that the Defendant is merely trying to avoid paying him his salary, hence the frivolous claims and that the Defendant is not entitled to any of the sums in its Counterclaim as same is gold digging, lacking in merit and should be dismissed with substantial cost.

 

Under cross examination by the defendant’s counsel, CW stated that he did not undergo any training after his employment; that he did not depose to transloading all diesel in his written statement on oath.

 

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

 

The defendant opened its defence and disagreed with the claimant’s version of array of events. That it is correct that on 28/05/2017, the MD/CEO of the Defendant did pay an unscheduled working visit to the Defendant's said YARD in Oregun; And during which an inspection of the YARD by same did uncover 24 number of 205 litre drums of Diesel separately hidden, kept or deposited in various secretive areas of the Depot (i.e. YARD). Naturally, the MD/CEO demanded to know to whom those drums of diesel, belonged and how the said consignments came to be kept in the Defendant's said YARD and by whom: that was how the MD/CEO of the Defendant got referred to the Claimant (as the Haulager) for the explanation which he sought and that the Claimant's on-the-spot explanation to the MD/CEO of the Defendant was anything but satisfactory or convincing and was full of incoherence and self­-contradictions: The official and mandatory policy and strict industrial practice of the Defendant specifically forbids and prohibits the storage of products in drums or containers other than the plastic tanks installed by the Defendant in the YARD for the purpose; that consequently upon the abnormal manner of storage of the said 24 drums of diesel product, same had been rendered contaminated, wasted and unfit for marketing by the Defendant.

 

That it is absolutely untrue that accounting for improperly stored or secretively hidden drums of diesel products in the Defendant's YARD is not in line with the Claimant's primary assignment; that the work schedule of the Claimant as the Haulager of the Defendant's products in the Yard includes taking stock and keeping inventory and records of the Defendant's products coming into the yard, warehoused in the yard and leaving the yard: the Claimant, by his exclusive industrial duty as haulage, monitors and takes stock of the delivery of diesel products into the Defendant's Yard, the storage of the said products therein and the supply of the said products from the Defendant's yard; At all times material to this suit, the claimant is, by his employment work schedule, duty-bound to know and/or reasonably ought to know about the quantity and ownership of all diesel products inside the Defendant's yard (inclusive of those diesel products found inside those drums that were discovered to have been secretively stored away/hidden in the Defendant's yard).

 

That there was no allegation of theft against the Claimant at all; the Claimant was not called upon to name those involved in the alleged theft of the company products nor beaten up and/or locked up in a truck in the yard at Ibadan Expressway by the company security as alleged or at all; that the Claimant's golf Car was not seized by the company at all and at the instruction of the Managing Director Mr. Titan Ngalan as alleged or at all; On the contrary, the claimant initially said that the said Golf car belonged to someone else and that he was only trying to assist in selling the said Golf car and that it was the Claimant who, subsequently, voluntarily deposited his said Golf car with the Defendant and as security/collateral for repayment of all the Claimant's admitted money ­value equivalent of the diesel products which he had wrongfully wasted and thereby converted the Defendant's diesel products; it is not true at all that the said Golf car was seized from the Claimant by the Defendant.

 

That subsequent to 28/05/2017, the Defendant did not have reason to believe that the claimant knew nothing about the 24 drums of 205-litre each diesel found in the Defendant's yard on 28/05/2017 and as a law-abiding corporate person, the Defendant reported the matter to the Magodo Police Station which swung into investigation (and with the Claimant as 1st suspect) and that in order to settle amicably and pave the way for discontinuance of continuing police investigation and eventual prosecution, the Claimant came back to the Defendant and volunteered to enumerate all the parties and persons with whom they have jointly done illegitimate deals and transactions with the Defendant's diesel products in the Defendant's yard as well as to mention all those that were behind the aforesaid 24 drums of diesel that were found in the Defendant's yard. That without prejudice to the police intervention, the Defendant set up a panel of inquiry into the matter; and before the panel's meeting, there was a directive that the Claimant should be redeployed from the YARD to the Defendant's office and the Claimant was so directed to henceforth resume work at the Manager's office as office personnel; but the Claimant failed, refused or neglected to do so and that it is not true that the police at Magodo, after investigation, found out that no diesel product was lost in the claimant's care.

 

That the Claimant was reposted to resume work as office personnel in the Manager's office, he showed up in the Manager's office for one day (without actually working) and thereafter was not seen again until 29/12/2017 when the Claimant's employment was duly terminated; that the only salary that the Claimant could have' been entitled to be paid is the salary for the month of May 2017 only and subject to Counter-Claim/Set-Off herein and that the Claimant is not entitled to be paid any salary for June 2017 - December 2017 for which the Claimant did not work for and/or earn any salary from the Defendant as the Claimant failed, refused and/or neglected to work for the Defendant for the stated period; “NO WORK NO PAY” is the contractual term hereby specifically pleaded; the' Defendant has (and has exercised) a right of lien and set off on the Claimant's accrued salary for May 2017 in lieu of the twenty-four drums of diesel (i.e. 4,920 litres) which remains contaminated, unclaimed and unaccounted for by the claimant. Each drum contains 205 litres of diesel; each litre of diesel costs N197.00 only. The total value for the 4,920 total of litres of diesel products contained in the aforesaid twenty-four drums is N969,240.00 only.

 

That the claimant deliberately withheld from the honourable court the fact that the Claimant's said Golf car has been retrieved by (and released to) the claimant sometime in January 2018 and thereby deliberately attempted to mislead the honourable court; that the falsely-alleged non-payment of salary has not caused any financial; injury to the Claimant at all and that at all times material to this suit the Claimant is not known to the Defendant to be a family man with children and the Claimant's falsely-alleged financial obligations are woefully self-misconceived; that, in any alternative event, the Defendant is not to blame at all.

 

That the intervention of the office of the Public Defender of Lagos State (OPD) was not a Forum of Neutral Conciliation or Mediation as the Claimant had intended and did attempt a subtle blackmail of the Defendant, with the use of “OPD”, into submitting/conceding to the Claimant's unwarranted demands; and which said demands were both unfounded and unacceptable to the Defendant; that it is not true that the Claimant is an impecunious litigant as he drives about in Porsche Volkswagen Golf car which he operated and owns in a disguised name; that the Claimant's counsel herein (i.e. Lagos State office of the Public Defender) is a statutory body set up to canvass for justice free of charge to indigent members of the public and that the Claimant is not-entitled to the legal services fee claimed by same herein. That the Claimant's daily inflow of unearned money (other than legitimate salary) was evidently cut off right from the moment that the Claimant was redeployed from the company’s depot/yard to the office of the MD/CEO of the Defendant (as office personnel) as he found himself in a state of stranded "daily liquidity"; and which state, the Claimant, did not take in good faith and could not cope with and promptly rejected by refusing to continue to come to work until the eventual termination of his employment due to reorganization in the Defendant's company.

 

That subsequent to the pleaded termination, the Claimant (by his letter, dated 03/01/2018) did apply to the Defendant for the release of his Golf car and the payment of an alleged arrears of salary (stated to be N320,000.00 only) but when the Claimant was confronted with his liabilities to the Defendant and attendant setoff and subsisting lien on his Golf car until reconciliations/discharge thereof, the Claimant quickly abandoned that course of amicable settlement and took to writing (and did write) a spurious, blackmailing and unfounded complaints against the Defendant at the Lagos State office of the Public Defender (OPD).

 

That subsequent to the claimant’s employment as Haulager, he was duly briefed, trained and instructed as per his schedule of duty and manner of discharge and performance thereof and in strict compliance with safety standards and company policy, due diligence, security guidelines, maximum productivity, mandatory recording/inventory and duty of fall disclosure and strict accountability; that the Defendant/Counter-Claimant is a Trading Company which, often times, obtains overdraft/loans to finance its trade in, inter alia, diesel products and at interest rates of 23.5%; that contrary to the operational guidelines which require storage and preservation of all products of the Defendant inside the plastic tanks installed in the Defendant's Depot/Yard for that purpose, the Claimant negligently and wrongfully abdicated this duty of industrial diligence; and to the prejudice of the Defendant/Counter-Claimant.

 

PARTICULARS OF WRONGFUL INDUSTRIAL NEGLIGENCE

 

1.     At all times material to this suit, the Claimant/Respondent is under (and contractually owe the Defendant/Counter-Claimant) a very strict industrial duty of diligence and care, as the Counter-Claimant's, Haulager (and as admitted by same at paragraph 6 of the Claimant's STATEMENT OF FACTS), to ensure that diesel products are appropriately stored, preserved and/or rehoused in (and supplied from) the plastic tanks which are specifically installed in the company’s yard for that purpose; and so as to ensure quality, accountability, safety, transparency and security of both the products and the company facility/premises as well as to forestall all incidents of theft, fire outbreak, unexplained disappearance, siphoning, evaporization, contamination, wastage, shortfalls, loss, unwholesome and sharp practices and sabotage; And, inter alia, by insisting on due compliance therewith or reporting incidents of non-compliance therewith or dereliction of duty thereto-pertaining to the company management;

 

2.     For reasons known to the Claimant/Respondent, he failed, refused and/or neglected to keep appropriate, correct/accurate records, and to take stock of diesel products; and to appropriately store and rehouse remnants of Diesel products in the specially constructed and installed plastic tank containers for that purpose; and to the prejudice of the Defendant/counter-Claimant.

 

3.     The Claimant also failed, refused and/or neglected to ensure or to insist on compliance with storage guidelines and company policy of the Defendant/Counter-Claimant thereto-pertaining;

 

4.     The Claimant failed, refused and/or neglected to report incidents of non­compliance with aforepleaded mandatory storage regulations, rules, guidelines and/or instructions pertaining to exclusive and mandatory storage of diesel products in the plastic tanks (installed for that purpose) by any other staff or worker or supplier in the company yard, at all times material to this suit. When asked by MD/CEO, the Claimant feigned ignorance and said he did not know how the diesel product disappeared from the installed plastic tanks into the 24 drums (each containing of 205 litres) in the yard.

 

5.     And the Claimant did wrongfully condone the said non-compliance and/or did wrongfully connive at and collude with the wrongful defaulters.

 

6.     Whereof RES IPSA LOQUITUR is hereby specifically pleaded.

 

7.     The Claimant knew and/or ought reasonably to have known the requirements of mandatory compliance' therewith and the implications/ consequence of non-compliance/ default therewith.

 

8.     The Defendant also pleads wrongful UNFAIR TREATMENT by the Claimant.

 

9.     Consequent upon the aforepleaded storage of diesel products in drums other than in the plastic tanks (which are exclusively, specifically and scientifically installed for that specialized purpose) wrongful loss and/or shortage of diesel products (and whether by mysterious disappearance, compromise, theft, siphoning, sabotage, contamination, wastage, evaporization or otherwise) was thereby inflicted on the Defendant/Counter-Claimant: The total of 4,920 litres of Diesel product was rendered contaminated, wasted and unaccounted for and up to the value of N969,240.00.

 

10.           Consequent upon the Claimant's aforepleaded wrongful abdication of duty of industrial diligence in appropriate storage and accountability and appropriate recording/entries/stock-taking of diesel products, there was thereby occasioned the above-pleaded, shortfall/loss in the Defendant/Counter­-Claimant's Diesel products which could not be accounted for by the Claimant/Respondent (as Haulager of the Defendant); and as per the quantity and value already pleaded above.

 

11.           The Claimant has absolutely no defence or justification for his aforepleaded industrial negligence and/or deliberate abdication of duty of compliance therewith and/or dereliction of duty of whistle-blowing at all times material to this suit.

 

The Claimant is liable to indemnify/compensate the Defendant/ Counter-Claimant fully for the above-pleaded loss as well as for general and special damages hereto-pertaining.

 

RIGHT/EXERCISE OF LIEN AND SETOFF

 

That its entitlement and right of lien (and effective exercise of the said right of lien) and SETOFF in the Claimant's salary for the month of May 2017 otherwise the property of the Claimant; and up to the value of being the cost (exclusive of accruing INTEREST thereon) of the above-pleaded litres of diesel products and which said loss the Defendant/Counter-Claimant has wrongfully suffered consequent upon the Claimant's aforepleaded/industrial negligence and/or wrongful conducts/unfair treatment and that it has suffered (and is still suffering) special and general damages:

 

PARTICULARS OF DAMAGES

 

1.      Loss of 4,920 litres of diesel product (contained in 24 drums; each drum containing 205 litres): total value = N969,240.00 only (at the rate of N197.00 only per litre of the said diesel product.

 

2.      Interest on the aforesaid sum of N969,240.00 only at the rate of 23.5% per month and commencing from 28/5/2018 until final liquidation of judgment debt to the Counter-Claimant (which is a trading company, inter alia, in diesel product).

 

3.      legal services fees       = N750,000.00

 

4.      Nuisance, embarrassment, harassment and blackmail

TOTAL          =          N3,000,000.00

 

That the claimant/respondent lived a manifestly ostentatious and lavished lifestyle which was obviously unsupportable by his legitimate monthly salary earnings of N40,000.00 only per month and that not long after the Claimant started working as Haulager of the Defendant, the Claimant started living real big"; and he bought a Porsche Golf car (which ownership he initially disguisedly and falsely ascribed to another person else unnamed by him) and generally, lived life as a wealthy merchant; Little wonder that immediately upon being redeployed (as Haulager) from the company Depot/Yard at Oregun to work at the Manager’s office (as Office Personnel), the Claimant snubbed the new posting with impunity and disdain and is now feigning hardships allegedly due to non-payment of salary (which he never worked for nor earned.

 

That absolutely at no time whatsoever did the Claimant/Respondent tell the Defendant/Counter ­Claimant that there was need to provide tanks to store the diesel products" and either as alleged or at all and the Counter-Claimant never "turned a deaf ear" to the Claimant/Respondent either as alleged or at all: At all times material to this suit, there were (and there still are) installed sufficient storage- tanks in the Counter-Claimants DEPOTS to receive, contain and discharge all of the Counter-Claimant's diesel products. For the avoidance of doubt, the Counter-Claimant does not place order for, nor take delivery of or store, petroleum products (inclusive of diesel products) in any excess of the capacity of its installed storage tanks (there is a very strict duty of industrial/environmental safety and Guaranteed Quality of products observed by the Defendants/Counter-Claimant which can never be compromised). That the counter-claimant's counter-claim herein is neither gold-digging nor lacking in merit and that is not liable to be (and should not be) dismissed either with substantial cost, or any cost at all or without any cost at all. That the Reliefs sought as per the Claimant's Writ of Summons & Statement of Fact are liable to be dismissed (and should be dismissed) as unwarranted, speculative, gold-digging and lacking in merits.

 

Under cross examination by the claimant’s counsel, DW said that the claimant report to him and that the tasks assigned to the claimant by any officer pass through him; that the claimant is the defendant’s only haulager with the assistance of some drivers; that the written report of the investigation is with the defendant’s H/R and does not know whether it is before the honourable court; that his terminated employment was based on negligence.   

 

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

 

The parties were directed to file their final written addresses. The defendant/counterclaimant’s final written address is dated and filed 13th September, 2023 while the claimant’s final written address is dated and filed 3rd October, 2023. The defendant/counterclaimant’s Reply on point of law is dated and filed 27th October, 2023.

 

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

 

1.     Whether the Claimant has proved his claims evidentially (as per his Originating Plaint and Statement of Facts) and sufficient to entitle him to the judgment of this honourable court in his favour.

 

2.     Whether, on the other hand, judgment should be entered in favour of the Defendant/Counter-Claimant, due regards being had to it's Evidence led during trial.

 

It is the defendant/counterclaimant’s counsel submission on issue one (1) that apart from the claimant’s witness Written Statements on Oath cited above, which the Defendant duly denied, controverted & disputed), the Claimant has failed woefully to prove his pleadings which are fundamental & material to entitle him to the judgment of the Honourable Court in his favour; that not all the secondary documentary exhibits canvassed during the trial by the Claimant ought to be admissible to the extent that no foundation for their admissibility was properly laid; that the Defendant is also mindful of the Claimant's "alien Evidence" resorted to by the Claimant during cross-examination (which evidence was not pleaded nor canvassed in Claimant's witness' Written Statement on Oath); that all these evidence ought to be (and should be) jettisoned, discountenanced & expunged from the Records of, and consideration by, the Honourable Court. He cited the case of Nsigge vs Mgbemena (2007) 30 NSCQR 840.

 

Continuing, counsel submitted that the claimant is not a witness of truth as his credibility was thoroughly shaken under cross examination by the defendant’s counsel; that the probative value of the claimant’s evidence led during trial has therefore failed to discharge the statutorily mandatory standard and burden of proof in civil cases. He referred the honourable court to Sections 131; 132; 133; 134 &136 of the Evidence Act, 2011 and cited the case of Abubakar Vs Joseph (2008) 34 NSCQR 1200.

 

That the Claimant's Claim & Evidence of having worked for the Defendant/Counter-Claimant for June - December 2017 defies good logic & natural course of events: After his protest-withdrawal from work and in view of his false allegation of physical manhandling and prosecution with the use of police (inclusive of forcible seizure of Golf Volkswagen Car) supposedly by the Defendant, it is clearly most improbable & impracticable for the same Claimant to have worked with the Defendant for the alleged period of June-December 2017 (as the Claimant falsely alleged).

 

On Relief 2 and 3 of the claimant’s claims; the defendant’s counsel submitted that none of the Grounds or facts warranting those claims for general damages was specifically proved and that the Claimant's professional legal services in this Suit was rendered free of charge by the Office of the Public Defender which is a statutory organization established by the Government of Lagos State to render such services free of charge to members of the Lagos State Public (inclusive of the Claimant); The Claimant is therefore not entitled to the alleged cost of action herein and either as self-­assessed by the Claimant (i.e. N500,000.00 only) or at all and that it is also contrary to section 19 of the National Industrial Court Act 2006.

 

On issue two (2); counsel urged the honourable to hold that the Defendant/Counter-­Claimant has discharged the burden of proof placed on it by Sections 131-133 of the Evidence Act, 2011 and more particularly, that, in so doing, the Defendant/ Counter-Claimant has duly met with the standard of proof of its Counter-Claim required of it by S.134 of the Evidence Act, 2011, on the balance of probabilities. He cited the case of Mogaji vs Odofin (1978) 4 SC 91.

 

On Damages, set off and entitlements pertaining to the Defendant/Counter-Claimant's surcharge and exercise of right of lien; counsel urged the honourable court to hold that the defendant/Counter-Claimant has proved serial breach of the employment contract by the Claimant/Respondent and that the Defendant has proved by credible evidence facts warranting its setoff, surcharge and exercise of right of lien over and pertaining to the Claimant’s Salary for the truth of May 2017; and, that, the defendant has by credible evidence (inclusive of the claimant's own admission) proved theft or loss of the said drums of diesel oil under the employment superintendence of the claimant/respondent as the Haulager thereof; and that, the defendant has proved act, of negligence by the Claimant/ Respondent (inclusive of reps Ipsa Loquitor) thereto-pertaining; as well as special & general damages and, respectively for which the Claimant/ Respondent is liable to the Defendant / Counter-claimant's Counter­claim in this Suit. He cited the case of Gonzee Nig. Ltd vs NERDC 22 NSCOR 749.

 

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

 

1.     Whether the Claimant is entitled to the reliefs sought.

 

2.     Whether the defendant/Counter claimant is entitled to her counter claim/Set-off

 

It is the claimant’s counsel submission on issue one (1) that the Claimant is entitled to his arrears of salaries including the one-month salary in lieu of notice; that parties are in agreement that the Claimant was deployed to the office and was not placed on suspension; that it is the duty of the employer to provide job for the employee who is available, ready and willing to work and pay the agreed wages. Thus, the resort of the Defendant to the policy of “no work no pay” is a lame excuse as same is not borne out of any rule of law as disclosed by the facts of this case nor borne out of the contract of employment which regulates the relationship between the parties; that by virtue of exhibit IA4, the claimant was not relieved of his employment because of any wrongdoing that may involve abandonment of duty. He referred the honourable court to Section 17 of the Labour Act.

 

Continuing, counsel posited that the Claimant having given positive evidence of his regular attendance to the office, the burden now shifts to the defendant to disprove this assertion; that the defendant has an office attendance register which it failed to produce for the inspection of the honourable court which would have shown that the Claimant attended the office until his termination in December 2017. He cited the case of Baba - Iva v Sikelu 2005 LPELR-7448(CA) Pp16 para-B-D and urged the honourable court to invoke the provision of Section 169 (d) of the Evidence Act on withholding of evidence and to order the defendant to pay the claimant’s arrears of salaries.

 

On the claimant’s claim for damages and costs; counsel argued that going by the facts that the defendant caused hardship on the claimant by its wrongful act, the defendant also did not pay salary in lieu of notice of termination of employment in accordance with exhibit IA1; that the claimant has incurred costs of coming to court since 2018, borne the cost of photocopies, cost of service of court processes, cost of transcripts and other incidental costs due to the fact that the Defendant truncated the efforts to resolve this matter amicably and out of court through mediation.

 

On issue two (2); the claimant’s counsel submitted that the law is settled that he who alleges must prove and must prove with credible evidence; that there is no iota of evidence to support the allegations of the Defendant/Counter claimant as to entitle her to the reliefs sought in its counter claim. That aside the inconsistent statements in the witness statements and unreliable testimony during cross examination, the defendant provided no evidence to support this allegation of suspicion of stealing against the Claimant nor proffer any evidence to discharge the burden of proof that shifted on it to prove the existence of the official mandatory policy on the storage of the diesel in the plastic tanks nor produced evidence whatsoever to show the price of diesel per litre as at May 2017 in arriving at its imaginable reliefs. He cited the case of FBN Plc v Mainasara 2004 LPELR-7368 (CA) Pp 23-24 para-D-A and urged the honourable court to reject this claim in its entirety.

 

On the counter claimant’s claim for interest and solicitors’ fees; counsel submitted that there is no basis for this claim of interest on a transaction which the Defendant did not establish nor prove; that interest is not claimed as a matter of right and that the solicitor's fees is gold digging as there is nothing in the evidence to justify the award of such relief. He urged the honourable court to discountenance reliefs 7 and 8.

 

On the claim for damages; counsel submitted that the counter claimant did not place any material before the honourable court to establish any damage it suffered in the hands of its employee but rather, it is the Claimant that had suffered damages by having his salaries withheld, beaten, tortured, dehumanized and falsely imprisoned; that had his vehicle seized and confiscated, his employment wrongfully terminated. He urged the honourable court to so hold.

 

On Reply on point of law; the defendant/counterclaimant’s counsel submitted that the Claimant has a statutory duty to prove the averment in his pleadings, (i.e. the claimant worked with the Defendant for the months of June-December 2017, both months inclusive; and which said averments are denied as untrue by the Defendant's pleadings) and that the Claimant's Counsel's submission, per-emptory facts-findings & unfounded insinuations) does not constitute evidence in proof of Claimant's case. He cited the case of Wema Bank vs Anisere (2003) 8 F.R. 93and urged the honourable court to so hold.

 

There is no doubt that from the entire pleadings of both parties, the evidence led, authorities cited and arguments of counsel, the issues for determination in this case are

 

1.     Whether the claimant is entitled to the reliefs sought.

2.     Whether the defendant is entitled to its counterclaim

 

Before I go into the main case , it is necessary to look into the objection   raised  by the defendant on  the admissibility of secondary exhibits tendered  during trial by the claimant.  The submission is that they are not admissible as no foundation was laid for the admissibility of same . The defendant is not specific on  the documents he refers to as secondary exhibits    tendered by the claimant .  In paragraph 5.03 of the defendants final address it opens with ‘’ Not all the secondary documentary exhibits canvassed during the trial by the claimant ought to be admissible ‘’ The learned counsel to the defendant has not told the court which of   the exhibits tendered by the claimant he seeks to object to the admissibility  and the meaning of ‘’ secondary documentary exhibits ‘’ . The objection is accordingly discountenced  and dismissed.

  The case of the claimant is that he was employed as a Haulager on the 26th of August 2014  .His job description was to off load diesel direct from the truck to a short truck in oregun being a place for storage of the diesel products for the defendant . He was called by the Md to account for loss of some drums of diesel in the yard and was eventually beaten and locked up in a truck at Ibadan expressway and his golf Volkswagen seized by the company . He was not paid his salary from May to December 2017 before  his employment was terminated on the 29th December 2017 . The defendant disagrees with the claimants contention as the defendants submission  is that the missing / contaminated diesel is all linked to the claimant as he lived an ostentatious lifestyle and after his deployment , he could not continue with the lifestyle .   In proof of his claim the claimant tendered letter of employment (exhibit AI 1), Bank statement / tax invoice (exhibit IA2), delivery note  (exhibit IA3), letter of termination ( IA4) , request for payment and release of vehicle ( IA5) photocopy of ID card ( IA 6) . The defendant did not tender any document

 The  first issue is whether the claimants employment was terminated in accordance with the terms of employment and  whether the claimant has been able to prove the wrongful  termination . By Keystone bank plc v Yiggon (2013) LPELR -22131 (CA) the Court of Appeal held

 

And in a case of wrongful dismissal, all that the employer needs to show to succeed is that the reasons for termination of appointment or dismissal are true where the employer has given reason, but the employer is not obliged to give any reason, See Fakuade v O.A.U (supra).

 

 Part of The letter from the defendant  terminating the claimant employment is reproduced hereunder

  27th December , 2017

Dear Rahman Ismaila  

 

 

 

LETTER OF TERMINATION

Following the current restructuring going on in the company , the management regrets to inform you that your services would no longer be required effective immediately

 This is owing to the current harsh market realities

Kindly submit all the companys properyies in your possession to the human resources Department

 

 An employer is not bound to give reasons for terminating the appointment of his employee, but where he gives reason the onus lies on him to establish that cause or give reason at the trial to the satisfaction of the court . See  S.P.D.C  ( nig ) ltd v Olanrewaju ( 2002) 16 NWLR  ( Pt 792) 38 CA , The claimant was dismissed for restructuring and the reason being the harsh market realities , it lies on that employer to justify the reason if challenged. See Angel Shipping & Dyeing Ltd V Ajah (2000) 13 NWLR (pt. 6985) 532 (CA) and Afribank v (Nig) Plc v Osisanya (2000) 1 NWLR (pt. 642) 592 CA.

 

Having given the reason of  harsh market realities the onus lies on the defendant to establish same. The law is trite that he who asserts must prove. See section 131 of the Evidence Act 2011, See Afroctas (Nig) Co Ltd & Anor v Skye Bank & Anor (2017) LPELR – 43397 (CA).  The evidence before the court being  Haulager in the defendants company , the Md paid a surprise visit to the site and discovered that about 24 drums of 205 litre were secretly hidden  in different containers and in different places in the yard which warehoused the diesel. And the claimant is bound to know about the movement , quantity and ownership of all diesel products as those drums were found to be tucked away . They did not allege any case of theft against the defendant and that the claimant was neither beaten nor locked up as alleged leading to the seizure of his golf car . He was subsequently posted to resume work as office personnel . What the claimant is being alleged of is attempt to remove 24 drums of 205 litre diesel but his employment was terminated based on restructuring and harsh economic condition.  In the first paragraph, it states '’’ following the current restructuring going on in the company , the mangemnt regrets to inform you that your services would no longer be required effective immediately ‘’ In other words  termination of his  employment was with immediate effect. The reason for the termination is as a result of restructuring . The crux of this matter therefore has been whether the defendant can in accordance with the laid down principles of giving reason for termination apply same to the claimants termination on ground of restructuring . It is not a matter for argument that the claimants termination was not founded and same proved on the reason of restructuring as reason for termination was given  but did not adduce satisfactory evidence . While termination is envisaged in such a master / servant relationship and reason given it must be shown that such reason is justified which Is not the case here as there is no proof of restructuring     

  Having regard to the pleadings and evidence before the court , it cannot be said that the defendant has proved the reason for termination as there is no evidence before the court that there is current restructuring in the defendants company

  The next issue to be resolved is whether the claimants  employment has been validly terminated ? In paragraph 12 of the statement of facts the claimant averred that his appointment was terminated on 29th December 2017  with immediate effect.  There is no doubt that the parties herein are governed by exhibit IA 1 . Exhibit  IA 1 provides for the procedure for termination of the claimants appointment. A close look at exhibit IA 4 in the 1st paragraph states ‘’ that your services would no longer be required effective immediately.  Where a contract of service provides for termination by either giving a specified and pre – agreed period of notice that poses no problem as to how the contract comes to an end when either party exercise his right to give notice of intention to bring the contract relationship to an end,. This is because an employer who hires an employee under the common law has the corresponding right to fire him at any time which must be done within the four walls of the contract between them . Where the employer in terminating or dispensing with the services of an  employee does so without due regard of the terms and conditions of the contract of employment between the parties  the termination will be declared wrongful . The principle was restated by the Supreme court in SAMUEL ISHENO V JULIUS BERGER NIG PLC ( 2008)    6 NWLR ( part 1084 ) 582 AT 609 H 610 . The defendant did not comply with the terms of contract as exhibit IA 1  under termination provides ‘’ either party could terminate the employment with one month notice in writing or one month salary in lieu of notice ‘’   The termination in exhibit IA 4 was with immediate effect and runs contrary to the provision in exhibit IA 1 .    The defendant cannot midway change the contract of employment terms. See Longe V First Bank of Nig Plc (2010) LPELR -1793 (SC) where the Apex court held that every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law.  Having terminated the claimants employment with immediate effect, contrary to the terms of employment the claimant is entitled to salary in lieu

  I accordingly find and hold that the claimant is entitled to one month salary in lieu of notice .

 The next issue for determination is whether the claimant is entitled to 8 months salary arrears of N320,000from May 2017 to December 2017 . The claimant in paragraph 12 of the statement of facts averred ‘’ The cw avers that he continued to show up to work judiciously without being paid any salary from may , 2017 until his appointment was terminated on 29th December , 2017 via a letter of termination ‘’ . The defendant would in response to this the defendant vehemently denied that the claimant worked from May to December . Their position as per paragraph 10 of the statement of defence and counterclaim / setoff is that the claimant was reposted to resume work as office personnel in the mangers office but after showing up in the mangers office for one day ( without actually working ) the claimant thereafter was not seen again until 29/12/207 when the employment was duly terminated and having refused to work for the defendant for the stated period the contractual term of ‘’ no work no pay ‘’ was  applied to set off on the claimants accrued salary for may 2017 in lieu of the 24 drums of diesel 9/ i.e 4,920litres ) which remains contaminated , unclaimed and unaccounted for by the claimant .  where is the contractual term of no work no pay inserted in the parties contractual agreement

Let me state that the evidence of the defendant on the issue of missing 406 litres of diesel is at variance with the pleadings of the defendant . The defendants witness had in his testimony told the court that  the cw was negligent but was  issued a query which is not before the court .  Dw stated under cross examination that the policy of the defendant is to store diesel in  plastic tanks  but in response as to whether there is evidence that the  defendant has plastic tanks in the office and he answered no . on  has what gave rise to the claimant being reposted to from the yard in Oregun as a haulager to a personnel officer is that after the unscheduled visit of the Md to Oregun yard it was discovered that 24 nos of 205 liters of drum was hidden in various secretive areas of the depot . The claimant had no satisfactory explanation to as the mandatory policy and industrial practice of the defendant is specific on storage as same cannot be stored in drums or containers other than plastic tanks installed by the defendant in the depot . This averment by the defendant cannot be true as Dw  specifically testified under cross examination  that the defendant had no plastic drums in the depot. The law is that an employer has the right to discipline an employee on any infraction discovered except where he decides to condone same .  In this case the defendants action of not disciplining the claimant on discovery of 40 tanks set aside cannot be taken as condoning as there is clearly nothing to show that a misconduct has been established to bring it within the contemplation  of  the principle of condoning in Arinze v First bank ( Nig ) ltd ( 2000) 1 NWLR 9 pt (639) 78 CA  thus

‘’The principle in E.C.N. v Nicol ( 1968) 1 ALL NLR 201 which says that where na employer does not complain about an employees conduct , the employer is regarded as condoning the servants act and cannot use it as a ground for dismissal on a subsequent occasion’’

  If the defendant discovered that 29 gallons of  diesel totaling 205 liters of drum were   kept aside what action did the defendant take . I must also observe again that although counsel for the defendant argued that the claimant agreed that he was  involved with the saga of diesel put in different places in the yard , he failed to tell us what evidence he has placed to show such admission .   This to me is a mere allegation without proof and what Arinze v first bank ( supra ) seeks to bring out is that the principle enunciated above does not apply where what   is proffered as evidence is shrouded in technicality by the facts that are spiced with quibbles . this is what the defendant did having not presented any evidence to support the allegation levelled against the claimant     The description by the defendant of the liters of drum is unclear and how they arrived at the exact liter . That the claimant was taken to Magodo police station is not supported aby any evidence . The defendant did not tender any document to support their allegations / counterclaim .  it is trite law that facts deposed to in pleadings must be substantiated and proved by evidence , in the absence of which the averments are deemed abandoned as evidence must be led to prove the facts relied on by party or to sustain allegations raise in pleadings  See Aregbesola v Oyinlola ( 2011) 9 NWLR ( pt 1253) 458 at page 594 . There is no evidence to substantiate the allegation of litres of diesel being hidden with intent to transport the tanks resulting in loss to the defendant .    see Kwande & Anor v mohammed & ors 2014 LPELR  22575 (CA) where the court succinctly stated that pleading s do not constitute evidence ‘’ The filing and exchange of pleadings is the bedrock of the trial in civil actions . Pleadings are facts as perceived by the party relying on them . They do not constitute evidence . it is therefore wrong for any party to treat an averment in a pleading without evidence as evidence of matters averred therein . See OMO-AGEGE V OGHOJIAFOR & ORS ( 2010) LPELR – 4775 ( CA) and  CAMEROUN AIRLINES V MIKE OTITUIZU ( 2011) 4 NWLR 512’’  As pleadings alone cannot establish the facts pleaded without evidence , failure to prove pleaded facts would leave the pleadings abandoned and liable to be struck out . The defendant has inherently abandoned the pleading as there is nothing for the pleadings to stand on . In this case , the defendant has not led evidence to establish the allegation of any misconduct not even a query . The evidence of DW under cross examination neither established all the line of allegation against the claimant which are  missing , stolen mismanaged ., improperly stored or preserved diesel product whereby the said diesel product was rendered contaminated, wasted and unfit for marketing by the defendant. These allegations are not supported by evidence . 

 

 

 

  The next issue is whether the claimant is entitled to the payment of his salary  from may to December 2017 when his employment was terminated . The claimant claims the sum of  N320, 000 as salary for eight months .The defendant’s argument is that the claimant employment has been properly terminated and that he stopped coming to work since May 2017  while the claimant’s argument is that he remains an employee until the termination of his employment in December 2017 as he continued working with the defendant . Exhibit IA4 is the letter of termination , thus the issue of termination without notice being wrongful has already been decided earlier in this judgment . In SPDC ( NIDG  ) LTD V RSNNIE & ANOR ( 2018) LPELR on burden of proof    held thus  ‘’ In civil cases the general burden of establishing the case lies on the plaintiff , but this burden is not static as it may fall on the defendant as the case progresses . see ADEGOKE V ADIBI /9 19920 5 NWLR ( PT 242 ) 410

 The duty of the defendant is to show that the claimant abandoned the office after his posting to the new department as the law is that  he who asserts must prove .   The defendants averment in paragraph 6 of the statement of defence and counterclaim /set off  that the on the spot explanation of the claimant to the managing director of the defendant was not satisfactory or convincing and was full of incoherence and self contradictions are all mere averments without evidence .

There is no clear picture of what happened when he was sent to the new department and the action taken by the defendant as the defendant submit that while the claimant is entitled to his salary for may , he is not entitled to salary after that till December without explanation . The defendant has not referred to the particular date the claimant  stopped work and how he decided to come in December only to collect his letter of termination .Suffice to say however that the story of the claimant  is more believable as a claimant who abandoned his job cannot be given letter after 6 months as the defendant has not told the court that his whereabout was unknown . Can the claimants absence from work for 6 months stand in the face  the defendants contention that he abandoned his work  and is only entitled to May  2017 salary . In the absence of any  reasonable explanation on the claimants purported  absence from work for a long period of six months with no query or termination being disciplinary measures which the law provides for, the story of the claimant is more believable  . This means that the claimant is entitled to be paid the backlog of his  salary  from May 2017 to December 2017 . By exhibit IA 1  under  consideration is 40,000 a month and for 8 months comes to 40 x 8 = N320,000. I find and hold that the claimant is entitled to the sum of 320,000 being 8 months salary        

 

 

Relief 2 is for General damages in the sum of N500,000 for the financial hardship and d discomfort suffered by the claimant for unpaid salary arrears . The claimant averred in paragraph 16 that the non payment of the claimants salaries has caused financial obligations being a family man with children . the defendants response is that the claimant is not a family man with children , This court by virtue of section  19 (d)  of the NICA can award damages  , I hereby award damage of 3 months salary

 On the issue of cost , it is a t the discretion of the court .

 

Now to the counterclaim of the defendant , the defendant/counterclaimant claimed as follows:

 

1.     A DECLARATION that the Claimant did not work for the Defendant and, therefore, is not entitled to payment of monthly salary (otherwise payable to him by the Defendant/Counter-Claimant) for the respective months of June­ - December, 2017 (both months inclusive) and either at the monthly rate of N40,000.00 only or at all.

 

2.     A DECLARATION that the Claimant's salary for the month of May 2017 (otherwise payable to the Claimant by the Defendant) is properly and appropriately deductible, deducted and withheld by the Defendant/counter-­Claimant as a SET OFF and as part-payment of the indebtedness of the Claimant to the Defendant/Counter-Claimant and as per the sum of N969,240.00 only being the total value of loss of 4,920 litres of diesel products negligently inflicted on the Defendant/Counter-Claimant by the Claimant (and as already pleaded above).

 

3.     A CONSEQUENTIAL ORDER of forfeiture of the aforesaid salary of N40,000.00 only for the month of May 2017 by the Claimant to the Defendant/counter-Claimant; and accordingly.

 

4.     A DECLARATION that the Claimant/Respondent is liable to fully compensate and indemnify the Defendant/Counter-Claimant for the unaccounted loss/shortfall/contamination/wastage/disappearance/ evaporization in the quantity of 4,920 litres of diesel (which monetary value is N969,240.00 at the rate of N197 per litre) and all INTEREST accruing upon said trade capital commencing from 27/5/2017 until final liquidation of the judgment debt hereof.

 

5.     The sum of N969,240.00 only being the total value of 4,920 litres of diesel products of the Defendant/Counter-Claimant which is contaminated, wasted and unaccounted for by the Claimant (and minus the Claimant's salary for the month of May, 2018: N40,000.00 only).

 

6.     INTEREST at the rate of 23.5% (or any other rate adjudged by the Hon. court) on the aforesaid N969,240.00 only per month and commencing from 27/05/2017 until the final liquidation of the judgment sum herein.

 

7.     The sum of N750,000.00 being professional legal services fee incurred by the Defendant/Counter-Claimant in defending this suit and prosecuting this counter-Claim/setoff.

 

The sum of N1,320,760.00 only being general damages for industrial negligence, nuisance, embarrassment, harassment, malignment, official and judicial blackmail and, to wit, malafide gold-digging.

 The defendant counter claimant adopts paragraph 1 – 17 of the statement of defence and counterclaim/ set off .  As earlier held in this judgment , the defendant has not proved entitlement to any of the counterclaims . The counterclaims are hereby refused and dismissed

For the avoidance of doubt the court hereby make the following orders

1.     The defendant shall pay to the claimant the sum of N40,000 being one month salary in lieu of notice

 

 

2.     The defendants shall pay the sum of N320,000 (three hundred and twenty  Thousand Naira Only) to the claimant being his arrears of salary from May to December 2017

3.      The defendant is ordered to  pay to the claimant general damages in  the sum of  120,000 being equivalent   3months salary  

4.     I award cost of N 100, 000 (hundred  thousand Naira) to be paid by the defendant to the claimant.

 

5.     All sums are to be paid within 30 days from the date of this judgment, thereafter, the sums shall attract interest at the rate of 10% per annum.

 

Judgement is entered accordingly.