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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                                    HON. JUSTICE M. N. ESOWE

 

DATE: NOVEMBER 19, 2024                           SUIT NO.: NICN/LA/33/2017

 

BETWEEN

MR TUNDE ADJOTO                                                                    CLAIMANT

 

AND

AROUND ‘D’CLOCK SECURITY COY LTD                  DEFENDANT

 

REPRESENTATION

Counsel for the Claimant absent

T. G. Ukogu, Esq for the Defendant

 

JUDGMENT

1.     INTRODUCTION

2.     The Claimant was offered employment with the Defendant on 07.10.2015 as its General Manager, a role he occupied until his resignation sometimes on 01.12.2016. The Claimant alleges he was subjected to unfair labour practice, tasked with discharge of menial jobs which he was not employed for. That the termination of his employment following his resignation was contrary to the terms of his employment, claims the Defendant vehemently denies. Whereof the Claimant as per his General Form of Complaint and Statement of Facts seeks the following against the Defendant:

 

a)    A DECLARATION that the purported termination of the Claimant by the Defendant vide its Defendant’s letter dated 20.12.2016 is null and void and is of no effect whatsoever and consequently the Claimant, is entitled to his salaries, wages and all necessary entitlements from 01.12.2016 till the date of judgment.

b)    AN ORDER of specific performance commanding the Defendant to perfect the sale of the Nissan Micra Car with registration number GGE 420 BW which had been sold to the Claimant especially by delivering the original documents of the said car to the Claimant and effecting the necessary change of ownership.

c)     AN ORDER commanding the Defendant to pay the Claimant his salaries, wages, leave allowance, all unlawful deductions and all necessary entitlements from 07.10.2015 to February 2017 and till the date of judgment:

        i.            Salary in lieu of notice, unlawful deductions,

Outstanding leave allowance                                       N1,379,050.00

     ii.            Gratuity and February 2017 salary                          N1,180,000.00

   iii.            General damages                                                              N10,000,000.00

Total                                                                                      N12,559,050.00

 

3.     On receipt of the Claimant’s General Form of Complaint and accompanying processes, the Defendant entered appearance and filed its Statement of Defence/Counterclaim. In its Counterclaim, the Defendant/Counterclaimant alluded that contrary to the Claimant’s averments of meritorious service, the Claimant performed below expectation and did not serve the Counterclaimant meritoriously. The Counterclaimant never sold or auctioned the Nissan Micra Car to the Claimant/Defendant to the Counterclaim. Whereof the Defendant/Counterclaimant seeks against the Claimant/Defendant to the Counterclaim the following:

 

        i.            A DECLARATION that the termination of the Claimant’s employment was lawful and in accordance with the contracts of employment.

     ii.            AN ORDER for the return of the Nissan Micra Car with registration number GGE 420 BW which was provided for the Claimant for his use during the period of his employment with the Defendant.

   iii.            AN ORDER for the payment of the sum of Ninety-six Million Naira (N96,000,000.00) for loss of earning and income for the period which (the Claimant) ran the affairs of the Defendant as a General Manager.

   iv.            The sum of One Hundred Million Naira (N100,000,000.00) for breach of contract.

      v.            The sum of One Hundred Million Naira (N100,000,000.00) for general damages.

   vi.            The cost of this Counterclaim.

 

4.     The Claimant responded to the Statement of Defence/Counterclaim with a Reply and Defence to the Counterclaim, following which the Defendant/Counterclaimant filed a Reply pleading to the Claimant’s Defence to its Counterclaim.

 

5.     TRIAL

6.     The Claimant testified as CW1, he adopted his written depositions as his evidence in chief, through him eighteen (18) documents were tendered in evidence, admitted and marked as exhibits C1 to C18 respectively. CW1 was cross-examined, and he thereafter closed his case. On behalf of the Defendant, one Bukola Bakare, managing director of the Defendant, testified as DW1, she adopted her written deposition as her evidence in chief, through her fifteen (15) documents were tendered in evidence, admitted and marked as exhibits D1 to D15 respectively. DW1 was cross-examined, following which, the Defendant closed its defence. The matter was then adjourned to enable parties file and exchange their respective Final Written Addresses to be adopted at the adjourned date.

 

7.     DEFENDANT’S FINAL WRITTEN ADDRESS

8.     Learned Defence Counsel on behalf of the Defendant/Counterclaimant formulated these issues for determination, to wit:

 

a)    Was there a contract between the parties.

b)    Was there expectation from both parties.

 

9.     Arguing these issues, Learned Counsel contended that there was a contract between the parties, and that is why terms are contained in the offer of employment letter. He argued that parties are bound by the express terms and conditions of a contract of employment in writing – P. O. U. Iyase v University of Benin Teaching Hospital Management Board (1999) Legalpedia (CA) 61141. Counsel proceeded to provide the definition of employer and employee as captured in Section 91 of the Labour Act, contending that as an employee, the Claimant was negligent in his duty, failing to discharge his duties with due care, earning him several queries. He argued that the Claimant has been unable to prove any of his claims. That the Defendant/Counterclaimant at the point of engaging the Claimant set out targets to be realised by him, rather the Claimant breached the contract by not meeting up with the expectation which caused losses and havoc to the Defendant. Counsel urged the Court to grant the counterclaim and dismiss the Claimant’s suit.

 

10.   CLAIMANT’S FINAL WRITTEN ADDRESS

11.   The Learned Claimant’s Counsel began his address by raising objection to the admissibility of the documents marked as exhibits D2 copy of memo dated 02.11.2015), D3 (copy of memo dated 11.11.2015), D5 (copy of memo dated 15.01.2016), D12 (internal memo dated 28.09.2016), D13 (internal memo dated 02.11.2016) and D14 (internal memo dated 29.12.2015) contending that these documents are inadmissible as they were fabricated to smear the Claimant and the Claimant was never in receipt of some of these documents. Learned Claimant’s Counsel then submitted the following issues for determination, to wit:

 

a)    Whether the Claimant has adduced credible evidence to entitle him to his claims against the Defendant before this Honourable Court?

 

b)    Whether having consideration to the entirety of evidence before this Court the Defendant is entitled to its counterclaim against the Claimant?

 

12.   Arguing issue one, the Learned Counsel argues that the Claimant has provided compelling evidence to justify the reliefs sought. Exhibits C4 and D8 contradict the testimony of DW1, which supports the Claimant's case. Exhibit D1 requires management staff to give three months' written notice. The Claimant testified that his termination did not follow due process and that he was not given a fair hearing. Furthermore, the Claimant denies receiving exhibit D12. Assuming exhibit D12 is authentic and was served on the Claimant on September 28, 2016, it still does not validate exhibits C4 and D8 dated December 20, 2016, nor does it comply with paragraph 8(11)(b) of exhibit D1. Non-compliance with exhibit D1 means the Claimant was not properly terminated and is entitled to salary payments from when his salary was stopped until judgment is delivered.

 

13.   The Claimant’s notice of resignation was rendered ineffective by the Defendant's arbitrary and unlawful actions, which prevented him from continuing his duties. If the Defendant had not interfered, the resignation would have taken effect on February 28, 2017. When the Court finds a termination wrongful, a remedy must follow. Proper notice and salary in lieu of notice must be given on the employee's last working day, otherwise, the termination is invalid. The Court has held that employees are entitled to gross salary in lieu of notice unless otherwise stated. Exhibits C1, C2, C3, and C14 provide evidence that the Claimant's gross salary is N180,000.00 per month. Exhibit D1 does not limit the amount due in lieu of proper notice. Learned Counsel also highlighted evidence that the Defendant did not pay the Claimant's salary for December 2016 and made unlawful deductions, as shown in exhibits C3 and C15.

 

14.   Although, the Defendant claimed these deductions were for tax purposes, exhibit C7 disproves this. The Claimant testified that the Managing Director subjected him to demeaning treatment, including insults and menial tasks, which the Defendant admitted. These actions entitle the Claimant to claim damages for wrongful termination and humiliation. Counsel for the Claimant argues that the Defendant failed to prove its counterclaim. The Defendant relied on fabricated documents and failed to comply with its handbook, attempting to portray the Claimant as an ineffective employee. Exhibits C5, C6, C8, C9, and C10 demonstrate the Defendant's situation before and during the Claimant's tenure as General Manager. The Defendant's denial of selling the Nissan Micra car to the Claimant is unfounded, as exhibit C11 was not contested and the part payment of N100,000 was not proven to be for personal loan. Therefore, the Defendant's counterclaim should be dismissed.

 

15.   RESOLUTION

16.   Having regards to the facts and circumstances of this suit, the pleadings, evidence adduced, submissions of Learned Counsel on both sides, the Court distils the issues below for determination, namely:

 

  i.      Is the Claimant entitled to the reliefs sought herein in the light of the evidence adduced by him before the Court.

ii.      Whether the Defendant is entitled to the counterclaim?

 

17.   Before delving into the resolution of the issues, it is important to first consider the objections raised by the Learned Claimant’s Counsel to the admissibility of exhibit D2 (copy of memo dated 2nd November, 2015); exhibit D3 (copy of memo dated 11th November, 2015); exhibit D5 (copy of memo dated 15th January, 2016); exhibit D12 (Internal memo dated 28th September, 2016); exhibit D13 (Internal memo dated 2nd November, 2015); exhibit D14 (Internal memo indicating the performance target for the Claimant dated 29th December, 2015). According to the Learned Counsel, exhibits D2 and D13 have the same subject matter and date with some differences in terms of fonts, line spacing and arrangement of paragraphs. This to him speaks to the dubious nature of the documents and should be construed against the Defendant. Learned Counsel also argued that exhibits D3 and D14 are the same documents with different dates. For exhibits D2, D5 and D12, D13 Counsel argued that there was nothing on the face to show that there were served on the Claimant.

 

18.   Generally, admissibility of evidence and of documents in particular are governed by three elements or conditionalities, which are, there must be pleaded facts in the pleadings in respect of the document sought to be admitted in evidence; it must be relevant to the issue in controversy or dispute between the parties before the Court; and it must be admissible regard had to other basic requirements on admissibility of evidence in general. See Oluyemi v Asaolu (2010) ALL FWLR (Pt. 522) 1682; Iyagba v Sekibo (2009) All FWLR (Pt. 466) 1975; PAC v INEC (2009) All FWLR (Pt. 478) 260; Abubakar v Chuks (2007) 18 NWLR (Pt. 1066) 386; Ali v Ugwu (2012) All FWLR (Pt. 619) 1079. In the instant case, exhibits D2, D3, D5, D12, D13 and D14 are documents relating to the dispute between the parties. In the circumstance, the documents are relevant to the suit between the parties. See NITEL Plc v Ayu (2008) All FWLR (Pt. 411) 904; Iliyasu v Ahmadu (2011) 13 NWLR (Pt. 1264) 236 at p.253, paras. B-E.

 

19.   Even so relevancy is what governs the admissibility of a document. Once a document is pleaded and it is relevant, and it is a document which can ordinarily be admitted under the Evidence Act, the fact that it is a photocopy should not obstruct its admissibility. The probative value attached to the document however is another kettle of fish. See Obembe v Okele (2001) 10 NWLR (Pt. 722) 677; Oshunrinde v Akande (1996) 6 NWLR (Pt. 455) 383; Artra Industries Ltd v N.B.C.I. (1997) 1 NWLR (Pt. 483) 574; Magaji v Nigeria Army (2008) 8 NWLR (Pt. 1089) 338; F.B.N. Plc. v Okelewu (2013) 13 NWLR (Pt. 1372) 435 at p.472, paras. B-D. The Court has assessed the documents in question and makes the following findings: I agree with the argument of the Learned Counsel for the Claimant that exhibits D2 and D13 have same content. The difference is that exhibit D2 is an unsigned version of exhibit D13. An unsigned document is a useless document, worthless for all purposes that require authentication for authenticity - N.U.C. v. Uyo (2023) 16 NWLR (Pt. 1910) 309 at 361, para. C; p.368, para. E. Accordingly, exhibit D2 is marked tendered but REJECTED.

 

20.   Exhibits D13 and D14 on the other hand bear the signature of the Claimant evincing that he received it. Being documents that were pleaded and are relevant to proving the Defendant’s stance, same are held to be duly admitted. The Claimant submitted that exhibits D5 and D12 were never served on him but were fabricated to tarnish his image. Upon careful examination of exhibits D3, D5 and D12, it suffices to say that there truly is nothing on the face of these documents to show that the Claimant had knowledge of its existence or was ever in receipt of same. Having denied its existence, the onus fell on the Defendant to proof that the Defendant had knowledge or in fact received the documents which it failed to do. For this reason, the said documents are hereby marked tendered but REJECTED.

 

21.   For his relief one, the Claimant is seeking a declaration that the purported termination by the Defendant vide its Defendant’s letter dated 20.12.2016 is null and void and is of no effect whatsoever and consequently the Claimant, is entitled to his salaries, wages and all necessary entitlements from 01.12.2016 till the date of judgment. Declaratory reliefs are not granted as a matter of course, the Claimant has a duty to plead and prove his entitlement to the declaration sought. His evidence must be such that is overwhelming, total, convincing and credible, evidence which is natural, reasonable and probable in the peculiar circumstances of the case - In-Time Connection Limited v Ichie [2009] LPELR-8772[CA]. Therefore, the success or otherwise of a Claimant’s claims is solely dependent on the strength of his case and not on the weakness or absence of the defence, and not even on admission by the Defendant - A. G., Rivers State v A. G., Federation & Anor [2022] 15 NWLR [Pt. 1852] 99 at 166, 218; Adama & Ors v Kogi State House of Assembly & Ors [2019] 16 NWLR [Pt. 1699] 501 at 531; Ilori & Ors v Ishola & Anor [2018] 15 NWLR [Pt. 1641] 77 at 94.

 

22.   The weight of the evidence must be such that when placed on the imaginary scale, the Claimant’s evidence weighs more than the evidence adduced by the Defendant - Obanla v A. A. Group Nigeria Limited [2022] LPELR 57899 [CA] 18. It is the law that a person who asserts the state of facts in a pleading is bound to substantiate it - Sections 131, 132, 133[1] and 136[1] of the Evidence Act, 2011; Abayomi v Saap-Tech Nigeria Limited [2020] 1 NWLR [Pt. 1706] 453 at 492; Ibezim v Elebeke & Ors [2022] 4 NWLR [Pt. 1819] 1 at 41; Umera v Nigerian Railway Corporation [2022] 10 NWLR [Pt. 1838] 349 at 387. Both parties agree that the Claimant was an employee of the Defendant at the material time and that their relationship was governed by exhibit D1 (Around ‘D’ Clock Security Company Limited Employee’s Handbook and General Condition of Service).

 

23.   In summary, the Claimant seeks a declaratory order that the termination process was flawed, asserting that the termination by exhibit C3 dated 20.12.2016 did not comply with the employee’s handbook (exhibit D1). Consequently, the Claimant argues that the termination is invalid, and he is entitled to salary payments from the stoppage of his appointment until judgment. The Defendant on the other hand, argues that the termination was in accordance with the mutual agreement binding both parties. That the Defendant had given the Claimant three months’ notice as evidenced by the letter dated 28th September, 2016 (exhibit D12). The same letter has been expunged from the Court’s records. It follows that a Court must not rely on a document that does not constitute part of its records as it is bound by its records. It must also not rely on contents of a document it had itself rejected or excluded as an exhibit. See Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180 at 226.

 

24.   The Claimant resigned from the employment of the Defendant via a letter of resignation (exhibit C10 dated 01.12.2016) although he contends that his resignation notice was rendered ineffective by the Defendant's interference. The position of the law regarding letters of resignation is that it takes effect from the date it is delivered and received by the employer or its agent. There is absolute power to resign and no discretion to refuse or accept the notice of resignation. See Sanusi & Anor v INEC & Ors (2023) LPELR-61261(CA). Given that the resignation letter (exhibit C10) predates the termination letter (exhibit C3), the Claimant’s resignation had already taken effect as at 01.12.2016 when the letter was received. Since the Defendant did not deny receiving exhibit C10, the subsequent termination by the Defendant holds no significance. It was essentially, a case of "medicine after death" as one cannot place something on nothing and expect it to stand. Exhibit C10 had brought an end to the contractual relationship between the parties.

 

25.   It is noteworthy that the facts of this case and the evidence adduced indicate ubiquitously that CW1’s resignation was induced by the conducts of his employer which hints that the Claimant was constructively dismissed. In exhibit D9 (Reply letter by the Defendant’s Solicitors) the Defendant’s Counsel reiterated that the Defendant had given the Claimant both verbal and written notice requesting his resignation or disengagement. This supports the stance that the Claimant supposedly did not resigned voluntarily. Moreover, the Claimant pleaded and testified that the Defendant had short paid some of his salaries without explanation and subjected him to verbal abuses in front of his subordinates and causing him (the General Manager) to carry turkey feeds and sawdust for their livestock (an act he considered inhumane and degrading).

 

26.   A constructive dismissal occurs when an employee does not resign voluntarily but because the employer has created a hostile or intolerable environment, or deliberately made the workplace unfavourable. This Court in Miss Ebere Ukoji v Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 held inter alia: “Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country but generally, a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or a pattern of incidents, generally, the employee must have resigned soon after the incident.”

 

27.   It nevertheless seems the Claimant's Counsel did not advert his mind to this position of the law to take advantage of the available remedy. As a Court of law, the Court cannot grant reliefs that parties have not sought and must constrain itself to the claims of parties. In Think Ventures Ltd v Spice & Regler Ltd (2021) 2 NWLR (Pt. 1759) 114 at p. 131, para. G, it was held that a Court is bound by the reliefs sought and cannot grant what a party did not claim. This principle is rooted in procedural law, based on the rationale that a party approaching the Court knows what it wants. The Court, acting as an impartial umpire, cannot presume to know the reliefs better than the party. This was also emphasized in Cappa and D’Alberto (Nig.) Plc v N.D.I.C. (2021) 9 NWLR (Pt. 1780) 1 at p. 14, paras. D-G.

 

28.   The second leg of this relief is a declaration that the Claimant is entitled to his salaries, wages and all necessary entitlements from 01.12.2016 till the date of judgment. From the totality of evidence before the Court, it is clear that the employment relationship between the parties in this suit is not statutory. It is purely a master and servant relationship guided by the common law. In such a relationship the law is settled that, where either party bring the relationship to an end, they ordinarily cannot claim any benefits from the contractual relationship other than those that predates the termination of the contract of employment. So where an employee resigns, he can only be entitled to such benefits that accrued to him prior to his resignation or such that comes with his resignation. Such an employee after his resignation cannot seek salaries for work not done.

 

29.   Considering the foregoing, the employment relationship between the parties effectively ended when the Claimant submitted his resignation letter, making the subsequent termination by the Defendant irrelevant. The Claimant was prepared to complete his three months’ notice period to avoid paying salary in lieu of notice, but the Defendant interfered. As the Defendant insisted on the Claimant’s immediate exit, it became liable to pay the Claimant his salaries in lieu of the notice period. Consequently, the Court holds that the Defendant's purported termination of the Claimant’s employment via letter dated 20.12.2016 is null and void. Accordingly, the Claimant is entitled to salaries in lieu of notice from 01.12.2016 till 28.02.2017 when his notice period would have lapsed. I so hold.

 

30.   For his relief two, the Claimant is seeking for an order of specific performance commanding the Defendant to perfect the sale of the Nissan Micra Car with registration number GGE 420 BW which had been sold to the Claimant especially by delivering the original documents of the said car to the Claimant and effecting the necessary change of ownership. The Claimant in his averment and testimony contends that sometime in September 2016, the Defendant advertised the sale of its official Nissan Micra Car with registration number GGE 420 BW for the sum of N400,000.00 and eventually sold the car to him on 24th October, 2016 at the rate of N400,000.00 after refusing lower bids from other prospective bidders. He maintains that he paid a deposit of N100,000.00 to the GT Bank account of Mrs Bukola Bakare the Managing Director of the Defendant on the 25th of October, 2016, a stance the Defendant denies.

 

31.   To substantiate his claim, the Claimant has put forward in addition to his testimony during cross examination, exhibit C9 letter dated 19th December, 2016 (Re: Outstanding salaries/balance of Nissan Micra Reg. No. GGE 420 BW) where the Claimant was asking for his outstanding salaries to enable him complete payment for the car and exhibit C18 (GT Bank deposit slip evidencing payment of N100,000.00 only on 25th October, 2016. The Defendant alleges that it never sold the official car to the Claimant. That it was the Claimant who refused to return his official car upon his exit from the company and that the money paid by the Claimant was a repayment of loan given to the Claimant by the Managing Director. The Defendant however did not adduce evidence of when the loan was advanced to the Claimant and the amount advanced to the Claimant or any document supporting the said loan grant. The said Defendant cleared the Claimant on his exit, presupposing that it did not consider the possession of the car by the Claimant at the point of his clearance as untoward. It is thus estopped from claiming otherwise now. See Section 169 of the Evidence (Amendment) Act, 2023.

 

32.   Having examined the documents presented by the Claimant, the Court finds them to be sufficient proof of his stance. The Claimant has successfully discharged the evidential burden placed on him, shifting the burden of proof to the Defendant, who failed to provide counter evidence. The Supreme Court case Ohiaeri v Yussuf & Others (2009) LPELR - 2361 (SC) established that when there is a valid agreement regarding the sale of property, and the circumstances allow for equitable discretion, the Court can order specific performance, provided the agreement is neither illegal nor against public policy. Similarly, in Victor Eka v Kuju (2013) LPELR 22124 (CA), the Court held that in a property sale contract with part payment, the contract is considered complete and enforceable, allowing either party to seek specific performance. The case Rano v Rano (2019) LPELR-51279(CA) further supports this view, indicating that a Court of equity will order specific performance if the Plaintiff has partially or wholly executed their part and is in possession of the property, even without a formal deed of sale or assignment.

 

33.   In the absence of any contrary evidence, the Claimant’s relief two hereby succeeds. The Court orders the Defendant to complete the sale of the Nissan Micra Car with registration number GGE 420 BW by delivering the original documents to the Claimant and effecting the necessary change of ownership. Concurrently, the Claimant is ordered to pay the Defendant the outstanding sum of N300,000.00, representing the balance of the sale price. I so hold.

 

34.   For his relief three, the Claimant is asking for an order commanding the Defendant to pay the Claimant the sum of N12,559,050.00 being his salaries, wages, leave allowance, all unlawful deductions and all necessary entitlements from 07.10.2015 to February 2017 and till the date of judgment in the manner set out (i) Salary in lieu of notice, unlawful deductions, Outstanding leave allowance N1,379,050.00; (ii) Gratuity and February 2017 salary N1,180,000.00 and (iii) General damages N10,000,000.00. For his claim for salary in lieu of notice, unlawful deductions, and outstanding leave allowance of N1,379,050.00; the Claimant’s claim is for N839,050 being deductions from salaries, leave allowance, unpaid salaries and the sum of N540,000.00 for 3 months’ salary in lieu of notice bringing it to the total of N1,379,050.00. There is no dispute between the parties that the Claimant as evinced by exhibits C1 and C2, was to receive N1,800,000.00 annually (N150,000 monthly) with other benefits such as fuel allowance N25,000, call card N5,000.

 

35.   Each of these heads of claim will now be considered serially. On the issue of salary in lieu of notice, this Court held that the Defendant was liable to pay to the Claimant his salary for the notice period from 01.12.2016 to 28.02.2017 since the Claimant was ready to complete his three-month notice period to avoid paying salary in lieu of notice as required under clause 8 (II) (b) but for the Defendant's insistence on the Claimant's immediate exit. Salary in lieu of notice presupposes the payment of salaries only in lieu of notice. Therefore, the Claimant is only entitled the sum N450,000.00 (N150,000.00 for each month December 2016 to February 2017). Regarding unlawful deductions, the Claimant alleged that the Defendant made several deductions from his salary and allowances. To support his claim, he presented exhibit C2 (letter dated 19th December, 2016), exhibit C6 (Claimant’s Solicitor's letter dated January 5th, 2017), exhibit C9 (letter dated 19th December, 2016), and exhibit C13 (bank statement from Skye Bank). Exhibit C2 included a table of deductions prepared by the Claimant in his letter to the Managing Director.

 

36.   The Defendant argues that exhibit C2 was only written by the Claimant after he received the termination letter and back dated same. Coincidentally, the said document was also tendered by the Defendant (exhibit D7), who even though admits to the deductions argues that the deductions were for tax purposes. The Defendant, who claimed the deductions were lawful and for Income tax payable to Ogun State government; deductions based on recovery of the loss of money associated with his incompetence as apportioned to him and general salary reduction arising from the need to cut costs which applied to all staff including the Managing Director, needed to provide evidence of the tax amounts payable by the Claimant and evidence of such loss occasion by the Claimant. See Section 5 of the Labour Act. The documents, particularly exhibits C2 and C13, revealed inconsistent deductions across months, raising questions about the varying tax liabilities of the Claimant; a point that only the Defendant, who made the deductions, can clarify through credible evidence. It is untoward for an employer to unilaterally embark on salary reduction of its employees in the bid to cut cost as the Defendant puts it.

 

37.   From the Claimant’s calculations, the total deductions amounted to N839,050.00 being deductions from salaries, leave allowance, unpaid salaries. This computation includes the sum N165,000 unpaid salaries for December 2016 and N180,000 January 2017 and N150,000 for leave allowance. This Court already ordered the payment of salaries for December 2016 to February 2017. Granting this leg of the claim as presently constituted, that is, including December 2016 and January 2017 salaries would amount to double compensation which the law frowns at. In Thompson & Anor v Akingbehin (2020) LPELR-58287(SC) the Supreme held, “It is however trite that the law frowns on double compensation. Where a party has been sufficiently compensated for a wrong under one head of claim, it would amount to double compensation to grant an award for the same injury under a different head. See Agu v General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327. Also, on leave allowance, the Defendant tendered exhibit D6 wherein the Claimant had asked that his leave allowance be paid alongside his November 2016 salary. This request was refused and the Claimant was referred to the provisions of the Condition of service (exhibit D1) even though the Claimant claims that the purported minute on exhibit D6 was doctored.

 

38.   Nevertheless, I have examined exhibit D1 which both parties admit regulates their employment relationship and find no provisions regarding payment of leave allowance. The Claimant also did not lead evidence to show what terms, or agreement entitles him to claim same. This leave the Court with the sum of N344,050.00 proven deductions. Consequently, under this leg of the Claimant’s claim, the Court concludes that the Claimant is entitled to a total sum of N794,050.00, that is, salary in lieu of notice – N450,000.00 plus N344,050.00. This amount covers the Claimant’s salaries for the notice period from 01.12.2016 to 28.02.2017 and unlawful deductions from salaries and allowances. An employee’s entitlement to compensation is subject to the provisions of his/her contract of employment. Typically, an employee is entitled to receive any accrued contractual payments, such as accrued salaries, until the effective termination date and such other payments that may be due to the employee, under the terms of his/her employment contract.

 

39.   The Claimant is seeking an order of the Court for Gratuity and February 2017 salary to the tune of N1,180,000.00. However, there nothing before the Court to prove how the Claimant arrived at his computation of the sum of N1,000,000.00 for gratuity or how he is entitled to same. Therefore, the Court cannot grant the Claimant’s claim for gratuity in the absence of evidence. Likewise, the Claimant’s claim for February 2017 salary under this heading cannot be granted as it has been resolved under the earlier heading. The last sub-head on the computation of the Claimant’s entitlement (paragraph ‘iii’) concerns the award of general damages amounting to N10,000,000.00. The Claimant asserted that prior to his purported dismissal from the Defendant’s service, he was subjected to several ill-treatments that denigrated his human dignity. Specifically, in April 2016 and in October 2016, Mrs. Bukola Bakare, the Managing Director, humiliated the Claimant by verbally abusing him and assigning him tasks such as carrying turkey feed and sawdust for their livestock, duties unrelated to his security contract job.

 

40.   The Defendant contended that it had always treated the Claimant with the utmost respect and courtesy, denying any inhumane or degrading treatment during his employment as the General Manager. The Defendant further argued that the poultry was meant to raise birds as Christmas gifts for staff and clients, with all staff participating in its upkeep. Additionally, the Claimant never expressed disapproval of the poultry operations, from which he also benefited. The Court observed that the Defendant's failure to recognize the impropriety of subjecting its General Manager to such tasks highlighted the adverse work environment and conditions the Claimant endured. General damages are those implied by law in every breach and violation of a legal right. They represent a loss that flows naturally from the Defendant's actions, and their quantum need not be pleaded or proved, as it is generally presumed by law.

 

41.   Quantifying general damages involves considering the opinion and judgment of a reasonable person under the circumstances of the case. Unlike special damages, which must be specifically pleaded and proved, general damages are presumed to be the direct, natural, and probable consequence of the act complained of and are generally incapable of exact evaluation. Therefore, in awarding damages, a trial Court must assess the quantum of such damages based on the evidence presented and not on speculative claims or scanty facts. Olokunlade & Ors v Ademiloyo (2011) LPELR-3943(CA). From the forgoing, the Claimant’s relief three is resolved in part in favour of the Claimant and against the Defendant only to the extent that the Defendant is ordered to pay the Claimant   sum of N794,050.00 being Claimant’s salary for the notice period from 01.12.2016 to 28.02.2017 and unlawful deductions from salaries and allowances. The Court also assesses the sum of N300,000.00 as general damages for the inhumane and degrading treatment meted on the Claimant by the Defendant.

 

42.   In resolving issue two, whether the Defendant is entitled to the counterclaim, it is trite that a counterclaim 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 counterclaim 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 Counterclaim. The procedure of a counterclaim 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 counterclaim must pass the test of pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act".

 

43.   Relief one seeks a declaration that the termination of the Claimant/ Defendant to the Counterclaim’s employment was lawful and in accordance with the employment contract. The Defendant/Counterclaimant argued that the termination followed the mutual agreement between both parties. The letter of termination dated 20th December, 2016 came after the Defendant to the Counterclaim’s letter of resignation dated 01.12.2016. Given that the law regarding resignation letters states they take effect from the date they are delivered and received by the employer or its agent, the subsequent termination by the Defendant is rendered insignificant. The Defendant did not deny receipt of the letter resignation, making the termination inconsequential and null and void. Thus, this leg of the Counterclaimant’s relief is dismissed. I so hold.

 

44.   For relief two, the Counterclaimant is seeking an order for the return of the Nissan Micra Car with registration number GGE 420 BW, which was provided for the Claimant/Defendant to the Counterclaim during his employment with the Defendant. The Counterclaimant maintains that it never sold the official car to the Claimant that the Claimant/Defendant to the Counterclaim refused to return the official car upon his exit from the company. The Claimant/Defendant to the Counterclaim contends that in September 2016, the Defendant advertised the sale of the official Nissan Micra Car for N400,000.00 and sold it to him on October 24, 2016, after rejecting lower bids from other prospective buyers. He asserts that he paid a deposit of N100,000.00 into the GT Bank account of Mrs Bukola Bakare, the Managing Director of the Defendant, on October 25, 2016.

 

45.   The Counterclaimant failed to provide evidence supporting its stance that the money paid by the Claimant/Defendant to the Counterclaim was a repayment of a loan given to the Claimant by the Managing Director and not for the sale of the car. The Claimant/Defendant to the Counterclaim submitted exhibit C9 (a letter dated December 19, 2016, regarding outstanding salaries and the balance for the Nissan Micra), where he requested his outstanding salaries to complete the car payment. Additionally, he provided exhibit C18 (GT Bank deposit slip evidencing the N100,000.00 payment on October 25, 2016).

 

46.   Moreover, the Claimant/Defendant to the Counterclaim presented exhibit C15 (a clearance letter), in which the Office Manager certified that all company properties assigned to him for official duties had been returned. The document speak for itself. Since the Defendant issued a clearance letter stating that the Claimant/Defendant to the Counterclaim had returned all assigned property, it is estopped from claiming that the car should be returned. The Counterclaimant cannot change its position capriciously. See Section 169 of the Evidence (Amendment) Act, 2023. Therefore, this relief fails due to a lack of evidence. I so hold.

 

47.   Relief three of the counterclaim seeks Ninety-six Million Naira (N96,000,000.00) for loss of earnings and income during the Claimant/Defendant to counterclaim’s tenure as General Manager. The Counterclaimant asserts Defendant to Counterclaim was hired to increase revenue and productivity, which he gave assurance that he could achieve. However, his performance fell short, leading to significant losses, reduced patronage, and loss of clients, including Skye Bank Plc. The Claimant was repeatedly queried for inefficiency, inadequate supervision, and failure to submit reports timely. Despite these issues, he could not produce effective marketing proposals. To proof its claim, the Counterclaimant presented exhibits D4 (internal memo dated December 29, 2015), D8 (letter of termination); D10 (cessation of security services at some of Skye Bank’s business location); D11 (internal memo dated October 4, 2016, Re: Dereliction of duty); D13 (Deployment of Officers to FESTAC location) and D14 (internal memo dated December 2015). The totality of the evidence above reflects the Counterclaimant’s dissatisfaction with the Defendant to the Counterclaim’s performance. Having so proven, the burden of proof oscillates to the Defendant to the Counterclaim.

 

48.   Conversely, the Defendant to the Counterclaim asserts that contrary to the contention of the Counterclaimant, it did not hire adequate personnel such as marketers, operations drivers, operations managers, and patrol supervisors despite promises made. This resulted in the Claimant taking on additional responsibilities, traveling between Lagos, Ogun, Oyo, Osun, and Kwara States, often driving himself without adequate logistics. Consequently, he had to sleep in undesirable locations, such as on the roads or with security personnel at the University of Ibadan, due to the lack of hotel accommodation, exposing him to significant risks while on official assignments, without allowances, insurance, or pensions. He further averred that although his employment letter did not engage him as a marketer, he significantly grew the Defendant's clientele and capital base within a few months.

 

49.   Additionally, the Claimant/Defendant to the Counterclaim states that with his intervention, a total of 95 guards were employed and twenty new locations were added to the Defendant's company. He tendered exhibits C4 (handing over note dated 31st October 2015 from the outgoing GM to the Defendant Counterclaimant) and C5 (Quarterly Review and Current Status report dated 26th February 2016) which showed that the locations increased from 52 to 71; the number guards from 159 to 253 including the financials which also improved from N4,788,782.00 to N8,089,781 from October 2015 to February 2016.

 

50.   Against this backdrop the onus again shifts to the Counterclaimant to proof how the Defendant’s actions resulted to loss of earning and to lead evidence to proof the loss N96,000,000.00. In Ecobank v First choice Properties Ltd & Anor (2024) LPELR-61793(CA) the Court of Appeal held, "The claim for loss of earnings is in the realm of special damages and the law is that it must be specifically pleaded and strictly proved in evidence. For as was held in Gonzee (Nig) Ltd v Nigerian Educational Research & Development Council & Ors (2005) LPELR-1332(SC) at page 17 paras. A, per Edozie, JSC: "The requirement of the law is that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. A claim in the nature of special damages to succeed must be proved strictly; the Court is not entitled to make its own estimate on such a claim: See Dumez (Nig.) Ltd. v Ogboli (1972) 1 All WLR 241; Jaber v Basma 14 WACA 140." See also Onyiorah v Onyiorah (2019) 15 NWLR (Pt. 1695) 227’.

 

51.   Strictly speaking, in claims for loss of earnings full particulars must be given by the Claimant in his pleadings of his rate of earning and of such other facts as may be necessary to enable the Court to calculate as best and as accurately as it can, the actual amount of the plaintiff's loss. The Counterclaimant having failed to specially plead and prove his claim for loss of earning amounting to N96,000,000.00 as required by law, I agree with the Learned Counsel for Defendant to the Counterclaim that this head of claim must fail. The Counterclaimant’s relief three is accordingly dismissed. I so hold.

 

52.   The Counterclaimant is seeking the sum of One Hundred Million Naira (N100,000,000.00) for breach of contract. In Dangote Cement Plc v Ekeson Salins Oil & Gas Ltd & Ors (2019) LPELR-47259(CA), it was held that in an action for breach of contract, the plaintiff must prove not only that there was a breach but also that there was a subsisting and enforceable contract breached by the defendant. There cannot be a breach of a non-existent contract or a contract that is void or invalid ab initio. See Haido & Anor. v Usman (2003) LPELR - 5249 (CA) at 25 (D), Access Bank Plc v Ugwuh (2013) LPELR - 20735(CA) at 25-26 (D-A), and Best Nig. Ltd. v Blackwood Hodge Nig. Ltd (2011) LPELR - 776 (SC) at 42 (D-E).

 

53.   Without a subsisting, valid, and enforceable contract, a claim for damages for breach of contract must fail. In Unity Bank v Ahmed (2019) LPELR-47395(SC), it was held that where there is a breach of the contractual relationship, damages must naturally follow. A Judge may award a sum as warranted by the circumstances of the breach, even without proof of actual loss. See Allied Bank of Nigeria Ltd v Jonas Akubueze (1997) 6 SCNJ 116. The award of damages is inescapable where there is proof of breach, as further supported by NITEL Trustees Ltd & Anor v Syndicated Investment Holding Ltd (2022) LPELR(SC).

 

54.   The onus is on the Counterclaimant to provide evidence to substantiate his claims and establish that the Defendant to the Counterclaim breached fundamental terms or obligations of the contractual relationship. Fundamental breaches are those that contravene express and implied material terms of the contract, resulting in damages naturally flowing in the Counterclaimant’s favour. A fundamental breach denotes a performance totally different from what the contract contemplated and entitles the other party to damages and the right to refuse further performance of the contract. See DHL Intl Nig. Ltd v Eze-Uzoamaka (2020) 16 NWLR (Pt. 1751) 445 at 486, E-G. In NCC v Motophone Ltd & Anor (2019) LPELR-47401(SC), the Supreme Court held “in an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the breach.” See also Agu v General Oil Ltd (2015) LPELR-24613(SC). The Counterclaimant has not put forward the terms of exhibit D1 breached by the Defendant to the Counterclaim to warrant the grant of the sum of N100,000,000 which he claims. The Court is not at liberty to make speculations or embark on a voyage of discovery in the dispensation of justice. Therefore, this claim must fail and according fails. I so hold.

 

55.   The Defendant and Counterclaimant is seeking the sum of One Hundred Million Naira (N100,000,000.00) for general damages. The purpose of awarding general damages is to compensate the Claimant, as far as money can, for the damages, loss, or injury suffered. The guiding principle is restitution in integrum, which aims to restore the party to the position they would have been in if they had not suffered the wrong. This means compensating for the loss that inevitably and unavoidably flows from the breach, as established in MTN v Corporate Communication Investment Ltd (2019) LPELR-47042(SC). However, the Court finds that the Counterclaimant has failed to establish any breach or loss arising from the acts of the Defendant to the Counterclaim. Therefore, the Court cannot grant this relief, and it is hereby dismissed. I so hold.

 

56.   The Defendant/Counterclaimant, in relief six, seeks an order awarding costs for the Counterclaim. According to Olusanya v Osinleye (2013) 11 NWLR (Pt. 1367) 148 at 170, A-B, the award of costs is meant to compensate a successful party without being punitive to an unsuccessful party. Costs are intended to cushion or alleviate the financial burdens of the victorious party rather than cover all financial losses incurred during litigation, as emphasized in Egypt Air Ltd v Ibrahim & Anor (2021) LPELR-55882(CA) and Anazodo v Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC); (2023) 10 NWLR (Pt. 1891) 1, as well as EKSU & Ors v Fajembola & Ors (2022) LPELR-57501(CA). Given that all other reliefs in the Counterclaim have failed, the Court believes that awarding any costs in favour of the Defendant/Counterclaimant would be unjust. Therefore, this request for costs is refused. I so hold.

 

57.   In all, the first issue for determination is resolved in part in favour of the Claimant. Issue two is resolved in the negative against the Defendant/Counterclaimant, the Counterclaim fails in its entirety and is accordingly dismissed. The Claimant’s claims succeed in part and to the extent set out below, such that other than the orders enumerated below all other claims of the Claimant fail and are hereby dismissed. I so hold. The orders of the Court are as follows:

 

a)    IT IS DECLARED that the purported termination of the Claimant by the Defendant vide its Defendant’s letter dated 20.12.2016 is null and void and is of no effect whatsoever and consequently the Claimant, is entitled to his salaries from 01.12.2016 till 28.02.2017 when his notice period would have lapsed.

 

b)    AN ORDER of specific performance is hereby made commanding the Defendant to complete the sale of the Nissan Micra with registration number GGE 420 BW by delivering the original documents to the Claimant and effecting the necessary change of ownership. Concurrently, the Claimant is ordered to pay the Defendant the outstanding sum of N300,000.00, representing the balance of the sale price.

 

c)     An order commanding the Defendant to pay the Claimant sum of N794,050.00 being Claimant’s salary for the notice period from 01.12.2016 to 28.02.2017 and unlawful deductions from salaries and allowances.

 

d)    General damages in the sum of N300,000.00 (Three Hundred Thousand Naira) is awarded against the Defendant in favour of the Claimant.

 

58.   No orders as to cost, parties to bear their respective cost.

 

59.   Judgment is entered accordingly.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge