IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

10^TH DAY OF FEBRUARY, 2026                      SUIT NO. NICN/CA/50/2023

BETWEEN:

Engr. Solomon Olorunfemi ……………………………………………………………..……………..…. Claimant

AND

Lafarge Africa Plc ………………………………………………………………………………………..…. Defendant

JUDGMENT.

1.   On 3^rd November, 2023, the claimant took out a general form of complaint accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be tendered as exhibits at the trial. Vide paragraph 4 of the statement of facts the claimant prays for:-

a.    A DECLARATION there existed an employment relationship between the Claimant and the Defendant between 3^rd June 2013 till 4^th May 2023 where the Claimant served as Mechanical Instructor, Lecturer II and Rector/Principal Lecturer respectively at the Unicem Community Initiative (UCDI)- Training Institute.

b.   A DECLARATION that the offers of Appointment of December 15, 2014 as Lecturer II and July 16,2018 as Rector/Principal Lecturer issued by the Defendant at the Unicem Community Development Initiative (UCDI)- Training Institute are all valid employment offers, and same having accepted by the Claimant with their effective dates.

c.    A DECLARATION that the refusal of the Defendant to pay all remunerations and other benefits accrued to the Offers of Appointment of December 15, 2014 as Lecturer II and July 16, 2018 as Rector/Principal Lecturer at the Unicem Community Development Initiative (UCDI)-Training Institute as issued by the Defendant is unlawful, null and void and of no effect whatsoever.

d.   A DECLARATION that by the offers of Appointment of December 15, 2014 as Lecturer II and July 16, 2018 as Rector/Principal Lecturer by the Defendant, at the Unicem Community Development Initiative (UCDI)-Training Institute, the Claimant is entitled to all the remunerations and other benefits attached to the status of employment.

e.    AN ORDER directing the Defendants to pay the sum of N51,009,750.00 (Fifty-One Million and Nine Thousand, Seven Hundred and Fifty Naira Only) as his basic salary and N38,436,801.00 (Thirty-Eight Million, Four Hundred and Thirty- Six Thousand, Eight Hundred and Ten Thousand Naira Only) for Allowances Due to the Claimant from December 15, 2014 till May 2023.

f.     AN ORDER directing the Defendants to issue a Certificate of Service to the Claimant for Rector as appropriate to his last service to the Defendant.

g.   AN ORDER directing the Defendants to pay the Claimant the sum of N10,000,000.00 (Ten Million Naira) only as general damages for the hardship, embarrassment, pain and suffering caused to the Claimant by the Defendant.

h.   AN ORDER directing the Defendants to pay the Claimant the sum of N10,000,000.00 (Ten Million Naira) only as special damages for the hardship, embarrassment, pain and suffering caused to the Claimant by the Defendant.

i.     AN ORDER directing the Defendants to pay to the Claimant a post judgment interest of ten percent (10%) per annum on the total judgment sum due to the Claimant from the date of the judgment and until the judgment debt is paid in full.

j.     Cost of Litigation of N1,000,000.00 (One Million Naira).

2.   In reaction to the originating process commencing this suit, the Defendant on its part filed a Statement of Defence dated 20^th May 2024, but deemed properly filed and served on the 21^st of May 2024, by order of court. In the statement if defence it was averred amongst other things that the Claimant is not entitled to the reliefs being sought. Consequently, this Honourable Court was invited to dismiss the action against the Defendant as same is unfounded and devoid of merit.

3.   The claimant testified in proof of his case as CW1. CW1 adopted his witness statements on oath as his evidence in this suit. Exhibits C1 to C14, were tendered through CW1 and under cross examination four more documents were tendered in evidence they were marked as exhibits XX1, XX2, XX3A and XX3B. at the end of cross examination CW1 was discharged. However, following filing of reply to the statement of defence CW1 was recalled, at the recall-trial CW1 adopted his witness statement on oath filed along with the reply to statement of defence as his evidence respecting the reply to statement of defence. Two documents were tentatively admitted in evidence as exhibits CR1 and CR2, respectively. CW1 was cross examined on the second adopted witness statement on oath, thereafter he was discharged.

4.   The defendant called one Barong Barong Ita, a member of staff of the defendant who testified in defence of the defendant as DW1. DW1 after adopting her witness statement on oath tendered document in evidence which were admitted in evidence and marked as exhibits D1, D2 and D3. DW1 was cross examined by counsel for the claimant, thereafter, he was discharged.

5.   At the close of the defence parties were ordered to file final written address.

THE CASE OF THE CLAIMANT.

6.   The claimant was employed by UNICEM (a company which assets and liabilities are now owned and managed by the defendant. The claimant was appointed as a ‘mechanical instructor’ vide letter dated 28^th May, 2013, to serve at UNICEM Community Development Initiative Training institute. The claimant was vide letter dated 15^th December, 20014, upgraded to the role of ‘lecturer ii’. The claimant performed his duties diligently but was not paid any entitlement in compliance with the figure and terms of the offer of employment. The defendant continued to place the claimant on his remuneration as mechanical instructor. The defendant by another offer of employment dated 16^th July, 2018, upgraded the claimant to another position of ‘rector/principal lecturer’. The claimant dutifully and diligently performed the duties  attached to the designation. Though the claimant performed his duties without complaint he was not paid any salary for the said designation as per the offer of employment. The unfortunate situation persisted till May, 4, 2023, when the claimant retired from service.

7.   Upon retirement of the claimant in May, 2023, the claimant was issued with a certificate of service which wrongfully recognized the claimant’s designation as mechanical instructor and not rector/principal lecturer which was his last designation as at the time he retired from the employ of the defendant. The claimant was again not paid any of his entitlement in line with his last designation at the point of retirement without any reason whatsoever by the defendant.

THE CASE OF THE DEFENDANT.

8.   The  defendant stated that the claimant was its former employee. As part of employment of the claimant and from time to time he was assigned tasks which are incidental to and forms part of his job description with the defendant. The claimant was issued with certificate of service as part of exits protocol processes. Part of the process for claimant’s retirement he was issued with retirement notices dated 27^th April, 2022 and 20^th April, 2023, respectively. The claimant was also issued with notification of entitlement dated 5^th June, 2023. The claimant duly acknowledges on 6^th June, 2023, wherein he completely and unconditionally accepted the said sum as full and final settlement with respect to any claim, demand, right and set-off against the defendant arising out of or connected with his service or entitlement benefits. The defendant avers that this suit discloses no reasonable cause of action as the defendant pleads and shall rely on estoppel by conduct in the light of the foregoing.

9.   The defendant insisted that the claim of the claimant is speculative as the defendant has not committed any infraction against the claimant neither is it indebted to the claimant in any form.

REPLY TO STATEMENT OF DEFENCE:

10.                In answer to the statement of defence, the claimant stated that all job description and task presented to the claimant by the defendant were specifically identified and enlisted in the various offer letters issued to claimant, alongside distinct and specific position and remunerations. The job description/tasks linked to the position of lecturer ii and rector/principal lecturer was at no point same as the tasks linked to the job description of mechanical instructor. The position of mechanical instructor is distinct and different from lecturer ii, as well as rector/principal lecturer. Each of these designations have different and distinct remuneration and employment terms.

11.                The claimant as at the May, 2015, visit by the national Board for Technical Education he had started performing his role as lecturer ii. Again, sometime on 22^nd and 25^th January, 2020, when National board for technical education visited the defendant facility for further accreditation the claimant had been performing the function of the office of rector as per offer of 16^th July, 2018. The tasks of lecturer ii and that of rector/principal lecturer was at no point same as the tasks linked to the job description of mechanical instructor. The document signed by the claimant on 6^th June, 2023, was only in respect of  the full and final entitlement in the notification of entitlement for position of mechanical instructor.

THE SUBMISSION OF THE DEFENDANT:

12.                Ekene Maduwagwu, Esq; counsel for the defendant adopted the final written address of the defendant as his argument. In the final written address twin issues were formulated for determination. They are:-

1.   Whether the claimant having failed to establish its case on the balance of probability or on preponderance of evidence is entitled to the reliefs being sought in this suit.

2.   Whether by virtue of exhibit XX3 A & B, the claimant is not estopped from raising any claim against the defendant on his entitlement.

ARGUMENT:

13.                Issue 1: Whether the claimant having failed to establish its case on the balance of probability or on preponderance of evidence is entitled to the reliefs being sought in this suit.

14.                In arguing issue one counsel submitted that the law is trite that the burden of proof in a civil suit is on the party against whom the judgment of the court would be given if no evidence were produced on either side. In support of this submission counsel relied on section 133 of the Evidence Act and the case of Ekweozor & Ors v. Registered Trustees of the Saviours Apostolic Church of Nigeria (2020) LPELR-49568 (SC). Counsel also relied on the case of Newbreed Organization Ltd V. Erhomosele (2006) LPELR-1984(SC), where Supreme court stated thus:

"In all civil suits, the onus to prove a particular fact or a case in general is on the party who asserts, and since civil suits are determined on balance of probability and preponderance of evidence, a party who proves his case will obtain judgment based on such preponderance of evidence and balance of probability in his favour. See Elebute v. Odekilekun (1969) 1 All NLR 449, Elias v. Omo-Bare (1982) 5 SC 25, and Arase v. Arase (1981) 5 SC 33." Per ALOMA MARIAM MUKHTAR, JSC (Pp 25 - 26 Paras F - A).

15.                Counsel submitted that the legal burden of proof constantly remains with the Claimant and never shift while the Evidential burden of proof shifts when he who asserts discharges the burden of proof. It was submitted that the Claimant in this case has the legal burden to prove his case and from the totality of evidence adduced in this case, the Claimant has failed to proof same.

16.                Counsel also refers to the case of Adamu v Nigerian Airforce (2022) 5 NWLR (Pt 1822) 159 (SC) at 182, where the Supreme Court held that:

“A defendant need not prove anything if the Claimant has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. Where the Claimant fails to prove his case as required by the law, it shall be dismissed.” See also, Umera v NRC (2022) 10 NWLR (Pt 1838) 349 (SC) 387, paras G – H.

17.                According to counsel firstly, the Claimant who admitted to have signed exhibit XX3 A & B failed to tender this vital document but kept silent about it. CW1 admitted under cross examination to executing same and no complain was made on fraud, duress or misrepresentation in the pleadings of the Claimant over the referenced exhibits.  Counsel submitted that evidence which ought to be produced, would if not produced, be against the party who should have produced it. See Section 167 (d) of the Evidence Act and the authority of Odunlami v Nigerian Army (2013) 12 NWLR (Pt. 1367) 20. Counsel invited this Court to so hold that the failure of the Claimant to tender the said document was simply because it is against the interest he seeks to establish in this suit.

18.                Counsel argued that on the 27^th of April 2022, the Claimant who was going to attain the retirement age of 60 years in the succeeding year, received his retirement notice exhibit D2, in preparation for his retirement which he acknowledged. On the 5^th of June 2023, having attained the mandatory retirement age of 60 years, the Claimant was issued with exhibit D1 which is his Notification of entitlement. Exhibit D1 had a detailed rundown of his benefit and the Claimant never raised any issues or complaint and it was upon that satisfaction that he was issued with exhibit D3 which is the Retirement letter dated 20^th April 2023. Counsel contended that the Claimant has been unable to establish any infraction by the defendant with respect to the period between 2013 to 2023 which is also within this period, he now allegedly seeks to sustain his claim. Under cross examination, CW1 admitted working for the Defendant from 2013 to 2023 to which his exit was rightly calculated and computed in exhibit XX3 A & B which he accepted as correct. This Honourable Court is invited to take notice that the claim for any further salaries by the Claimant for the period under reference under any guise cannot stand.

19.                Counsel also submitted that special damages as in the instant case must be strictly proved as a Court of law can only award same based on the facts pleaded and evidence placed before it. The Supreme Court per ADEKEYE JSC gave judicial imprimatur to this conclusion in A.S.E.S.A v. Ekenem (2009) All FWLR (PT.491) page 838,864 paras A-B where the learned justice had no hesitation in confirming this position in the following words:

“I have to confirm that an award of damages, either special or general, is not awarded as a matter of course but on sound and solid principles and not on speculations or sentiment. Neither is it awarded at large or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury"

20.                Counsel submitted that the settled principle of law that he who asserts must prove. See Mbubu v. Obori & anor. (2003) FWLR (Pt.156) 844. The duty is on the Claimant to establish his case and he failed in the discharge of that duty thereof. All the reliefs sought in this case are not against the Defendant but Unicem Community Development Initiative (UCDI) Training Institute (a degree awarding tertiary institution licensed by the Federal Government and having its Governing Board) where the Claimant alleged, he acted as Rector/Lecturer II between 2014 to 2023, having also admitted under cross examination that within the same period, he was still a staff of the defendant where he was working. One wonders how possible it is for one person to keep two jobs within the same time frame and work hours.

21.                It was submitted that the Claimant tried effortlessly to surreptitiously mislead this Honourable Court by attempting to lump the Defendant together with a higher institution Unicem Community Development Initiative (UCDI) Training Institute (a degree awarding tertiary institution licensed by the Federal Government and having its Governing Board). Like the name implies, the Claimant is aware that the institution is a community service initiative which the Defendant has had course to support to the governing board and assist them amongst other acts of corporate social responsibilities (CSR) as can be gleaned from exhibits C9 and C10 as well as provide support to the institution to meet up with her accreditation with the Federal Government as seen in exhibits C4, C5, C6, C7 and C12.

22.                Counsel further argued that the Claimant had erroneously argued like he had couched his process that correspondence between the Federal Government agency and the Governing Board of the Institute were addressed to the Defendant and under cross-examination, the veracity of his statement on oath was put to test when asked if the name of the Defendant was written anywhere in these correspondence exhibit CR1 and exhibit CR2. In response, CW1 admitted and correctly so that the name of the Defendant was not written on the documents. These are a part of a retinue of documents the claimant places reliance on amongst others to claim he was acting as Rector/Lecturer for the Defendant when in actual fact and upon his admission, the name of the Defendant was nowhere to be seen on exhibit CR1 and exhibit CR2. This gives credence to the argument being advanced in our address that no cause of action has been disclosed against the Defendant herein.

23.                According to counsel the Claimant made so much ruse about his alleged position as lecturer and Rector at the Unicem Community Development Initiative (UCDI) Training Institute but did not sue the school to claim for his alleged salary (if any). Having claimed to have worked at the school, it is only the school that can confirm his assertions or otherwise.

24.                By virtue of exhibit C4 and C12, the Claimant interfaced with the Joint admission & matriculation Board on behalf of Unicem Community Development Initiative (UCDI) Training Institute. Any cause of action (if any) with respect to alleged services rendered as Rector of the institution or lecturer thereof ought to be brought against the Governing Council or trustees of the institution. Under cross examination, DW 1 gave clarity and put proper perspective to the distinction between the Defendant and Unicem Community Development Initiative (UCDI) Training Institute. The claimant has not even shown in law that the institute is a subsidiary of the defendant as even a subsidiary is a distinct legal personality in law with its own soul.

25.                It was submitted that a party must succeed or fail on the strength of his case and the evidence which he brought to court. On this contention counsel relied on the cases of ALIBE V. YARO (2001) LPELR-CA/J/100/95; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Cobblah v. Gbeke (1947) 12 WACA 294 at 295." Per NZEAKO, J.C.A. (P. 25, paras. A-B). The Supreme Court in Chief Adeoye Adio Fagunwa & Anor. V. Chief Nathaniel Adibi & Ors. (2004) LPELR-1229(SC) posited most succinctly as follows “where a Claimant fails to prove his relief or reliefs, the action stands dismissed”.

26.                Counsel urged this court to in the light of the foregoing argument, to respectfully so hold. The Claimant having failed to adduce viable evidence in support of his averment and relief is bound to have his suit dismissed. This Honorable Court is accordingly invited, most respectfully to so dismiss this suit in the light of the above submission.

SUBMISSION ON REASONABLE CAUSE OF ACTION

27.                Counsel submitted that this goes to the root as no cause of action has been established against the Defendant. It is only when facts establishing a civil right or obligation and facts establishing infraction on that right and obligation exist side by side, a cause of action is said to accrue. This is the position of the Supreme Court in Osigwe v. PSPLS Mgt. Consult. Ltd (2009) Vol 16 WRN 1 at 21 lines 5-10 where it was held thus:

“It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. It is only when facts establishing infraction or trespass on that right and obligation exist side by side, a cause of action is said to accrue.”

28.                Counsel submitted that a reasonable cause of action has been defined in several authorities. In S.P.D.C.v. X.M.Federal Ltd (2006) All FWLR (pt. 339) 822, 830, the Supreme Court held that ‘a reasonable cause of action is a cause of action with a chance of success when only the allegations in the pleadings are considered’.

29.                In A.-G Federation v. Abubakar (2007) 10 NWLR (Pt.1041) 1 SC at 75 paras. E-G, the Supreme Court held that such facts or combination of facts, which gives rise to a right to sue may consist of two elements Viz:-

a.    the wrongful act of the defendant, which gives the Claimant his cause of action; and

b.   the consequential damages. See also Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261 SC.

30.                Counsel submitted that in the above-mentioned case, the Supreme Court was very explicit on what gives rise to a cause of action. It is very fundamental that the Claimant must show the wrongful act of the Defendant or that the Defendant had breached the terms provided by statute and in addition, the Claimant must also show that he has suffered a consequential damage due to the defendant’s breach.

31.                Counsel submitted that in deciding the cause of action or whether a court has power or authority to determine an action, reference would have to be made to the Claimant’s Statement of facts or Particulars of Claim as in this case. In support of this contention counsel relied on the cases of Anka v. Lokoja (2001) 4 NWLR (Pt. 702) 178 at 182; Odeleye v. Adepegba (2001) 5 NWLR (Pt. 706) 330 at 335; Morecab Fin. (Nigeria) Limited v. Okoli (2001) 12 NWLR (Pt. 727) 400 at 404.

32.                Counsel submitted that cause of action in any given case has to be determined from its very peculiar circumstances, a cause of action can be said to have arisen and it varies from one case to another and it is always a function of the facts of the case which gives rise to a right of action thus entitling a person to a judicial review. Counsel argued that there is clearly no cause of action palpable from the Writ of Summons or Statement of Claim between the Claimant herein and the Defendant under reference.

33.                For ease of reference, the Claimant asserts to have been a Lecturer and Rector at UNICEM COMMUNITY DEVELOPMENT INITIATIVE TRAINING INSTITUTE (UCDI- TI) and by virtue of Exhibits C4 & C12 which is the claimant’s frontloaded documents, it was not the Defendant that was accredited as a tertiary institution as both entities have distinct separate legal entity in law as well as the power to sue and be sued. See Salomon v Salomon & Co Limited (1896) UKHL 1, (1897) AC 22. The Claimant is only speculating against the Defendant as its statement of facts does not disclose any wrongful act done by the Defendant as admitted by the claimant himself where he stated that all his salaries and allowances were paid to him by the Defendant. Conversely, the Defendant has been dragged into a matter which it is not privy to. To support this contention counsel relied on the case of Nwankwo v Ononeze-Madu (2009) 1 NWLR (Pt. 1123) 671@702-703 paras E-B.

34.                Counsel submitted that it is only when facts establishing a civil right or obligation and facts establishing infraction on that right and obligation exist side by side, a cause of action is said to accrue. This is the position of the Supreme Court in Osigwe v. PSPLS Mgt. Consult. Ltd (2009) Vol 16 WRN 1 at 21 lines 5-10 where it was held thus:

“It is settled law that there must be a cause of action  before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. It is only when facts establishing infraction or trespass on that right and obligation exist side by side, a cause of action is said to accrue.”

35.                Counsel insisted that the Claimant has not been able to establish any wrongful act/breach by the Defendant. Counsel submitted that the question of reasonable cause of action goes to the jurisdiction of the court to entertain a matter. In support of this contention reliance was placed on the case of Bessoy Ltd v. Honey Legion (Nig) Limited (2010) 4 NWLR (pt. 1184) 301, 314 paras. E-H, where the Court of Appeal held thus:

“It is trite law that a defendant is entitled to raise issues pertaining to jurisdiction whether it is a cause of action jurisdiction or adjudicatory jurisdiction at any stage of the proceedings whether before or after the exchange of pleadings”

36.                Counsel submitted from the foregoing; no reasonable cause of action has been made out against the Defendant. Consequently, we pray this Honourable Court to accordingly dismiss this suit.

37.                Issue 2: Whether by virtue of exhibits XX3A & XX3B, the claimant is not estopped from raising any claim against the defendant on his entitlement.

38.                Counsel in arguing issue 2, submitted that a party will be estopped from reneging after his conduct has occasioned another person to believe the existence or otherwise of a thing. Section 169 of the Evidence Act, 2011 codifies the doctrine of estoppel by conduct and states as follows;

“When one person has either by virtue of an existing court judgment, deed or agreement or by his declaration, act or omission, caused another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest,    to deny the truth of that thing.”

39.                Counsel also refers to the case of Ude v. Osuji (1998) 13 NWLR (Pt. 580) 1, the Supreme Court held as follows:

“Where a person by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, neither he nor his representative shall be heard to deny the existence of that state of things”

40.                Counsel submitted that the Claimant in Exhibit XX3B accepted payment thereon as full and final settlement of any indebtedness owed it by the Defendant with regard to his employment thereby absorbing the Defendant of any liability. For ease of reference, the said paragraph is hereunder reproduced as follows;

“ upon receipt of the final entitlement, I hereby accept this as full and final settlement and hereby release and discharge any actions, claims, rights, demands and set- offs whether or not presently known to me and whether in law or equity that i or any of my heirs, assigns or administrators may have or hereafter can, shall or may have against the company or any of its affiliates arising out of or connected with my service or entitlement benefits”

41.                Counsel contended that the Claimant is clearly estopped from resiling from his prior representation and conduct leading to his execution of exhibits 3XXA & XX3B thereof. This Honourable Court is accordingly invited. The Latin maxim “pacta sunt servanda” which means “Agreements must be kept” is one of the oldest/fundamental principle of law to the effect that Agreement would be binding and enforceable. The effect of this is that when parties who have contractual capacities enter into a contract or execute any Agreement, the contracts/agreements are binding upon such parties. This principle of law has been affirmed in a plethora of cases by the Nigerian Courts. Like in the case of Attorney General of Rivers State v. Attorney General of Akwa Ibom State & Anor. (2011) LPELR-633(SC), the Supreme Court held:

“It is elementary law that where parties have entered into a contract or agreement, they are bound by the provision of the contract or agreement. This is because, a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favorable to him. This is the whole essence of the doctrine of sanctity of contract or agreement”

42.                In the same case of Attorney General Rivers State v Attorney General AKWA-IBOM State (2011) 3 SC 1, the Supreme Court of Nigeria per Bode Rhodes Vivour (JSC) stated as follows;

“Once parties enter into an agreement voluntarily and there is nothing to show that the agreement was obtained by fraud, deception or misrepresentation, the parties are to be bound by the terms freely entered into. Consequently, a party no longer satisfied with the terms of the agreement cannot resile or jettison the agreement.”

43.                Similarly, in Sonnar (Nigeria) Ltd & Anor v. Partenreedri M.S. Nordwind Owners of the Ship M.V. Nordwind& Anor(1987) LPELR-3494(SC), the Supreme Court restated the principle when it held:

“Pacta sunt servanda simply means that contracts are to be kept… Agreements which are neither contrary to the law, nor fraudulently entered should be adhered to in every manner and in every detail. There is no doubt that parties to a contract are allowed, within the law to regulate their rights and liabilities themselves”

44.                In OMEAKU & SONS LTD v. RAINBOWNET LTD & ORS (2013) LPELR 22055(CA) (PP. 10-11 PARAS. C).

"It is usual that in human relations and particularly in business transactions, parties enter into agreements to guide and regulate such relationships. In such a document, their rights and obligations are spelt out. It is trite that parties who have voluntarily entered into an agreement are bound by the clear provisions of the agreement they freely enter into.”

45.                See also BRIGADIER G. T. KURUBO & ANOR v. ZACH ENGINEERING NIG. LTD. (1992) 5 NWLR (Pt.239) 102

46.                The Claimant having accepted exhibits XX3A & XX3B as full and final settlement and released and discharged the Defendant of any claims, rights or demand with respect to his entitlement cannot initiate this suit against the Defendant as he will be estopped by his conduct thereof from bringing same.

47.                In concluding his submission counsel urged the court to in the light of the authorities cited above, the various issues tied to settled principles of law highlighted and the evidence before this Honorable Court, the Claimant cannot be entitled to the reliefs sought/or any damages whatsoever. And urged the court to dismiss this suit with substantial cost accordingly.

THE SUBMISSION OF THE CLAIMANT:

48.                Mr. I. G. Akiki, of counsel for the claimant adopted the final written address of the claimant as his argument in this case. in the final written address three issues were formulated for determination. They are:-

1.   Whether there existed any employment relationship between the Claimant and the Defendant between 3^rd June 2013 till 4^th May 2023 where the Claimant served as Mechanical Instructor, Lecturer II, and Rector/Principal Lecturer.

2.   Whether the Claimant is not entitled to his entitlement to receive salaries for the designation of Lecturer II, and Rector/Principal Lecturer from the Defendant between 2014 -2023.

3.   Whether upon the careful perusal of all the evidence led, the Claimant has proved his case to be entitled to the reliefs sought.

ARGUMENT:

49.                Issue 1;  Whether there existed any employment relationship between the Claimant and the Defendant between 3^rd June 2013 till 4^th May 2023 where the Claimant served as Mechanical Instructor, Lecturer II, and Rector/Principal Lecturer.

50.                In arguing issue 1; counsel submitted that, from the facts, documents, and evidence adduced, an employer–employee relationship clearly existed between the parties between 2013-2023, as Mechanical Instructor, Lecturer II and Rector/Principal Lecturer respectively considering all the exhibits before the honourable court.

51.                Counsel submitted that in Nigerian labour law, the claimant bears the burden of proving the existence of an employer–employee relationship. On this counsel relied on the case of SHENA SECURITY CO. LTD V. AFROPAK (NIG.) LTD (2008) 18 NWLR (PT. 1118) 77). In proving same, counsel called on this court to consider the documents of employment to wit: the Letter of Employment, Staff Handbook and other employment documents.  It was further argued that documentary evidence such as the Claimant’s letter of employment, salary bank statements, staff ID card, and statutory deductions tendered before this Court are strong and credible proof of an employment relationship. Documentary evidence remains the best proof of such contractual relationships. Counsel also relied on the case of ISHENO V. JULIUS BERGER (NIG.) PLC (2008) 6 NWLR (PT. 1084) 582.

52.                Counsel also called on this court to consider exhibits C1, C2 and C 3 dated Tuesday 28^th May 2013, December 15^th 2014 and July 16, 2018 as the main employment documents before this honourable court in this case.  The Claimant in its statement of fact in paragraph 3, 4, 5, 6, 7, 8,9,10,11,13, and 14 have clearly led evidence to show that he was employed by the Defendant, and the various designations for each of them. This averment is also supported by the Defendant’s DW 1 under cross examination on 10/12/2024 confirmed that the Defendant issued Letters of Appointments for every designation and Exhibit C1, C2 & C3 were issued by the Defendant to the Claimant. This fact remains unchallenged and uncontroverted by the Defendant. The CW1 in further support to exhibit C2 and C3, stated under cross examination that he worked with the Defendant as between 3^rd June 2013 till 4^th May 2023 where the claimant served as Mechanical Instructor, Lecturer II, and Rector/Principal Lecturer respectively, which the defendant has not challenged by any strand of evidence.

53.                According to counsel the defendant had made a failed attempt to mislead the court to believe that it did not make exhibits C2 and C3, and that the Claimant never worked with her company but rather with Unicem Community Development Initiative (UCDI-TRAINING INSTITUTE) who is a registered concern according to them, yet the Claimant has not challenged this suit for misjoinder of parties. To aid this honourable court resolve this failed attempt, this honourable court is called upon to consider paragraph(s) 2- 14 of the statement of facts. The Honorable court is also called to consider exhibit C1 alongside exhibit C2 and C3. A careful consideration of exhibits C1, C2 and C3 reveals the following:

a.    The Letters in Exhibit C1 and C2 were issued by UNICEM which later became the Defendant in exhibit C3, which Defendant has not denied this fact.

b.   All exhibits C1, C2 and C3 were all accepted by the Claimant

c.    The Defendant has not denied knowledge of the facts contained in the said Letters or the Authors of those Letters

d.   Exhibits C1, C2 and C3 were to be carried out by the directive of the Defendant at UNICEM-UCDI Training Centre, Mfamosing Plant-Cross River State which has not been denied by the Defendant.

e.    Exhibits C1, C2 and C3 contained separate positions, summary job function and remuneration separate and distinct each other, all offered and accepted by the Claimant, and also executed.

f.     The said Exhibits C1, C2 and C3 are the only Letters of Offer between the Claimant and the Defendant and no other Letters of Offer existed between the parties.

g.   The Claimant served the Defendant at the Institute.

54.                These facts remained unchallenged and uncontroverted by the Defendant; counsel urged  the honourable court to so hold. In support of this contention  counsel relied on the cases of  OSHUAFUMI & ANOR V. ADEPOJU & ANOR (2014) LRPLER-23073 (CA), LAGOS STATE WATER CORPORATION V. SAKAMORI CONSTRUCTION (NIG) LTD (2011) 12 NWLR (PT. 1262) 569.

55.                It was also submitted that the Defendant has not led any credible evidence to contradict the existence of the labour relationships in exhibits C1, C2 and C3. Counsel urged this honorable court to so hold. The Defendant’s witness has supported this evidence when answering questions during cross examination stated thus:

“…Yes, the Claimant worked with the company between 2013 and 2023. The name of the Company was UNICEM when he joined the company. Yes I can see and confirm the name of the Claimant in exhibits C1, C2 and C3. Whenever the Company employs, it will state the designations and the duties for such employee. The Claimant performed the duties in exhibit C5, C6, C7 and C8.

56.                According to counsel the above evidence of the DW1 under cross examination further strengthens the case of the Claimant that within the period of 2013 -2023, he was in the employ of the Defendant as per exhibit C1, C2 and C3. Counsel further argued that facts admitted need no further proof. To support this contention counsel relied on section 19 of the Evidence Act, 2011, the cases of BUHARI V. INEC (2008) LPELR – 814 SC, AKANINWO V. NSIRIM (2008) 9 NWLR (PT. 1093) 439.

57.                Furthermore, exhibit D2 and D3 also supports the relationship between the parties as the termination papers of the Claimant. Counsel argued that the Claimant has satisfactorily established an employer–employee relationship with the defendant as per exhibits C1, C2 and C3 which evidences control, integration, economic dependence, mutual obligations, and documentary evidence to show that the Claimant was in the employ of the Defendant as shown in exhibit C1, C2 and C3.

58.                Counsel urged the court to resolve issue 1; in favour of the Claimant in holding that the Claimant had an employer–employee relationship with the Defendant as per Exhibit C1, C2 and C3.

59.                Issue 2; Whether the Claimant is not entitled to his entitlement to receive salaries for the designation of Lecturer II, and Rector/Principal Lecturer from the Defendant between 2014 -2023.

60.                In answer to issue 2, counsel answer in the affirmative and further argues that the Claimant is entitled to all his entitlements as contained in exhibits C1, C2 and C3. As employment contract creates a relationship with duties, obligations, rights and benefits amongst parties.  The wages, salary or entitlement as the name implies is an obligation of an employer to his employee especially when same is subject to an express term of the contract. This principle is a fundamental principle in both international labour standards and Nigerian Labour Law. An employee whose employment has not been terminated is entitled to his salary and emolument to buttress the point being made counsel relied on the case of N.B.C PLC V. EDWARD (2015) 2 NWLR (PT. 1443) 201.

61.                Counsel submitted that from the evidence before the honourable court, exhibits C1, C2 and C3 had separate and different remunerations contained therein. The summary of the Claimant’s case is that he was not paid any of his entitlements as per his roles in exhibits C2 and C3. Even the documents of retirement exhibits D1, D2 and D3 carefully did not mention those roles and designations in exhibits C2 and C3. This evidence conclusively shows the evasiveness of the Defendant to liability of payments of remuneration from September 15, 2014-May 2023 when the Claimant worked as Lecturer II and Rector/Principal Lecturer respectively. Parties are bound by the terms of their contracts. OBANYE V. U.B.N PLC (2018) 17 NWLR (PT. 1648) 375, MAKWE V. NKUKOR (2001) 14 NWLR (PT. 733) 356. Counsel further argued that a contract variation occurs when both parties mutually agree to alter their contractual obligations. This includes a mutual abandonment of existing rights, which can support the variation as sufficient consideration, as in this case by the issuance of exhibits C2 and C3. In support of this contention counsel relied on the cases of EKWUNIFE V. WAYNE [W.A.] LTD [1989] 5 NWLR [PT 122] 422 AT 440 and PROSPECT TEXTILES MILLS V. IMPERIAL CHEMICAL INDUSTRIES PLC ENGLAND [1996] 6 NWLR [PT 457] 668.

62.                Counsel also called on this court to consider exhibit D1 carefully. From the schedule of payment attached to exhibit D1, the designation considered and contemplated in the said document is “MECHANICAL INSTRUCTOR”. This Designation had long been lost by the issuance of exhibit C2 and later exhibit C3 respectively. Therefore, it is conclusive to submit that there is no proof or record of payment of any entitlement accrued to him as per exhibit C2 and exhibit C3., and we urge the honourable court to so hold. It is the law that the court has a duty to consider evidence led and the documents tendered and accepted by the court and the oral evidence in with pleaded facts to establish whether there was a contract between parties to entitle them to their claims. In BETA GLASS PLC V. EPACO HOLDINGS LTD (2011) 4 NWLR (PT. 1237) 223, it was held that a party who is seeking to enforce his rights under a contract must show that he has performed all the terms which ought to have been performed by him.

63.                Counsel submitted that in the instant case, there is evidence before this honourable court that upon being employed by the Defendant in exhibit C1, C2 and C3 respectively. Exhibits C4, C5, C6, C7, C8, C9, C10, C11, C12, CR1 & CR1 all supporting the case of the Claimant that he performed the roles and responsibility in the said exhibits C1, C2 and C3. The Defendant has not challenged this evidence by any evidence or exhibits before this honourable neither by documents before it. To further support the Claimant’s case, DW1 under cross examination confirmed that exhibits C4, C5, C6, C7 and C8 that those were the duties the Claimant performed. Although DW 1 tried to feign ignorance of exhibits C9-C13, such disposition must be he interpreted in favour of the Claimant, as the Defendant witness is being evasive with the truth. Exhibits C4-C14 are cogent and convincing evidence that the Claimant performed the roles therein in line with exhibits C1, C2 and C3 respectively. Counsel urged the court so hold.

64.                Counsel submitted that this court is enjoined to accept unchallenged and uncontroverted evidence. The evidence that the Claimant was not paid his entitlement is unchallenged and uncontroverted.  This clearly shows that the Claimant indeed has a reasonable cause of action against the Defendant as contained in the statement of claim of the Claimant.

65.                Counsel submitted that it is settled law that a cause of action is determined by reference to the averments in the Claimant’s statement of claim and writ of summons. In this case the Complaint and Statement of facts as the case may be. On this submission reliance was placed on the cases of SEVEN UP BOTTLING COMPANY V. ABIOLA & SONS (2001)13 NWLR (PT. 730) 469@495 paras. C-E, SANI V. PRESIDENT, F.R.N (2010) 9 NWLR (PT. 1198) 153; EZEANI V. NIGERIAN RAILWAY CORPORATION (2015) 3 NWLR (PT. 1445) P. 130 & 160; CHIEF AFOLAYAN V. OBA OGUNRIDE & 3 ORS (1990) 1 NWLR (PT. 127)369 @ 371; EMIATOR V. NIGERIAN ARMY (1999) 12 (PT. 631) 362.

66.                Counsel stated that a cause of action means a cause of Complaint, a cause of Law, a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. The Claimant in the instant case was issued three separate employment letters, and the employer had failed to pay entitlements in two of them. The “Letter of Full and Final Payment” in exhibit XX3B only covered the designation of the Claimant as “Mechanical Instructor”, the Claimant’s action here discloses reasonable cause of action against the Defendant. Counsel urged the court to so hold.

67.                Counsel submitted that the Defendant in their pleadings had alleged that the Claimant were duly issued with exhibits D1, D2, D3, XX1, XX2 & XX3 A & B prior to his exit from the Defendant’s employment and as such is estopped from raising any claim against the Defendant on his entitlement. In arguing estoppel, the Defendant’s has cited section 169 of the Evidence Act, 2011 and several legal authorities including but not limited to UDE V. OSUJI (1998) 13 NWLR (PT. 580)1, A.G RIVER STATE V. AG AKWA IBOM STATE & ANOR ( 2011) LPELR-633 SC. In response the Claimant answer the issue raised by the Defendant on estoppel in the negative. The claimant relies on the legal authority of A.G RIVER STATE V. AG AKWA IBOM STATE & ANOR ( 2011) LPELR-633 SC, cited by the Defendant in arguing that once a party enters into an agreement voluntarily, and there is nothing to show that the earlier agreement was obtained by fraud, deception or misrepresentation, the parties are bound by their terms freely entered into.  The Defendant cannot at this stage deny the existence of exhibit C2 and C3 and its liabilities by making exhibit XX3 A & B. It would at best amount to blowing hot and cold at the same time.

68.                Counsel further argues that the claims for unpaid entitlement brought before this honourable court remains unpaid and that exhibit XX 3 A & B did not truly cover all the entitlements due to the Defendant. This honourable court cannot look at exhibit XX3 A & B in isolation of other documents especially exhibits C2 and C3. The Honorable Court is called upon to look into exhibits C1, C2, C3, as well as D1, D2 & D3. There is nothing in these three exhibits that suggest that the entitlements resolved herein included the Claimant’s entitlements in exhibit C2 and C3 which are separate and distinct from C1. To show the untidiness of the Defendant’s in denying these liabilities, Exhibit XX3A expressly mentioned the designation therein as “MECHANICAL INSTRUCTOR”. The question therefore is what happened to the entitlements contained in exhibit C2 and C3, that is yet to be answered by the Defendant, and was the Claimant not entitled to a proper designation in his certificate of service exhibit C11 even after performance. This answer has remained unanswered by the Defendant.

69.                Counsel also submitted that in the entire proceedings, there’s no document by the Defendant showing that the entitlements of the Claimant in exhibit C2 and C3 were ever paid through the period of employ of the Claimant. This court is called upon to take note of this missing link in the Defendant’s case and resolve it in favour of the Claimant. Once there is a right in law, there is a remedy.

70.                On the issue of estoppel raised by the Defendant arguing that the principle of “Pacta Sunt Servanda” meaning “Agreement must be kept” forbids the Claimant from bringing this claims. The same Defendant failed to also cite this same principle earlier in giving legal life to exhibit C2 and C3 which are binding documents in relations to the employment bond between the parties vis a vis the liabilities accompanying it.

71.                In further response to the issue of Estoppel raised by the Defendant, the Claimant argues in resolving this issue, that the central issue before this Honourable Court is whether the Defendant, having issued the Claimant more than one letter of employment containing different terms and entitlements, and having subsequently failed to honour those entitlements, can validly rely on exhibit XX3B a purported “full and final payment” document to extinguish the Claimant’s rights.

72.                It was submitted that it is trite law that a party who, by words, conduct or representation, leads another to believe in a certain state of affairs and thereby causes the other to act upon that belief, is estopped in equity from resiling from such representation. In AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248, THE SUPREME COURT PER ESO, JSC, held that where a party has, by his conduct or declaration, caused another to act in a particular manner, he will not be allowed in equity to deny the truth of such representation. Similarly, in JOE IGA & ORS V. EZEKIEL AMAKIRI & ORS (1976) 11 SC 1, the Court held that where a person stands by and knowingly allows another to deal with his property or rights on the footing of a certain belief, he is estopped from asserting anything to the contrary. This principle of law is known as Equitable Estoppel and protected by our courts and laws in Nigeria. The Supreme Court in AG NASSARAWA V. AG PLATEAU (2012) 10 NWLR (PT. 1309) P. 419 in resolving the issue of Equitable Estoppel stated thus:

“…Equitable Estoppel is a doctrine preventing one party from taking unfair advantage of another when through false language, or conduct, the person to be stopped has induced another person to act in a certain way, with the result that the other person has been injured in some way.

73.                Section 151 of the Evidence Act, 2011 clearly incorporates the doctrine of equitable estoppel. A man is not allowed to blow hot and cold at the same time.

74.                The Court of Appeal in SPRING BANK PLC v. BABATUNDE (2012) 5 NWLR (Pt. 1292) 83, applied the principle within the employment context, holding that an employer who by its conduct created the impression of continued employment and benefits, was estopped from denying such representations. Counsel argued that the Defendant in this case issued the Claimant more than one employment letter exhibit C1, C2 and C3, each containing different entitlements and benefits, including but not limited to allowances, gratuity, and other employment rights. The Claimant, relying on the Defendant’s representations in those letters, rendered faithful service and structured his expectations and future plans on the legitimate belief that those entitlements would be honoured.

75.                Counsel submitted that equity frowns at such unconscionable conduct. The Defendant cannot be allowed to approbate and reprobate, to lure the Claimant with binding promises of benefits in one breath by exhibits C1, C2 and C3, with exhibits C4-C14 showing that work had been by the Claimant in line with the terms of his employment which the Defendant has admitted, and in another breath, deny him those benefits of service carried out in exhibits C4-C14 by a unilateral document of exhibit XX3B.

76.                Counsel submitted that in our Labour Law, this principle has found statutory reinforcement in Section 254C(1)(f) of the 1999 Constitution (as amended) and the National Industrial Court Act, which empower this Honourable Court to apply equitable principles to ensure fairness in employment relationships, and to prohibit unfair treatments. According to counsel the so-called exhibit XX3B is of no moment in law, as it does not extinguish liabilities or entitlements which had accrued under the earlier employment letters in exhibits C2 and C3.

77.                Counsel insisted that the Claimant in the instant case was issued three separate employment letters, and the employer failed to pay entitlements in two of them. The “Letter of Full and Final Payment” in Exhibit XX3B only covered the designation of the Claimant as “Mechanical Instructor”, the Claimant can still legally rely on it to show that he was acknowledged as an employee and entitled to payments, and then argue that the other contracts remain unsettled as is the case here, as it did not cover the entire legal rights of the Claimant. For a second thought, how can the Defendant who issued exhibit C1 to the Claimant with specific role assigned at the Unicem Community Development Initiative Training Centre, now turn to deny exhibits C2 and C3 with the same roles? At best exhibit XX3B is even relied upon more by the Claimant not as proof that he has been fully settled, but as an admission by the employer that the employment relationship existed and entitlements were due in line with exhibits C1, C2 and C3 and those entitlements remained outstanding prior to the commencement of this suit. Counsel submitted that this court has a duty to look beyond the wording of the letters and examine whether the Claimant has truly been paid what is due under all the contracts before it which is the purpose of the establishment of this honourable court under Section 254 (C)(i)(f) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).

78.                According to counsel no discharge voucher or final clearance document such as exhibit XX3B can override the Court’s duty to ensure that employees receive their full entitlements. In NATIONAL BANK OF NIGERIA LTD V. ALAKIJA (1978) 9–10 SC 59, the Supreme Court emphasized that a party cannot be allowed to approbate and reprobate. The National Industrial Court being a court of equity and justice should not be misled to disregard the true position of the Claimant’s entitlements.

79.                According to counsel in the instant case, the Claimant has shown by documentary evidence that he had three separate employment letters, each with its own terms contained in exhibits C1, C3 and C3. Exhibit XX3B relied upon by the Defendant could at best relate to one of the contracts. It cannot, in law or equity, extinguish the obligations arising from the other two contracts under which the Claimant’s entitlements remain unpaid. To hold otherwise would amount to permitting the Defendant to unjustly enrich itself by reaping the fruits of the Claimant’s labour without paying for them. This Honourable Court, being a court of both law and equity, is urged to reject such inequitable defence.

80.                Counsel submitted that in the peculiar circumstances of this case, to permit the Defendant to rely on the said exhibits XX3B would amount to rewarding unfair labour practice and encouraging employers to act in bad faith. Counsel urged the court to resolve this issue in favour of the claimant against the defendant. This Honourable Court, being a court of equity and justice, is urged to hold that the Defendant is estopped from rescinding from the promises contained in the Claimant’s employment letters, and to consequently enter judgment in favour of the Claimant for all outstanding entitlements.

81.                Issue 3: Whether upon the careful perusal of all the evidence led, the Claimant has proved his case to be entitled to the reliefs sought.

82.                In arguing issue 3; counsel submitted that unlike every other genre of contract, contract of employment is regulated by the terms entered into between the employer and the employee, usually reduced into writing and displayed in the letter of employment. Parties are bound by the terms embodied in their contract of employment and the court will not go outside the contract in search of more palatable terms for one of the parties. Extrinsic evidence is not admissible to add to vary or subtract any of the terms.  In support of this argument counsel relied on the case of LAYADE V. PANAPINA (1996) 6 NWLR (PT. 456) P. 544 AT PAGE 558.

83.                Counsel continued his submission that the position above canvassed was reached in AFRIBANK (NIG). PLC V. OSISANYA (2000) 1 NWLR (PT. 642) 592 CA, as the contract of service was referred to as “the bedrock” for which the court must consider in any labour related action, hence the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of parties. Such terms are usually contained in the Letter of Employments, Staff handbook and other documents related to the employment, where the conditions for service are spelt out. In support of this submission counsel relied on the case of Oforishe v. N.G.C (2018) Vol 275 LRCN 106.

84.                Counsel submitted that the Claimant who seeks declaratory relief must establish his entitlement to the declaration by credible evidence and will succeed on the strength of his case, not on the weakness of the defence or admission by the Defendant. Since a declaratory relief involves the exercise of the Court’s discretion, the Claimant must place sufficient materials before the Court to justify the grant of the declaration. To support this proposition counsel cited and relied on the case of NDUUL V. WAYO & ORS [2018] 7 SC [PT III] 164 AT 213, U.T.C. NIGERIA PLC V. PETERS [2022] 18 NWLR [PT 1862] 297 AT 312, 313, AND OSHO V. ADELEYE & ORS [2024] 8 NWLR [PT 1941] 431 AT 452. In resolving employment disputes, the Court will usually refer to the employment contract and any other stipulations incorporated or deemed to have been incorporated into the contract. See JOWAN & ORS V. DELTA STEEL COMPANY LTD [2013] 1 ACELR 18 AT 24, ADEKUNLE V. UNITED BANK FOR AFRICA PLC [2019] 17 ACELR 87 AT 108, and GBEDU & ORS V. ITIE & ORS [2020] 3 NWLR [PT 1710] 104 AT 126. The contract of employment is the foundation for an action for breach of an employment contract, and the success or otherwise of the case depends entirely on the terms agreed or deemed to have been agreed by the parties. In support of this contention counsel relied on the case of UMERA V. NIGERIAN RAILWAY CORPORATION [2022] 10 NWLR [PT 1838] 349 AT 386 and GYUBOK V. THE FEDERAL POLYTECHNIC, BAUCHI & ANOR [2024] 16 NWLR [PT 1965] 515 AT 549.

85.                In view of the foregoing submission, counsel call on this court to consider first exhibits C1, C2 and C3 to derive the employment relation of both parties distinctively. In the instant case, the main contention of the Claimant is that he is entitled to his remuneration as per exhibits C2 and C3 on the period he worked under the roles designated therein pursuant to the termination of his employment with the Defendant. Counsel submitted that for proper appreciation of the evidence of the Claimant’s case is as contained in the argument of Claimant in paragraphs 1.5-5.2 above.

86.                Counsel submitted that the question that has arisen at this point is whether the Claimant has proved his case. The answer of this poser is in the affirmative. This Honorable Court has been presented Exhibits C2 and C3 which is the basis of this suit unchallenged and uncontroverted. All other exhibits (C4-C15) before the honourable court are linked to the claims of the unpaid entitlement contained in exhibits C2 and C3. It is a settled position of law that he who alleges to him the onus to prove same lies. it is the party that asserts the existence of a particular fact in its pleading that is required to prove such fact by adducing credible evidence. If such a party fails to do so, his claim will fail, as the burden of a particular fact is usually on the party who asserts same to prove it. Section 131 of Evidence Act. The Claimant in  performance of this duty have brought all cogent and convincing documents before the honorable court  and all the parties are bounded by the contracts or agreement. A.G RIVERS STATE V. AG AKWA IBOM (SUPRA)

87.                Counsel submitted that the claimant has discharged the burden of prove allotted to him by the Evidence Act to be entitled to the grant of the reliefs in this case. See Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (pt. 856) 100 where it was stated that when an employee or former employee complains that his employer is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the onus to:

a.    To place before the court, the staff conditions of service or terms of the contract of employment; and

b.   To prove in what manner the said staff conditions of service or terms of contract of service were breached by the employer.

88.                Counsel submitted that the Claimant herein has placed all material facts and documents before this honorable court to show that he is entitled to all the entitlements contained in his claim, and we urge the court to so hold. One of exhibit before this court which have clearly shown the claims of the claimant is exhibits C2 and C3 and same cannot been disputed by the Defendant as this honorable court is urged to so hold as the court will not add or subtract anything to favour any party. As decided in Afribank (Nig). Plc v. Osisanya (Supra).

89.                Again, it is a settled fact in law as held in Oforishe v. N.G.C (2018) Vol 275 LRCN 106 that the letter of employment as well as the staff handbook are the documents for which the terms of parties can be clearly adduced from. The Claimant has made heavy weather of exhibit XX3B before this honorable court and relies on same to prove his case. It is the contention of the Claimant that the said exhibit XX3B was made in isolation of exhibit C2 and C3 which ought not to be so.

90.                Counsel further submitted that the Defendant through its witness DW1 has repeatedly mentioned that he cannot answer questions concerning exhibit C2 and C3, but yet counsel in his address is attempting to give evidence not given by the witness in the witness box. The honourable court has held in plethora of cases that no matter the brilliance of the final address filed by counsel, it cannot take the place of evidence, it does not add to the pleadings or evidence already by the trial court. On this contention counsel call in aid the cases of AZIKE V. ARARUME (2005) ALL FWLR (PT. 263) p. 740 at 754, BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PT. 109) 52, NWANOSIKE V. JOHN HOLT (2006) ALL FWLR (PT. 301) 1809. This action of the Defendant’s witness at best supports the case of the Claimant, as same is unchallenged and uncontroverted. The totality of evidence adduced by the claimant has remained intact as no shred of the Defence case has caused any legal challenge on the evidence presented by the Claimant.

91.                On the argument that general and special damages must be strictly proved on facts pleaded and evidence placed before it, counsel submitted that the Claimant in this case has laid the relevant evidence and facts before this honourable court to be granted this leg of the relief. All the exhibits pleaded by the Claimant are all in sync with the facts pleaded which establishes the claim of the claimant, therefore this honourable court is duty bound to look at same, especially exhibits C1, C2 and C3 respectively. The evidence of the claimant clearly displays the breach and as such he is entitled to the relief of damages.

92.                Counsel submitted that in paragraph 4.13, the Defendant has attempted to mislead the honourable court by alleging that the Claimant lumped up the Defendant herein on record with Unicem Community Development Initiative (UCDI). First, paragraph 3 of the Statement of facts and the Claimant witness statement on oath is reproduced as follows:

“By an offer of appointment dated 28^th May 2013, the Claimant was employed as a “Mechanical Instructor” to perform obligations attached to the position at the Unicem Community Development Initiative  (UCDI – Training Institute), Calabar, Nigeria. The Offer of appointment dated 28^th May 2013 is hereby pleaded and shall be relied upon during trial before this honourable court”.

93.                The Defendant while filling her statement of defence admitted the said averment without countering same. The law is trite that evidence that is neither unchallenged nor debunked remains good and credible evidence which should be relied upon by the trial judge and we urge the court to so hold. EBENIWE V. STATE (2011)7 NWLR (PT. 1246) p. 402 @ 416 Per. Mukhtar Jsc, KOPEK CONSTRUCTION LTD V. EKISOLA (2010)3 NWLR (PT. 1182) p. 618 @ 663, INSURANCE BROKERS OF NIGERIA V. ATMN 91996) 8 NWLR (PT. 466) 316 @327. Facts admitted need no further prove, therefore the Defendant cannot be seen to be blowing hot and cold at the same time. Section 123 of the Evidence Act 2011. SKYE BANK PLC & ANOR v. AKINPELU (2010) 3 SC (PT. II) 29.

94.                Counsel invited this Court to consider exhibit C1, where it was clearly written there as the heading UNICEM (UCDI), and below the said document “UNICEM COMMUNITY DEVELOPMENT INITIATIVE”. The Claimant has not denied the said document at any point, hence, there is no issue. Again, under cross examination, DW1 has clearly affirmed this position thus

“…I see the name of the Defendant on Exhibit C1, C2 and C3. The Duties contained in Exhibits C4-C9 were the duties the Claimant performed while in the employ of the Defendant”.

95.                According to counsel the Defendant cannot now attempt to mislead the court in trying to distinguish the Unicem Community Development Initiative (UCDI) from the Defendant in her  paragraphs 4.13-4.19 as the relationship between the Claimant, the Defendant as well as Unicem Community Development Initiative (UCDI) respectively are clearly from the pleadings of the Claimant, and counsel urged the honourable court to so hold.

96.                On whether the Claimant has reasonable cause of action against the Defendant, counsel relies on all the arguments contained in issue 1 and issue 2, and further submitted that the Claimant has raised reasonable cause of action against the Defendant for unpaid entitlements. A.G FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 SC @ 75. It was also submitted that a proper consideration of the statement of facts in this case will clearly show that the Claimant has reasonable cause of action against the Defendant. The Defendant is estopped from blowing hot and cold at the same time. Wherein at one hand, she admits to Exhibit C1 and on the other hand, denies Exhibit C2 and C3 alleging that the UCDI is a separate legal entity with the Defendant, a fact that was never contended in the statement of defence and throughout the Defendant’s case.  Section 169 of the Evidence Act, 2011. LAWAL V. HON COMM LANDS, HOUSING & SURVEY OO STATE (2013) LPELR 21114, UDE V. NWARA & ANOR (1993) 2 NWLR (PT. 278) 602 @ 638.

97.                Counsel urged the court to hold that claimant has proved his case to be entitled to the reliefs sought, dismiss the Defence of the Defendant and grant all the reliefs of the Claimant in the interest of justice. Counsel also submitted that this Court has the authority under Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, to award post-judgment interest at no less than 10% per annum. Counsel urged the court to so hold .

REPLY ON POINTS OF LAW

98.                Counsel for the defendant filed a reply on points of law to the claimant’s final written address. The reply filed by counsel for the defendant focused on principle of law to the effect that where an employee has been paid terminal benefits he cannot after accepting the terminal benefits turn round to challenge his termination or dismissal from service. Several decided cases were cited in the reply to support the position being canvassed by counsel.

COURT’S DECISION:

99.                I have considered the processes filed by the parties in this suit, the evidence led at the trial as well as the written and oral submission of counsel for the parties.

100.             To my mind the issue calling for resolution in this case is whether having regards to the evidence adduced before the court the claimant he has proved entitlement to any of the reliefs sought.

101.             The facts that necessitated filing of this suit are straight forward and not much in dispute. From the pleadings and evidence before this Court, the claimant, Engineer Solomon Olorunfemi, was employed by the defendant, lafarge Africa plc (or its predecessor, UNICEM). The claimant’s employment relationship with the defendant commenced as a Mechanical Instructor, which spanned the period from 3^rd day of June, 2013, to 4^th day of May, 2023. The claimant served in three distinct capacities during his employment, including mechanical instructor, lecturer ii, and rector/principal lecturer. The claimant retired from the defendant's service on or around 4^th day of May, 2023, and received terminal benefits.

102.             The claimant relying on exhibits C2 and C3, now approached this court to claim remuneration for two out of the three distinct capacities he served the defendant i.e. the role he served from 15^th day of December, 2014, as lecturer ii and from 16^th day of July, 2016, as rector /principal lecturer. By his originating process the claimant is claiming entitlement to all remunerations and benefits attached to the two letters of appointments, exhibits C2 and C3, respectively.

103.             The Defendant, while admitting that the Claimant worked during this period, disputes the validity of the claims for unpaid remunerations and benefits for the Lecturer II and rector/principal lecturer roles, arguing that the Claimant accepted full and final settlement of all entitlements upon retirement. The claimant is estopped from making any other claim subsequently against the defendant as the claimant had by exhibits XX3B, forfeited and waived any right of claim against the defendant.

104.             The core dispute which this court is saddled with responsibility of resolving is whether the Claimant is legally entitled to the specific outstanding remunerations and benefits claimed for the periods corresponding to the Lecturer II and Rector/principal lecturer  appointments, despite signing a full and final settlement document, exhibit XX3B.

105.             Furthermore, The Claimant seeks payment of N51,009,750.00 for basic salary and N38,436,801.00 for allowances due, covering the period from December 15, 2014, till May 2023, arguing that the Defendant unlawfully refused to make the said payment to him. The Defendant contends that the Claimant is estopped from claiming these specific sums because, on June 6, 2023, the Claimant signed an acknowledgment (Exhibit XX3B) accepting the payment breakdown exhibit XX3A as 'full and final settlement' of all entitlements, thereby releasing the defendant from all claims arising out of his service. The fact in dispute is whether the Claimant's signature on the full and final settlement document legally bars him from pursuing the specific monetary claims for unpaid salary and allowances dating back to 2014.

106.             The Claimant also seeks an order compelling the Defendant to issue a Certificate of Service specifically for the role of Rector/Principal Lecturer. The Defendant asserts that a Certificate of Service was issued to the Claimant on June 5, 2023, as part of the terminal benefits package exhibit XX3A. The dispute centers on whether the Certificate of Service issued adequately reflects the Claimant's service as Rector/Principal Lecturer, or if a separate, specific certificate is required and legally due.

107.             However, before delving into the determination of the claimant’s claim, I shall endeavour to deal with the preliminary objection raised by the defendant on alleged non-disclosure of a reasonable cause of action by the claimant. This is a fundamental issue that deserved to be first dealt with.   

108.             Both the defendant and the claimant have in their addresses advanced argument for and against the alleged non-disclosure of a reasonable cause of action. I have hereinbefore captured the argument of counsel on this issue as argued in their respective written addresses. Suffice to say that the defendant is of the view that the claimant’s action is devoid of a reasonable cause of action. While the claimant is  of the view that the case of the claimant is properly before the court and has disclosed a reasonable cause of action.

109.             In determining whether there is disclosed a cause of action or a reasonable cause of action, the court has to look at and consider the facts as pleaded in the statement of claim/facts filed by the claimant on which the claims made are predicated. In other words, the only relevant document a court has to or needs to consider or looked at in the determination of whether a cause of action or a reasonable cause of action exists or is shown in a case, is the statement of claim/facts i.e. the pleading of the claimant, which contains of all the facts relied on by the claimant/plaintiff in making a claim against a defendant and seeking judicial remedy from the court. See Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392; Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210; Onadeko v. U.B.N. Plc (2005) 4 NWLR (Pt. 916) 440; Bright Motors Ltd. v. Honda Motor C. Ltd. (1998) 12 NWLR (Pt. 577) 230; Seagull Oil Ltd. v. Moni Pulo Ltd. (2011) 15 NWLR (Pt. 1271) 525.

110.             Under the Nigerian law, a reasonable cause of action must reveal some facts which, if proved, would entitle the claimant to the reliefs sought. From the pleadings of the claimant his claim borders on claim for unpaid remuneration based on alleged upgrades in employment positions to lecturer ii and rector/principal lecturer. The basis of the claim is exhibits C2 and C3, which are the letters of employment for the posts on which claim is being made by the claimant. According to the claimant he had not been paid the remuneration for the two posts despite having served the duties of those posts. It is clear to me from the pleadings of the claimant the claimant has disclosed a reasonable cause of action against the defendant in this case more particularly taking into consideration paragraphs 1 to 3 of the statement of facts coupled with exhibits C2 and C3, respectively.

111.             The claimant is also claiming that the certificate of service issued to him did not state his correct designation and position held as at the time of his retirement from the service of the defendant.  

112.             The argument of the defendant that the claimant having claimed to have worked for UNICEM community initiate (institute), ought to have joined UNICEM as a party cannot assist the case of the defendant, for the simple reason that if there is such failure it will only amount to non-joinder which will not affect the validity of the suit on ground of alleged non-disclosure of a reasonable cause of action. In any event the court has a bounden duty to determine liability of parties before it appropriately.

113.             In the case of Thomas v Olufosoye (1986) 1 NWLR (Pt. 18) 669, the Supreme Court gave meaning of cause of action and reasonable cause of action: Per Obaseki, J.S.C:

"I will pause at this stage to look into the meaning of "cause of action''. The definition appears in the White Book. I will refer to the 1976 White Book - The Supreme Court Practice Volume 1 page 161 15/1/2A. There, the meaning of 'cause of action' as stated by eminent Judges in England and Ireland is given as follows:

"(1) The words "cause of action" comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court (see Read v. Brown (1888) 22 QBD 128 per Lord Esher, MR. at p. 131.)

(2)The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed. (See Cooke v. Gill (1873) LR 8 CP 107, per Brett, J. at 108)

(3)The words have been defined as meaning "simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person" (per Diplock L.J. in Letank v. Cooper (1965) 1 QB 222 at p. 242);

114.             On meaning of "No reasonable Cause of Action": Per Obaseki, J.S.C.:

"What then, do the phrase "No reasonable cause of action" mean? There is some difficulty in giving a precise meaning to this term. In point of law, every cause of action is a reasonable one. (See per Chitty J. in Rep. of Peru v. Peruvian Guano Co. 35 Ch. D. p. 495). Lord Pearson in Drummond-Jackson v. Britain Medical Association (1970) 1 WLR 688; (1970) 1 All ER 1094 CA defined 'a reasonable cause of action as meaning a cause of action with some chance of success when only the allegations in the pleading are considered'. The practice is clear. So long as the statement of claim or the particulars disclose some cause of action or raise some question fit to be decided by a Judge or jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out (Moore v. Lawson 31 TLR. 418 CA). Where the statement of claim discloses no cause of action and if the court is satisfied that no amendment, however ingenious will cure the defect the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed".

115.             It is clear from the above definitions of cause of action and reasonable cause of action all that the claimant is required to do in law to have cause of action and reasonable cause of action is to raise some question fit to be decided by a judge or jury. Once this is done, the mere fact that the case is weak and not likely to succeed is no ground for striking it out.

116.             In the case at hand the claimant is claiming for remunerations for services rendered. In labour law remuneration is right of employee which the employer is duty bound to pay. By his claim the claimant has shown that the remedy he is seeking from court is based on his right or entitlement to be paid for services rendered. This has in no doubt established existence of a cause of action a reasonable one for that matter.

117.             I have carefully and painstakingly considered the pleadings before me and I am satisfied the claimant in this case by his pleadings has disclosed a reasonable cause of action. The objection of the defendant on non-disclosure of a reasonable cause of action failed same is hereby rejected.

118.             Coming to the determination of the case presented by the claimant, the issue calling for resolution is whether the claimant has by the evidence adduced before the court proved entitlement to any of the reliefs sought. The law is settled that he who assert must prove. In the case at hand the claimant being the one that asserts entitlement to be paid remuneration for the two posts on which he served the defendant and entitled to  having certificate of service showing that his last position with the defendant was rector/principal lecturer he has the onus of proving his assertions. For the court to enter judgment in his favour the claimant must adduced sufficient credible admissible evidence in proof of his claim before the court. It is when the claimant has discharged the burden of proof imposed on him by the law that the burden will shift to the defendant. see sections 131, 132, 133, 134 and 136 of the Evidence Act as amended. See also Vepee Industry limited c cocoa Industry Limited (2008) 1 NWLR (Pt.1105) 486; Fajemirokun v GB Nigeria Limited (2009) 5 NWLR (pt.1135) 588; Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299.

119.             The crux of the claim of the claimant is for payment of outstanding remunerations and benefits for the periods the claimant served as Lecturer II and Rector/Principal Lecturer, respectively. The evidence relied by the claimant in proof of his entitlement to the accrued remuneration for the service rendered by him as lecturer ii and rector/principal lecturer, is exhibits C2 and C3, which are the letters for appointment to the respective posts. He also relied on exhibits C4, C5,C6, C7, C8, C9, C10, C11, C12, C13, C14, CR1 and CR2, to show that he worked for the defendant in line with exhibits C2 and C3 which are the letters appointing him to the positions of lecturer ii and rector/principal lecturer.

120.             The defendant despite admitting that the claimant was her employee and despite having admitted that the claimant served from 3^rd day of June, 2013 to 4^th day of May, 2023, when he retired from service for having clocked the retirement age in the service of the defendant, is denying the service rendered by the claimant to her as per exhibits C2 and C3. By the denial the defendant seems not to be consistent in presentation of her case.

121.             In law a party is required to be consistent in presentation of his case before the court. The defendant having admitted claimant to be her employee and having admitted that the claimant served her from 3^rd day of June, 2013 to 4^th day of May, 2023, when he retired and paid his terminal benefits, cannot be heard to change its position by contending that the claimant did not serve the defendant. In the case of DANIEL vs. INEC & ORS. (2015) LPELR- 24566 SC, the apex Court per, FABIYI, JSC had this to say on the subject of consistency in the presentation of cases:

"A party should not be inconsistent in the presentation of his case in Court. No reasonable Court can do anything to assist such a slippery Claimant. Refer to AJIDE vs. KILANI (1985) 3 NWLR (PT.12) 248.’’

122.             In law, consistency is one of the hallmarks of the truth. See Gov of Lagos State V. Ohaigo (Nig.) Ltd (2018) LPELR - 45552 (CA), Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 @ P. 663, Ijomone V. Omonigbo (2022) All FWLR (Pt. 1129) 455; Maiturare v Saidu (2018) LPELR-46510(CA).

123.             The claimant has by paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the statement of facts as well as paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the witness statements on oath, and the exhibits tendered in support been able to establish his appointment to lecturer ii and rector/principal lecturer. He has also been able to prove that he performed the duties attached to those positions as per exhibits C2 and C3. This means the claimant has discharged the onus of proof imposed on him by law as per section 131 of the evidence Act, as amended.

124.             The defendant on its part under cross examination tendered through CW1, exhibit XX1, which the claimant admitted it was issued to him by the defendant. he also admitted signing it. The defendant has insisted in both final written address and the reply on points of law filed on 12^th day of November, 2025, that the claimant having accepted payment of his terminal benefit as full and final payment has no right to make any claim from the defendant as by making claim, the claimant is challenging determination of his employment. Once employee accepted terminal benefit and executed a discharge certificate acknowledging full and final settlement, he is estopped from making any further claims relating to the same employment, as the claimant by his conduct has waived further rights to reopen the matter.

125.             Let me quickly say that contrary to the position taken by the defendant, there is no relief amongst the reliefs being sought that is contesting validity of termination. In fact, the claimant’s employment was never terminated by the defendant. I do not know why the defendant is making frantic effort to smuggle into the claimant’s claim issue of termination of employment. I have examined all the cases cited and relied by the defendant in the reply on points of law they are not on all fours with the facts of this case. The principles those cases seem project borders on whether an employee who had been paid his terminal benefits can turn around to contest validity of termination of his employment. In the case at hand there is no termination and there is no contest of validity of termination.

126.             From exhibit C1, the claimant served the defendant as ‘mechanical instructor’ from 3^rd day of June, 2013 to  28^th day of February, 2015. From 1^st day of March, 2015 to 31^st day of December, 2015, the claimant served the defendant as lecturer ii. From 1^st day of January, 2016, to 30^th day of June, 2018, the claimant served the defendant as ‘mechanical instructor’. While from 1^st day of July, 2018 to 4^th day of May, 2023, when the claimant retired from service, he served the defendant as rector/principal lecturer. See exhibits C1, C2, XX1 and C3.

127.             The counsel for the claimant in his submission has insisted  that the claimants had only three letters of employment exhibits C1, C2 and C3 and no more. However, under cross examination exhibit XX1 was tendered through the claimant and this letter was another letter appointing the claimant to the position of ‘mechanical instructor’ with remuneration different from the remuneration contained in exhibit C1, which appointed the claimant to same position. But the claimant chose not to make any claim based on exhibit XX1. With exhibit XX1, which claimant has admitted having been served with it means the appointment of claimant to the position of ‘mechanical instructor’ was made twice. This also shows the claimant served as ‘mechanical instructor’ from 1^st day of January, 2016, to 30^th day of June, 2018, for the second time.

128.             The revelation from exhibit XX1, also goes to show that the claimant has no any claim in respect of the said appointment. It also shows that for the period covering 1^st day of January, 2016 to 30^th day of June, 2018, the claimant has no any claim against the defendant since the letter explicitly stated that the new employment was as a result of the integration of Lafarge and Holcim entities in Nigeria. And it supersedes any previous employment with any of the legacy businesses. Exhibit XX1, is also proof that

129.             The defendant's primary defence rests on the doctrine of estoppel and waiver, arguing that by signing and accepting the itemized terminal benefits as 'full and final payment of all claims whether known or unknown,' the employee is precluded from making further claims. In Nigerian law, estoppel prevents a party from asserting a claim or right that contradicts a previous statement or action, especially when another party has relied on that statement or action to their detriment. Waiver, on the other hand, is the voluntary relinquishment or abandonment of a known legal right or advantage. For a waiver to be effective, it must be shown that the party waiving the right did so voluntarily, unequivocally, and with full knowledge of the right being waived.

130.             Now, the issue to be resolved on outstanding remunerations of the claimant as per exhibits C2 and C3, revolves around the legal effect of the Claimant's alleged acceptance of a 'full and final settlement' as per exhibit XX3B. this court is now saddled with responsibility of determining whether the claim for outstanding remunerations and benefits accrued during the claimant’s service as Lecturer II and Rector/Principal Lecturer, has been negatively whittled down by exhibit XX3B, showing the claimant by signing exhibit XX3B, has accepted the benefits stated therein as full and final settlement of his entitlement and constitutes a valid waiver or compromise that extinguishes his right to the outstanding claims.

131.             In matters concerning settlement agreements, the law requires that there must be a clear and unequivocal agreement between the parties, supported by consideration, to compromise existing disputes. Where a party accepts a sum stated to be in full and final settlement, it generally implies a waiver of further claims related to the subject matter of that settlement, provided the settlement itself was validly entered into and not procured by fraud or misrepresentation. The Claimant, having served in various capacities, is claiming entitlements based on those roles. The Defendant relies on exhibit XX3B as a bar to these claims.

132.             There are several documents tendered by the parties to support their respective positions. I have thoroughly examined all the exhibits tendered by the parties in this case. This is because in law documentary evidence is regarded as vital and superior to oral evidence. This is so because while a witness may lie and his evidence may not be accepted, documents, it is said do not lie, and once properly received, the Court is bound to act upon it. In the case of F.A.T.B. Ltd v. PARTNERSHIP INV CO. LTD (2003) 18 NWLR (Pt. 857) 35, @ 74 the Supreme Court per Iguh JSC emphasizing on the importance and superiority of documentary evidence stated thus:- "Documentary evidence, where it is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness which may not be readily accepted by the Court. See B.O.N. LTD V. SALEH (1999) 9 NWLR (Pt. 618) 331. See also Section 132(1) of the Evidence Act Cap 112 Laws of Federal Republic of Nigeria." See also FBN v. MAY CLINIC (2001) 4 SCNJ 1 @ 72, UBN LTD v. OZIGI(1994) 3 NWLR (Pt. 333) 385. Thus, why documentary evidence is used as a hanger from which to test the veracity of evidence whether oral or by deposition. It is also settled that it could be used to resolve an issue or conflicting evidence, as documents speak for themselves. See OBILEVE VS ADDINGI (2012) LPELR 14281; ODUCHE VS ODUCHE (2005) LPELR 5976; BUNGE VS GOVERNOR RIVERS STATE (2006) ALL FWLR PT 325 PG 1, ESSIEN VS ETUKUDO (2009) ALL FWLR PT 496 PG 1886. U.N.I.C. VS UCIC. LTD (1993) 3 NWLR PT 593 PG 17.

133.             I note that the claimant’s claim is not on terminal benefit but on unpaid remunerations and allowances for services rendered to the defendant. This means the alleged waiver or compromise arising from the acceptance of a 'full and final settlement' in the context of outstanding contractual entitlements, does not arise by signing of exhibit XX3B, by the claimant. The law is trite and consistent that a waiver must be clear and unambiguous. The claimant’s claim is for ‘unpaid remuneration’ for services rendered, which is distinct from the calculation of ‘terminal benefits’ as per exhibits D1 and XX3B. While terminal benefits are typically calculated based on an employee's service and remuneration as per the terms of employment or company policy, a claim for unpaid salaries for work already performed constitutes a fundamental breach of the employment contract regarding wages. The case of ULEGEDE & ANOR v. MILITARY ADMINISTRATOR, BENUE STATE & ORS (2000) LPELR-5987(CA), emphasizes that an employee is entitled to benefits or entitlements that had accrued before their dismissal or termination. This principle suggests that earned wages are a fundamental entitlement. The question then becomes whether a general 'full and final payment' clause in a terminal benefits document can extinguish a claim for specific, unremunerated services rendered by the claimant to the defendant. Exhibits C2 and C3, are clear and unambigous, they say wat they says. By those exhibits claimant was employed as lecturer ii and rector/principal lecturer. Vide exhibits C4 – C14, CR1 and CR2, the claimant performed the duties of those offices but he was not paid or remunerated as per exhibits C2 and C3. The defendant attempted to claim that the claimant did not serve the defendant, but served UNICEM, however, this assertion has been whittled down by the admission of the defendant that claimant was her employee and served from 3^rd June, 2013 to 3^rd day of May, 2023. The exhibits tendered by the defendants D1, D2, D3 and XX1 and XX2, clearly support the case of the claimant he served the defendant. Exhibits C2 and C3, also established that claimant was employed on those positions and he served.

134.             It is clear to me the failure by the defendant to pay the claimant his appropriate remuneration as per exhibits C2 and C3, is a clear abdication of responsibility as an employer is duty bound to pay his employee his remuneration as and when due. The non-payment of claimant’s remuneration as per exhibits C2 and C3, is a separate breach committed by the defendant not covered by the general waiver related to terminal benefit calculation.

135.             The claimant has admitted receipt of the terminal benefits as tabulated and itemized in exhibit XX3B. Thereafter, his counsel wrote letter of demand of his unpaid remuneration on his instruction to the defendant. See exhibit C14. However, the defendant stated that the claimant did not protest the payment contained in exhibit XX3B rather he collected the said payment as full and final settlement of whatever claim he may. Can it be correct to say that the claimant when presented with exhibit XX3B, and he was required to sign it before he was paid as at that time. The claimant as at the time of signing exhibit XX3B he was concerned with terminal benefit  the subject of the said exhibit in the circumstances, it will be unfair to include unpaid remuneration which is a separate distinct claim from terminal benefit.

136.             As pointed out earlier the reliefs claimed,  relate to earned salaries and unpaid allowances and not payment of incorrect benefits. The mere fact that the claimant collected the benefits that were computed and paid to him as his final entitlements cannot estopped him from challenging the non-payment of unpaid earned salaries and allowances for work done. See Court of Appeal Calabar Division in the case of Panabiz International Ltd v. Addidon Nig Ltd & Anor (2016) LPELR-41350 (CA) 26-28, F-A, where it was stated that payment of lesser amount cannot estop claimant from making claim.

137.             It is to be noted that claim for earned unpaid salaries and allowances are such claims that the law allows an employee to claim even in situation of termination or dismissal from service. See Udegbunam v. F.C.D.A. (2003) 10 NWLR (Pt. 829) 487. In a claim for wrongful termination of appointment, an employee can also claim for salaries, leave allowances, etc., earned by the employee but not paid by the employer at the time of the termination.

138.             The important thing is whether the claimant is able to establish his claims. To hold otherwise would amount to allowing the defendant to practice fraud on the claimant. Estoppel cannot be urged where issue of fraud or illegality is concerned. See Ntung & Ors v. Longkwang & Ors (2018) LPELR-45624 (CA) and AG Bendel State v. AGF (1981) LPELR-605 (SC)39-40, F-E. It would be plainly illegal, fraudulent and unconscionable to allow the defendant to rely on estoppel to prevent the claimant from proving entitlements to unpaid remuneration of services rendered, simply because he collected that which he regarded as full and final payment of his terminal benefits. After all, there was no evidence of any negotiation leading to the purported full and final payment to warrant the argument from the defendant that signing of exhibit XX3B, by the claimant amount acceptance of what was stated in the exhibit as full and final payment, thereby waiving his right of making any claim in respect of services rendered to the defendant. The most elementary principle of contract is that agreement precedes contract.

139.             It is pertinent to stress here that for exhibit XX3B to have any impact on the claimant’s claim, the agreement if any must be voluntary and consideration is vital to any agreement, there is no any evidence that there is review of the agreement as per exhibits C2 and C3. In this case there was no consideration furnished for the contract reviewing the claimant’s entitlement and as such there’s no contract to constitute estoppel by conduct. The purported contract exhibit XX3B relied upon was merely a worthless piece of paper having no any legal effect for lack of consideration. For this reason, the action of the defendant in making the claimant to sign exhibit XX3B amount to unfair labour practice and that the purported execution of the purported contract was evidence of bad faith on part of the defendant. It also shows that for the period the claimant worked and served the defendant, the defendant only wants to take benefit of claimant’s service but had no intention of remunerating the claimant commensurate to the services rendered to the defendant, this is an injustice, no court of law or equity will allow. It must also be noted that the mere fact that an employee accepted the payment of lower entitlement does not disentitle him from what rightfully belongs to him. He can claim the difference in an action, as the claimant is doing in this court.

140.             From all I have been saying above, issue of estoppel or waiver are not of any moment, as the defendant wants the Court to believe. In view of this finding, I come to the conclusion that the claimant is entitled to claim unpaid remuneration and allowances commensurate to the services he rendered to the claimant as senior lecturer ii and rector/principal lecturer, respectively.

141.             Now, the task to be performed is to determine whether the claimant has proved entitlement to the sum of N51,009,750.00 (Fifty-One Million Nine Thousand Seven Hundred and Fifty Naira) only, as his basic salary and N38,436.801.00 (Thirty-Eight Million Four Hundred and Thirty-Six thousand Eight Hundred and One naira) only,  as allowances due to the claimant from December 15, 2014 till May, 2023. In law claim for basic salary and allowances, being monetary in nature are claim for special damages which the law imposed a duty on the claimant to specially plead particularized and proved strictly by cogent credible admissible evidence.

142.             I have scrutinized the claimant’s pleadings as well as his evidence in chief and under cross examination, what emerges is that the claimant failed to particularize the salaries and allowances being claimed, despite stating the period of claim, this is a significant fatal default that is costly to the claim of the claimant for special damages.

143.             Under our labour jurisprudence, for a claimant to succeed on his claim for special damages he must be able to do so by the strength of his case by showing how the amount being claimed was calculated and the quantum/lumpsum arrived at. He must do this by showing breakdown of the claim by periods. The salary scale applicable to each posts/position. He must also be able to show the difference amounts unpaid. This is because by his paragraphs 11, 12 and 18 of the statement of facts, the claimant has stated that he was not paid any  entitlements in compliance with figures and terms of employment as per exhibits C2 and C3. As according to the claimant, the defendant continued to place him on his remuneration as mechanical instructor.

144.             It is only when claimant has supplied necessary sufficient particulars that the defendant will be able to properly respond. The court would also be in a position to assess and evaluate the claim of the claimant so as to verify the calculation and see if the quantum/lumpsum being claimed by the claimant has been proved.

145.             It should be remembered that the claimant’s claim for the sum of N51,009,750.00 (Fifty-One Million Nine Thousand Seven Hundred and Fifty Naira) basic salary, and the sum of N38,436.801.00 (Thirty-Eight Million Four Hundred and Thirty-Six thousand Eight Hundred and One naira) for allowances. The burden of establishing entitlement to the basic salary and allowances as per claim of the claimant is on the claimant. The claimant must prove the exact basic salary as per the salary scale for each of the positions held to which he claims basic salary and allowances. What he was actually paid versus what should have been paid and what was not paid. This will enable the court know the actual deficit in the payment of basic salary and allowances.

146.             The lumping of sums being claimed as basic salary and allowances without particularization, showing the exact basic monthly salary for each position held, lack of calculation of arrears on monthly basis for each position and lack of any documentary evidence showing the basic salary and allowances have clearly established the absence of proof of the special damages. Exhibit C2 and C3, did not help matters as these exhibits did not specify what the basic salary and allowances are.

147.             Let me iterate that in claim for special damages, pleadings must contain sufficient particulars to enable the opposing party to understand the case they have to meet and to prepare their defence adequately. This is a fundamental requirement of fair hearing and due process. The rules of this court, mandate that a claimant must provide sufficient details of their claim, including how the sum claimed is arrived at. Without particularization, the defendant cannot effectively challenge the quantum of the claim, nor can the court properly assess the merits of the claim. See  AGOMUO v. FIDELITY BANK LTD (2023) LPELR-60663(CA), in this case the Court of Appeal highlighted what the Court considers in determining entitlements of an employee which include letter of employment pay slip etc and the effect of failure to present same.

148.             In this case the claimant apart from exhibit C2 and C3, did not tender his pay slip or a pay slip of his colleague on the same grade level to show what is his salary on that post is. The claimant who also stated that the defendant continued to pay his remuneration based on mechanical instructor did not state what was his salary as mechanical instructor or even tender his pay slip or statement of account showing the salary of mechanical instructor for the court to be able to see the difference between what he was being paid and what he was supposed to be paid and arrived at the conclusion of what was outstanding.

149.             In view of the absence of what was paid to the claimant as mechanical instructor for the period of claim and what the claimant is entitled as lecturer ii and rector/principal lecturer, for the court to find the difference by subtracting what was paid from the entitlement of the claimant for the period he is claiming remuneration, the court will not be able to come to conclusion as to what the claimant is actually entitled to as his unpaid remuneration. The court will not be justified to grant the claimant’s claim in the absence of proper particularization and strict proof. The Court cannot speculate on the earnings of the claimant. To plead and without strict proof, means no proof. The reliefs are not supportable by primary facts or evidence. A lack of particularization is a defect that has significantly weaken the claimant's case, irrespective of the finding that he is entitled to claim unpaid remunerations and unpaid allowances. The reason being that for the claim on salary and allowances to succeed they have to be proved by cogent credible admissible evidence.

150.             Therefore, the failure of the claimant to particularize the sums being claimed as salaries and allowances is a serious blunder fatal to the claim. The court will not be in a position to entertain a claim where the basis of the calculation is not clearly laid out. Even if the substantive claim for unpaid wages is strong. See A.G., Oyo State v. Fair Lakes Hotel (1989) 5 NWLR (Pt. 121) 255; Charles Udegbunam v. F.C.D.A. Ors (2003) LPELR-3291(SC).

151.             The obligation to particularize a claim for special damages arises, not because the nature of the loss is necessarily unusual, but because a claimant who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In this case, the claimant pleaded his claim for special damages, but failed to particularized. See F.B.N. Plc v. Associated Motor Co. Ltd. (1998) 10 NWLR (Pt. 570) 441; British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253. Special damages must not only be specially pleaded with relevant particulars but must also be strictly proved with credible evidence. Without such proof no special damages can be awarded. In other words, any evidence no matter how unchallenged or contradicted which falls short of what is required to prove special damages must be rejected. In the instant case, the claimant lumped his claim for basic salary for the period of claim without specifying which claim is for lecturer ii and which claim is for rector/principal lecturer. He has also lumped claim for unpaid allowances without specifying the allowances for each post. It is not the duty of this court to specify each item of claim it is the duty of the claimant which he failed to discharge. This means relief 24 e) fails same is hereby refused. See Shell B.P. v. Cole (1978) 2 SC 183; Dumez v. Ogboli (1977) 2 SC 45; Gurara Sec. & Fin Ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29; Agharuka v. F.B.N. Ltd. (2010) 3 NWLR (Pt. 1182) 465; Aharanwa V. Peoples Bank of Nigeria Ltd & Anor (2018) LPELR-43985(CA); Daniel v. Damen [2024] 10 NWLR (Pt 1947) 485 at 516.

152.             On reliefs 24 f), which is for an order directing the defendant to issue a certificate of service to the claimant for rector/principal lecturer as appropriate to service to the defendant.

153.             Certificate of service is usually issued to an employee to accurately reflect his record of service to the his employer. In this case the claimant having served the defendant till his retirement he is entitled to be issue with a certificate of serve that accurately described his correct position at retirement. Vide exhibit C3, the claimant served as rector/principal lecturer from 1^st January, 2018 to 3^rd day of May, 2023, therefore, his certificate should reflect the correct position held at the time of retirement. The claimant is entitled to have his certificate of service to reflect his accurate position as at the time of retirement. This is because an employee has a legitimate interest in having accurate employment records as these affects his future employment opportunities and other professional refutation. In the circumstances relief 24 f), succeed same is hereby granted.

154.             Reliefs 24 g) and h) are for the sum of N10,000,000.00 for general damages for hardship and embarrassment, pain and suffering cause by the defendant and as special damages for hardship, pains and suffering caused to the defendant to the claimant.

155.             It is clear that these reliefs are for the same amount for the same hardship and suffering. This means they overlap.

156.             In law general damages, are damages that the law presumes to be natural or probable consequence of the defendant’s act, need not be specifically pleaded. It arises by inference of law and need not, therefore, be strictly proved by evidence and may be averred generally. On the other hand, special damage is such loss as the law will not presume to be the consequence of the defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. In this case, the respondent clearly and unequivocally pleaded special damages. However, there is no iota of evidence from the claimant in proof of special damages as the said claim was not particularized and strictly proved as required by law. See Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 SC 81; F.B.N. Plc v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) 441.

157.             The obligation to particularize a claim for special damages arises, not because the nature of the loss is necessarily unusual, but because a claimant who has the advantage of being able to base his claim on a precise calculation. Therefore, he must give the defendant access to the facts which make such calculation possible. In this case, the claimant clearly and unequivocally pleaded his claim for special damages, but no particularities and strict proof. See F.B.N. Plc v. Associated Motor Co. Ltd. (1998) 10 NWLR (Pt. 570) 441.

158.             For reliefs i) and j), post judgment interest and costs. In Nigeria post judgment interest and award of cost are at the discretion of the court. The court has discretion of determining the interest to be awarded and costs to be awarded. Cost follows event needs not be specifically pleaded as the court has discretionary power of granting the said reliefs based on its assessment and not on what was claimed.

159.             In view of the foregoing, the claimant has partially succeeded in proving his case. For avoidance of any doubt the orders of the court are as follows:-

                    I.        Reliefs 24. a), b), c), d), succeeds same are hereby granted.

                  II.        Relief e), for payment of the sum of N51,009,750.00 (Fifty-One Million and Nine Thousand, Seven Hundred and Fifty Naira Only) as his basic salary and N38,436,801.00 (Thirty-Eight Million, Four Hundred and Thirty- Six Thousand, Eight Hundred and Ten Thousand Naira Only) for Allowances Due to the Claimant from December 15, 2014 till May 2023, fails due to lack of proof, same is hereby refused and dismissed.

                III.        Relief f), succeed same is hereby granted; the defendant is hereby ordered to issue new certificate of service to the claimant reflecting the correct and accurate post of rector/principal lecturer, the post on which the claimant retired from the services of the defendant.

                 IV.        Relief g), is for damages, the claimant is entitled to damages for embarrassment and pain caused to him by issuing him with wrong certificate of service. The claimant is entitled to the sum of N500,000.00 (Five Hundred Thousand Naira) as damages.

                   V.        Relief h) fails due to lack of proof same is hereby refused.

                 VI.        On cost, I assess cost payable by the defendant to the claimant in the sum of N300,000.00 (Three Hundred Thousand naira) only.

160.             Let me say before ending this judgment that the parties in this case have by the way and manner, they conducted this shows that they tried to outwit each other by not making full disclosure on the facts of this case. It is unfortunate the claimant who was aware of exhibit XX1 and XX3B,  which are very vital fails and neglected to made mention of these documents in his pleading until when he was confronted by the defence counsel under cross examination.

161.             I must state that parties choosing not to make full disclosure on facts and documentary evidence are not helping their clients counsel being ministers in the temple of justice are not to use tricks and unwholesome methods in the quest to win a case before the court at any cost. As ministers in the temple of justice they are required to be honest and make full disclosure even if it is against their clients.

162.             This case also serve as a reminder that counsel must be circumspect when drafting process for filing to ensure no vital fact is omitted. I say no more.

163.             Judgment  is hereby entered accordingly.

 

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Ekene Maduagbuna, Esq; for the defendant with Chris Ekong;  Esq;