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JUDGMENT. 1. The claimant commenced this action via a complainant dated 18th July 2017 and filed on 20th July 2017. The complaint was accompanied by statement of claim, witness statement on oath, photocopies of documents, list of document to be relied on at trial. In the claim the claimant is seeking for the following reliefs. They are: 1. A DECLARATION that the Defendant’s action in keeping the claimant away from duty at the Defendants premises indefinitely as from July, 2015 till date without paying him any amount whatsoever and without due determination of his contract of employment with the Defendant is wrongful, illegal and a gross violation of the terms and conditions of the terms and conditions of the claimant’s employment. 2. A DECLARATION that the claimant is still a staff of the Defendant and therefore entitled to all benefits until his employment with the Defendant is properly determined in accordance with the contract of employment and/or extant Labour Law. 3. A DECLARATION that the said actions of the Defendant in stopping the claimant from work and stopping his payments unduly had caused the claimant serious untold mental, physical, psychological and social inconvenience hardship and embarrassment. 4. AN ORDER directing the Defendant to pay the claimant all his salary and other fringe benefits from May, 2015 (which currently stands at N2,648,673.00 (Two Million, Six Hundred and Forty Eight Thousand, Six Hundred and Seventy Three Naira Only) as at June, 2017, until his employment with the Defendant is properly determined. 5. The sum of N2,000.000.00 (Two Million Naira Only) as cost of litigation. 6. Such further orders as this Court may deem fit to make in the circumstance of this case. 2. The defendant entered conditional appearance on 7/8/17. With the leave of court granted on 7/12/17, the defendant’s statement of defence and its accompanying documents were deemed properly filed and served. The claimant with the leave of court filed a reply to the defendant’s statement of defence and witness statement on oath in support of the reply to the statement of defence. 3. At the trial the claimant testified as CW1, and tendered six documents in evidence. Five out of the six documents were admitted and marked as exhibits CW1A (cash receipt, CW1B1 (letter demanding reinstatement dated 24/3/17), CW1C1-2 (letter of transfer dated 5/11/13, CW1D1 (letter of confirmation of appointment dated 19/11/2001), DW1E1 (merit award) and CW1F (claimants signatures). While one document (letter of disengagement dated 25/6/15), was rejected and marked accordingly. The defendant through DW1 tendered two exhibits which were admitted in evidence and marked as exhibits DW1 (letter of complaint 2/2/16) and DW1B1-2 (reply to letter of complaint). At the close of trial, parties filed their respective final written addresses. On 4/10/18 counsel for both parties adopted their respective final written addresses and the defendant’s reply on points of law. The case was then adjourned to the 29/11/18 for judgment. On 29/11/18 court did not sit and the matter was adjourned to 10/12/18 for judgment. On 10/12/18 when the matter came up for judgment, the court suo motu raised issue of non-suit and asked counsel for both parties to address it on the issue of non –suit. Counsel for the both parties were given 14 days each to file written addresses in respect of the issue non-suit raised suo motu. The counsel for the defendant complied with the directive of the court and filed written address dated on 6/2/19. However, counsel for the claimant choose not file any written address on the issue of non-suit raised by the court suo motu. THE CASE OF THE CLAIMANT. 4. The claimant testified as CW1, he stated that he reside at No 10 Umuekel Igwuruta Road Port Harcourt, Rivers State and at all Material times to this suit he is an employee of the Defendant and Vice Chairman of Defendant’s Lagos Office Branch of its employee’s Labour union. He also stated that he know as a fact that the Defendant was formerly known as HITECH CONSTRUATION COMPANY LIMITED. He further stated that the defendant is a limited Liability Company and carries on business within the Jurisdiction of this Honourable Court. On his employment the claimant testified that he was employed by the Defendant as a Plant Mechanic on the 2nd of May, 2001 and his employment was confirmed via exhibit CW1, CW1D1. Vide CW1C1, he was transferred on the 5th day of November, 2013, to Calabar, Cross River State. He stated that after the completion of the project, all his colleagues were transferred back to Lagos State except him. CW1, went on to state that two months after transfer of his colleagues back to Lagos, on Sunday 28th day of June 2015, the Personnel Manager called and instructed him to be around that the Managing Director was coming to the site in Calabar for an inspection. CW1 Stated further that he went as instructed but on getting there, he met two of the company securities and while chatting as colleagues. Five men came out of a car parked at the gate, they placed him under arrest and took him with them. That on inquiring into the reason, he was informed that the Union Chairman came from Lagos to Calabar Police Division, Cross River State and made a report against him that he had plotted to kill his colleagues through diabolic means. Consequently, he was detained for four days at the Police Station. On the 5th day of his arrest, he was told that they are taking him for an investigation and after long hours of driving, they arrived at an uncompleted building at about 11:30pm. The investigating Police Officer (IPO) brought pictures and asked him to identify the people in it and he confirmed them as his colleagues. After the IPO has brought out the pictures, he saw the Union Chairman at his back; it was at this point the IPO brought out his pistol and threatened to kill him if he did not sign a document by ITB Management. He stated that he was only shown to him where to sign on the paper and when he asked that he should be allowed to read the entire document to know what he was signing, the IPO got very angry and screamed at him to sign immediately without questions while cocking his pistol and threatening to blow up his skull. That he signed the document not knowing its content or understanding its implication as he signed out of fear for his life as he had no other option. After signing the document, the IPO and Union Chairman took him back to the Police Station where he was released on bail the next day. In the course of being released he enquired about the content of the document he signed, he was told by the IPO that he has been paid off by the defendants and he should for no reason ever go near their premises or property anywhere. He stated that immediately he challenged the police officer on this position while denying I have been paid off by the defendant and insisting that he was still a staff of the defendant. According to CW1, the IPO further threatened to extend his detention while insisting that he should have been grateful for being alive and for my release instead of challenging for my employment. 5. Upon his release he made effort the next day to resume work at the Calabar Office where he was working but he was refused access by the security personnel without telling him why. That he kept going to resume work or to meet the Project Manager so as to ascertain what exactly is happening for over a long period but the security kept denying him access without saying why. He also made effort to meet the officers at the Lagos Office from where he was transferred to Calabar to complain but the security men still refused him access without telling him why. He stated that he has been refused entry to his place of work and the company has rebuffed all his attempts to resume work. CW1, stated that he has not been paid off in any manner by the Defendant neither has his employment been terminated. That no notice was given to him or paid any salary in lieu of notice by the Defendant. CW1, stated that he consulted his lawyers Tawo E. Tawo SAN & Co and they wrote exhibit CW1B1-2 to the Company challenging the legality of their action. According to CW1, there was no response to Exhibit CW1B1-2 from the defendant. CW1, stated that he has not been disengaged from the employment of the Defendant either by way of resignation, termination or dismissal and consequently entitled to all benefits and privileges accruable to him as a staff of the Defendant. That up till date, the Defendant has not disengaged him from work or pay him all his outstanding salaries and entitlements nor allow him access to his pension fund. CW1, continued with his testimony that since the commencement of his employment in the service of the Defendant, he has never been queried, disciplined or found liable for any misconduct or willful neglect in the discharge of his duties. That the salary of 30th day of April 2015 was the last salary he received from ITB NIG LTD till date. That his entitlement and salaries for the month of May 2015 up till date are still outstanding and yet to be paid by the Defendant. That his monthly salary, allowances and other entitlements amount to the sum of N98,099.00 (Ninety Eight Thousand Naira) only Monthly. That his total unpaid entitlement from the Defendant as at June, 2017 is standing currently at N2,648,673.00 (Two Million, Six Hundred and Forty Eight Thousand, and Six Hundred and Seventy Three Naira Only). That ever since he has been stopped from working and his financial benefits stopped, he has suffered psychological, social and economic hardship, inconvenience and embarrassment due to the action of the Defendant herein complained of. That the action of the Defendant complained of violates the terms of the contract of employment, staff handbook and Labour Law. That the Defendant had by their flagrant breach of the said Labour Law and terms and conditions of service, caused the Claimant to stay jobless and without pay for several years till date, the Claimant employment has not been duly determined yet the Defendant has continually denied the Claimant his salaries, allowances, fringe benefits and severance pay for all the years. CW1, stated that he engaged services of his counsel for the sum of N2.000.000.00 (Two Million Naira) of which he has paid an advance deposit of N500,000.00 (Five Hundred Thousand Naira), vide exhibit CW1A1. That it is the greatest interest of justice to grant the reliefs contained herein. CASE OF THE DEFENDANT 6. Mr. Idongesit Inyang, the Human Resource Manager of the defendant, testified on behalf of the defendant as DW1. DW1, stated that he knows the claimant in this suit. The Claimant was a former employee of the defendant. According to DW1, the claimant ceased to be employee of the defendant on 25/6/15 when his employment was terminated. DW1, stated that the defendant is a limited liability company with its head office at plot 1682, Sanusi Fafanwa Street, Victoria Island, Lagos, not in Abuja within the division of this court where the suit was instituted. According to DW1, the defendant was never formerly known as “Hitech Construction Company Limited”. The Defendant is a distinct legal entity from Hitech Construction Company limited, though they are sister companies. The Claimant was employed as heavy duty mechanic by Hitech Construction Limited on the 2nd Day of May, 2001 and was later seconded to the Defendant (ITB Nigeria Limited). He was a staff of the Defendant till he was disengaged on the 25th day of June, 2015. According to DW1, the Claimant did not receive any award for diligence from the Defendant. The award Certificate issued to the Claimant was a merit Certificate usually presented to long serving staff that have completed long years of service with the Defendant. The categories are usually ten (10) years and above. The Claimant received this award along with other staff that had served for Ten (10) years. It was the evidence of DW1 that the Claimant was transferred to Calabar, Cross River State on the 5th of November, 2013 to work on the Defendant’s project site in Calabar. He remained in Calabar till he was disengaged by the Defendant. It is untrue that all the colleagues of the Claimant were transferred back to Lagos leaving only the Claimant. The issue of posting/transfer of staff is at the discretion of the Management of the Defendant which has nothing to do with the Claimant. DW1 stated that the personnel Manager never called the Claimant nor gave him any instruction as alleged. This assertion is a product of fanciful imagination of the Claimant. The Defendant states that the Personnel Manager did not call and instruct the Claimant to be present on site that the Managing Director of the Defendant will be around as alleged, rather, there was a report by the Junior Staff Union Chairman of the Defendant (Lagos Chapter) to the Management of the Defendant that the (Union Chairman), Samuel Ogiri got a tip from a staff who works at the Defendant’s project site at Calabar stating that the Claimant had made clandestine plans and paid some money to a certain third party (witch doctor) to kill him and three other staff of the Defendant, namely; Ahmed Farran (Plant Manager), Abraham Ojikpang and Idongesit Inyang (HR Manager) using diabolical means. The Union was advised that since the nature of the allegation is a criminal one, same should be reported to be appropriate security agency being the police, to investigate and possibly unravel the truth. The matter as stated above was incidented by the Union with the Police in Calabar, and the Police, in performance of their statutory duty, arrested the Claimant. The persons mentioned by the Claimant in paragraph 9 of his Statement of Claim were the Policemen that were dispatched to arrest and investigate the matter. Upon the Claimant’s arrest, he was taken from Calabar to Uyo, Akwa-Ibom State to identify the third party (native doctor) whom he admitted to be in collusion with. The Claimant took the Police to the address of this third party whom the Claimant allegedly engaged and paid to kill the Union Chairman and three other staff. On getting to the address of the third party, the Claimant was identified by him and he cooperated with the police and brought out photographs of the Union Chairman and the three other staff stating that it was the Claimant that gave them to him since he does not know them in person in order to perfect their killing. The killing was to be done by diabolic means. The native doctor was arrested by the police and taken along with the Claimant back to their station in Calabar. The native doctor made statement and admitted all the allegations. The Defendant shall rely on the statement made by both the native doctor and the Claimant to the police. At the end of police investigation, the police found as a fact that the complaint of the Union Chairman against the Claimant is true, but the Divisional Police Officer (DPO) pleaded with the Defendant through the Union Chairman to have the matter resolved. The Claimant was granted bail and claimant wrote an undertaking to the police that he will not threaten the life of these staff and that he will be law abiding. The entire facts narrated by the Claimant in paragraph 8-21 of his Statement of Claim have nothing to do with the Defendant or the Claimant’s employment with the Defendant. Rather, it was a personal criminal allegation of threat to life levied against the Claimant by some of his colleagues who alleged that the claimant was nursing a plan to kill them diabolically. This fact being a criminal allegation was incidented to the Police who investigated same. It is known fact that the Claimant nurses some personal grievance with some staff. This is evidenced by his correspondence to the Defendant even recommending dismissal of some staff. This further made the Defendant not to take the allegation lightly but to refer it to the police for investigation. 7. In reply to paragraphs 22 and 23 of the Claimant’s Statement of claim, that the Claimant never resumed work at the Defendant’s site, this is because, the Claimant knew that his employment had been terminated since 25th of June, 2015 though he had refused to collect his termination letter. The Claimant eventually signed and collected his disengagement letter and his entitlements on the 7th of July, 2015. The Defendant shall rely on the acknowledged copies of theses letter. The Claimant eventually came to the Defendant on the 7th day of July, 2015 and collected his termination letter and his terminal entitlements. It is not correct that the IPO made him sign a document from the Defendant. What the Claimant signed to the police was the undertaking to be law abiding and not to threaten the life of other. 8. It was stated by DW1, that the true fact is that the Claimant’s employment was lawfully terminated and his entitlement was paid, including one month’s salary in lieu of notice. The Claimant signed and collected same. It was stated that the Defendant was surprised when the Claimant sometime in 2016 wrote to it through his lawyers, George Lekwa & Co. making frivolous claims and spurious allegations. This was contained in a letter dated 2nd February, 2016. The Defendant promptly debunked this false claim by the Claimant through her letter dated 25th February, 2016. The Claimant, not relenting in his vain claim, further engaged the firm of Tawo E, Tawo SAN & Co, who wrote to the Defendant on behalf of the claimant and made the same spurious claims. In fact, the letter dated 24th March, 2017 was amongst others self-contradictory. It was claimed in the fifth paragraph of the letter that the claimant was “unlawfully stopped from work” while the same letter in the seventh paragraph also claims that the “Claimant’s employment” still subsists. DW1 testified that based on the fact that the facts contained in the letter of the counsel for claimant are irrelevant and self-contradictory, the Defendant did not bother to dignify same with a further response, since the true position has been communicated to the Claimant in the letter dated 25th February, 2016 and which the Claimant knows that the facts in the said letter are true position. 9. The Defendant states that the facts stated by the Claimant in paragraph 33 of his Statement of claim are false. The Claimant was properly disengaged by the letter of termination dated 25th of June, 2015 which was received by the Claimants on the 7th of July, 2015. 10. It is the testimony of DW1, that the claim on pension is baseless because the Defendant is not the Pension Fund Custodian, one of the guidelines for accessing Pension Funds Contribution is that the contributor may access 25% of his contribution if he is out of employment for three (3) Months. The procedure of accessing one’s contribution from Pension Custodian starts with the contributor. The employee must first apply to the Pension Fund Custodian seeking to withdraw his 25%. It is after the Pension Fund custodian must have received the application that he will write to the employer seeking confirmation. The Defendant is yet to receive such letter from the Pension Fund Administrator. 11. It is the case of the Defendant that the averment in paragraph 35 of the Statement of claim is not true. The Claimant was paid his salary for May, 2015 alongside his other entitlements when he collected his terminal benefits on the 7th of July, 2015. The Defendant states categorically that the Claimant has no outstanding salary or entitlement with her as at the time of filing the suit by the Claimant or for any further period. The Claimants salary of May, 2015 was paid to his salary account being the usual mode while his terminal benefits were collected in cash by the claimant on the 7th of July, 2015. It was stated that the Claimant does not have outstanding unpaid entitlement in the sum of N2,648,673.00 with the Defendant as at June, 2017. This is because the Claimant ceased to be an employee of the Defendant from June, 2015. The Claimant admitted same in paragraph 39 of his Statement of claim. The Defendant states that the Claimant has not suffered any economic hardship, embarrassment, inconvenience and any form of loss. The Claimant does not have a contract to work with the Defendant for life. The Defendant is also not bound to retain the services of the Claimant at all time. The Defendant has not done anything to violate any terms of the contract of employment with the Claimant, staff handbook or labour law. The Claimant has not shown the so called terms and conditions of service allegedly breached by the Defendant. The Defendant properly and lawfully disengaged the Claimant. It is not the duty of the Defendant to seek another employment for the Claimant. It is entirely the decision of the Claimant to remain jobless if he so wishes. It is at the discretion of the Claimant to engage the services of counsel of his choice and pay his fees. This is of no concern to the Defendant. The counsel engaged works for the Claimant and it is the duty of the claimant to pay his counsel. This obligation cannot be shifted to the Defendant. The Defendant is not privy to the said negotiation and contract between the Claimant and his lawyer. The Defendant is not liable to pay the said N2 Million or any sum paid to the Claimant’s counsel. It was stated that the Claimant did not pay the said N500,000.00 to his counsel. 12. The Defendant states that the Claimant is not entitled to all the declaratory reliefs sought. THE CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE 13. The CW1 in his testimony in reply to the statement of defence stated that he is still a staff of the Defendant and that he is yet to be paid his salary since June, 2015. That there was no time he and any other person connived to kill any of his work colleagues and that there was no time he took any Policeman to the house or location of any witch doctor for any purpose whatsoever. There was no time he went with any Policeman to see or identify any witch doctor for any purpose whatsoever. That there was no time he in company of any person ever went to any witch doctor that later had to identify any picture or admit to any allegation of crime of any manner whatsoever and that there was no time any witch doctor was ever arrested in relation to him. That there was no time ever that any witch doctor made any confessional statement or admitted to any crime to any policeman at any police station in relation to any crime linked to me. He maintains that the undertaken he wrote to the police was under duress, force and threat to his life and that the police never investigated any allegation against him or any witch doctor in relation to him to warrant their finding if the allegation was true or not. He vehemently states that he never threatened the life of any of his colleagues at work. That there was no time any DPO pleaded for his release on bail in respect of this case. That he has no grievance with any of his work colleagues in any manner whatsoever and at any time. That he made several attempt to resume work with the defendant after the police incident but was prevent by securities at the gates. That he never collected any termination letter or terminal benefit from the defendant in any manner whatsoever. That he engaged the services of Barr. George Lekwa who wrote to the Respondent, but at the time he noticed that his actions/inactions was delaying justice towards his course. That he called Barr. George Lekwa for about eighths months requesting to know the outcome of the letter, but no reasonable answer was given to him. That he debriefed Barr. George Lekwa and engaged the legal services of Tawo E. Tawa SAN & Co. SUBMISSION OF THE DEFENDANT. 14. The counsel for the Defendant submitted sole issue for the consideration of this Honourable Court. 15. “Whether the Claimant has presented sufficient evidence before the court in proof of his case”. 16. P. O. Okoro, Esq; counsel for the Defendant, in oral adumbration informed the court that he is adopting the final written address of the Defendant as his argument in this suit. counsel went on to submit that the lone issue be resolved in the negative against the Claimant, as the Claimant has woefully failed to prove his allegation that his employment was not terminated and that his entitlement was not paid to him. He also failed to establish how his employment with the Defendant still subsists and/or how the actions of the Defendant amounted to a breach of his contract of employment and Labour Law. The entire gamut of the Claimant’s Statement of Facts and reply is replete with allegation that his employment was not terminated and that he was prevented severally by the Defendant from resuming his duty and on the other hand, that his employment contract was breached. The law is settled that in civil cases, the burden of proof lies on the party that alleges or who asserts. That is, the burden of proof lies on the party who will fail if no evidence at all were given on the other side. On this submission counsel for the defendant relied on the case of Ahmed v. Abu & Anor. (2016) LPELR – 40261. Owie vs. Solomon Igwi (2005) NWLR (Pt. 917)18; Nwara & Ors. V Chief Okoye (2008) 18 NWLR (Pt.111) 29 SC”. Counsel also cited Section 131(1) and (2) of the Evidence Act. 17. Counsel queried, what evidence did the Claimant place before the court to prove that his employment with the Claimant still subsists or that his contract of employment was breached? The Claimant did not even tender his letter of employment to ascertain the condition that was breached. It must be noted that from the letter of confirmation tendered by the Claimant, his original employer was Hitech Construction Company Limited, not the Defendant. However, the Defendant admitted that being a Sister Company, the Defendant was seconded to it and he remained her staff till the 25th day of June, 2015, when his employment was terminated. 18. The Claimant in purporting to prove his case adopted two Statements on Oath dated 4th December, 2017 having withdrawn the one dated 20th July, 2017. Unfortunately, the Claimant himself under the fire power of cross examination succumbed to the supremacy of truth and told the court that he has no evidence to support his case. The Claimant did that by repudiating his own Statements on oath. 19. It is our submission that the success of the Claimant in this case depends on the quality of evidence presented in proof of his case. Where the Claimant’s case is found to be bereft of evidence or where the evidence so presented has been discredited, the case automatically fails. 20. As earlier mentioned, the Claimant testified for himself on the 17th of December, 2017 by adopting his two witness Statements on Oath. These witness Statements on oath when adopted becomes the oral testimony of the witness. Before a Statement qualifies as an Affidavit or witness Statement to be adopted in court, there are mandatory legal requirements it must satisfy. One of such requirements is that the deponent or witness, as the case may be, must depose to it before a Commissioner for Oaths or any other person authorized by law to administer Oath. In support of this contention counsel relied on Section 13 of the Oaths Act which provides that: “It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before her in the form set out in the first schedule.” 21. To the same effect, are of the provisions of Section 117(4) of the Evidence Act which states that: “An Affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of that person before whom it shall be taken.” 22. It is the counsel submission that any statement made on Oath or an Affidavit as the case may be, not sworn by signing same before the Commissioner for Oaths or an authorized Officer is rendered inadmissible under Section 112 of the Evidence Act which captured it as follows: "An Affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner or before a partner or clerk of his legal practitioner." 23. Counsel contended that the Claimant himself under cross-examination did not deny the truth when he confessed that" he did not sign the Affidavit himself but authorized his lawyer to sign for him." The Claimant by his own confession has rebutted the legal resumption of his own Statement on Oath. By the combined reading of Sections 112 and 117(4) of the Evidence Act such Statement on Oath is inadmissible, it should be discountenanced. This position of the law was endorsed by the Court of Appeal in Chidubem v kenna & 12 Ors. (2008) LPELR - 3919 at page 16, D - E in the following words: "The requirement of the law is that depositions on oath must be signed in the presence of the person authorized to administer oaths." 24. His Lordship, Kekere-Ekun, JCA (As he then was) went further to point out at page 15, A- B that: "Where there is evidence that the depositions were not sworn before a person8 duly authorized to administer oath, such deposition would be defective". 25. It is the contention of counsel that without mincing words, the Court of Appeal in Chidubem v. Ekenwa (supra) at page 37 concluded on the effect of such a deposition not signed in the presence of the Commissioner for Oaths. "The Law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths. The witnesses by their own showing have rebutted the legal presumption of their written depositions. I shall also hold that the lower tribunal was perfectly correct when it discountenanced the written depositions of these witnesses for non-compliance with Section 90(f) of the Evidence Act and paragraph 1(1) (b) of the Practice Director 2007". 26. Counsel contended that it is on record that the evidence of the Claimant under cross-examination completely rebutted the presumption in favour of his witness Statement on Oath. The Claimant unambiguously proclaimed that he "authorized his lawyer to sign same for him". This made the Statement on Oath more worthless because it was not signed by the Claimant let alone before a Commissioner for Oaths. 27. Counsel contended that the resultant effect of non-signing of witness statement on oath is that the Claimant's case is bereft of evidence and the suit is liable to be dismissed without much ado. There is no evidence before the court to sustain the claim of the Claimant. We urge the court to so hold. 28. It is important to mention that despite the glaring and unambiguous testimony of the Claimant repudiating his Statement on Oath, his counsel vehemently under reexamination sought to put words into the mouth of the Claimant to suggest that he did not understand the question put to him under cross-examination. Counsel having suggested otherwise to the Claimant, the Claimant made a summersault and claimed that the said signature was signed by him. The Claimant even mimicked almost correctly the signature on the Statement on Oath and same was tendered in evidence. 29. But the immutability of truth still stood out when the Claimant under further cross-examination confessed that he signed the Statement on Oath in his lawyer's office. When he was asked where his lawyer's office is, he truthfully said "I don't know my lawyer's office". Nothing can be more truthful than this. 30. By this further confession, the argument 8.8 where the Statement on Oath was signed has been put to rest. The only thing the court may consider based on the fact that there are various signatures purporting to be of the Claimant before the court is to determine whether the Claimant actually signed the Statement on Oath in the first place. 31. A careful perusal of the Statement on Oath dated 20th July, 2017 which accompanied the Statement of Facts will show that it is completely different from the one dated 4th December, 2017 adopted by the Claimant. Also the signature in the attachment to Exhibit C7 which shows when the Claimant signed and collected his entitlement on the 7th of July, 2017 is a different signature. The Claimant did not impeach the latter signature under cross-examination. 32. Counsel posited that it is settled law that when signature of a witness is in issue, the court has the power to compare signatures before it and come to the proper conclusion. On this submission reliance was placed on the case of Queen v. Wilcox (1961) NSCC, 274, 276. Counsel contended that it is apparent before the court that the signature belonging to the Claimant is the one in Exhibit C7; the Claimant was tutored to mimic the one in the Statement on Oath he adopted. Thank God he was quick to confess to the truth that he does not even know his lawyer's office where he claimed to have signed same. The Supreme Court in the case of Ndoma-Egba v. A.C.B Plc (2005) 14 NWLR (pt.944) 105-106 para. E - B. Per Oguntade, JSC affirmed the position of the law that the court can form an opinion by undertaking comparism of signatures before it which purports to belong to a party. The court held at pages 105- 106, E-B as follows: "It is not unusual for the courts to form their own opinion as to handwriting and in R V. Smith, 3 Cr. App. R.87 as well as in Rev. V. Rickard, upon which Mr. David relies, the court of criminal Appeal in England formed its own opinion by comparing the handwriting. So did the West African Court of Appeal in R v Apena, 13 W.A.C.A 173. In the present case, the dissimilarities between the signatures on the cheque and the genuine signatures of Nwobu are apparent to the naked eye and, in our view, the course pursued by the learned judge was not improper in the circumstances. "See Section 101 of the Evidence Act.’’ 33. It is the view of counsel that what can only be made out from the evidence of the Claimant is that there exist a contradiction on a serious material fact, since his signature on the Statement on Oath is material evidence required to give validity to his evidence. The law is settled that where there is a conflict or contradiction in the material facts of a witness, the court cannot pick and choose, but rather, the court will discountenance such evidence. To support this contention counsel relied on the case of Abatan v. Awudu (2004) 17 NWLR (Pt. 902) 430 at 44, counsel urged the court to uphold his submission and discountenance the evidence of the Claimant. Counsel further relied Anambra State Govt. vs Gemex Limited (2011) LPELR- 19733. 34. On the other hand, counsel argued that even if the court is minded to hold otherwise and decide to consider the evidence of the Claimant for whatever it is worth, it is contended that the Claimant has not discharged the onus of proof placed on him by the law in this case. Counsel posited that without wading into irrelevant facts pleaded, the main issue is whether the Defendant had disengaged the Claimant and paid him his entitlements. 35. Counsel contended that though the Claimant denied receiving his terminal benefits. The Defendant on the other hand established her evidence by Exhibit C7 that the Claimant signed and collected his entitlement on the 7th of July, 2015 and the Claimant did not cross-examine the witness of the Defendant on Exhibit C7. The law is settled that failure to cross-examine or discredit a material fact is deemed admitted. To support this contention reliance was placed on the cases of Esene v. State (2017) LPELR- 41912 (SC), Amadi v. Nwosu (1992) 5 NWLR(Pt. 241) 273 at 248 where the court held: "Where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness's testimony as true, cross-examine him on the fact, or at least show that he does not accept the evidence as true. Where he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact. 36. Furthermore, the Claimant did not respond to the Defendant's letter dated 25th February, 2016 where his issue of termination and his entitlement was graphically settled. The law is trite that failure to respond in such circumstance raises an irrebutable presumption of admission. The Court of Appeal in the case of Zenon Oil and Gas v. Idrisiyya (2006) All FWLR (Pt.312) 247-248, F-D) copiously clarified the above principle when it held as follows; "As to the Appeal, the trial court proceeded on two tangents to find for the Respondent. Firstly, there are inferences the court drew from Exhibit C, D, E, F and G. Exhibits E in particular is a letter written by Respondent's solicitors to the Appellant's solicitors and copied the Appellant, forwarding the payment of N750,000 due to the Appellant and demanding the release of the Respondent's trailer. Exhibit G is also a letter from the Respondent's solicitors to the Appellant's solicitors informing the latter that the Respondents trailers were released on the 29/11/99 at 6:30pm. The letter is dated 30/11/99. The point was made in oral evidence given by PW2 and PW3 that Appellant deliberately chose not to respond to the content of the Exhibit E which alleged that the Appellant had detained the Respondent's trailers. The Appellant's quarrel is that the trial court is not entitled to draw inference it did from the Appellant's silence over the allegations levied against it in Exhibit E. Appellant cannot be right. The passage cited from the decision in Wiedman V. Walpole (1891) 2 QB 534 and for that purpose reproduced. "There are certain letters written business matters and received by one of the parties to the litigation before the court, the not answering of which has been taken as very strong evidence that the person receiving the letter admitted the truth of what was stated in it.’’ 37. The same court went ahead to renew the position of the Nigerian Courts on the Issue holding that the concurrence of the Nigerian Courts to the principle enunciated above is quite notorious and beyond gainsaying. According to the Court: "Again in Gwani v. Ebule (Supra) which the Respondents cited and relied on, this court held that silence in the circumstances in which a reply is obviously expected raises an irrebutable presumption of admission by conduct ... "We respectfully refer the court to the case of Gwani v. Ebule (1990)5 NWLR(Pt149) 201, cited with approval and followed by the Court of Appeal in the above case. 38. Counsel while placing reliance on the foregoing decisions, urged the court to uphold the defendant’s submission and dismiss the case of the Claimant for want of evidence. The only evidence that stands tall before the court is that of the Defendant. It remains unchallenged, uncontroverted and more reliable. Counsel urged the court to so hold. 39. In concluding his submission counsel urged the court to dismiss the claimant’s claim for being frivolous. SUBMISSION OF THE CLAIMANT 40. Whether the Claimant has proved his case, thereby entitling him to the judgment of this court’. 41. Counsel contended that from the reliefs sought, the main plank of the claimant’s case is that he is still in the employment and service of the defendant and that he is entitled to salaries and other benefits. The burden therefore is on the claimant to proof that he has an employment relationship with the defendant for which he is entitled to salary and other benefits. 42. It is submitted the burden of proof is two-fold. The first is the ability of a claimant to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the claimant. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case. The second one is called evidential burden. On this submission counsel relied on the cases of FEDERAL MORTGAGE FINANCE LTD V EKPO (2004) 2 NWLR (Pt.854) 100, OGULE ANKPO AGOTU CO. OPERATIVE GROUP FARMING SOCIETY V NIGERIA AGRICULTURAL AND CO-OPERATIVE BANK (1999) 2 NWLR (Pt.590) 234. 43. It is the contention of counsel that in civil cases proof is based on balance of probabilities and it rests on the party who asserts the affirmative. In this instant case, the onus is on the defendant to establish how and when the claimant’s employment was terminated or why the claimant’s should not be paid his salaries. DOOUD V NNPC (1998) 2 NWLR (Pt.538) 355, LEWIS & PEAT (NRI) LTD V AKHIMIEN (1976) 7 SC 157, MAGAJI V ODOFIN (1978) 4 SC 91, ELIAS V OMOBORE (1982) 5 SC 25. Counsel submitted that the defendant has failed to lay anything before the court to show that the claimant was in any way on notice that his employment was being terminated how then can the issue of a severance pay arise. 44. Counsel contended that the burden of proving claimant’s employment to salary does not arise as these facts have been admitted by the defendant already at paragraph 1 and 4(a) of the statement of defence. The law is well settled that facts admitted need not to be proved. To support this contention counsel relied on the case of NWANKWOKOH & ANOR. (2004) 13 NWLR (pr.890) 287. It is submitted the burden of proving the subsistence of employment is on the defendant whom he has failed to discharge. 45. It is the contention of counsel that the evidence of DW1 on all what transpired between the claimant and some other union members are all hearsay as the defendant and DW1 are not members of the union neither were they at Calabar in the course of the alleged incidents that lead to the claimant being arrested and taken to the police station. This is because according to the statement of defence and witness statement on oath paragraph 4(j) all that transpired between claimant and his colleague that led to the arrest of the claimant were all personal criminal allegation of threat to life levelled against the claimant by some ,embers of his colleague. More so DW1 stated that he came to serve termination letter on claimant and paid him terminal benefit. 46. The claimant denied receipt of termination letter or terminal benefit. He denied exhibit DWB1-2, to support this contention counsel relied on the case of ANPP & ANOR. V ARGUNGUN & ORS. (2009) 17 NWLR (Pt.1171) 445 and urged the court to look at the document in its file while writing judgment or ruling even if such document was not tendered and admitted as an exhibit at the trial. Counsel urged the court to look at the Access Bank statement of account which was attached to statement of defence but was not tendered at the trial. 47. It is contended that from the attached statement of account, the salary of the claimant for the month of May was paid on the 28/5/15 and on the 7/7/15, as claimed by the defendant. It is submitted from the statement of account the claimant did not receive any money from the defendant on the 7/7/15. Counsel argued that though the claimant worked for the defendant till about June ending the defendant has not paid him salary for the Month of June or July as a Month salary in lieu of notice. 48. It is submitted that the failure of the defendant to tender the frontloaded statement of account has raised presumption in law is that the evidence if produced would be unfavourable to the person withholding the document. Section 149(d) of Evidence Act, W. A. C. C. LTD V CAROLINE POULTRY FARM LTD (2000) 2 NWLR (Pt.644) 197. 49. Counsel also contended that the claimant denied signing exhibit DW1B1-2, it is submitted the message on the exhibit that read ‘cash received by me’ is against the pleadings and evidence of the defendant where the defendant alluded that the claimant collected his May salary through bank, counsel urged court not to give any evidential burden to exhibit DW1B1-2 and his terminal benefits in cash. 50. It is contended on the face of exhibit DW1B2 the amount involved is the sum of N285,651 comprising of the current salary and benefits which the defendant seem to have been arguing that the claimant received in cash though the pleading and evidence of the defendant is to the effect that salaries were not paid in cash aside terminal benefit. The document in issue is even for the Month of June salary and not May as alluded to by the defendant. Counsel urged court not to give probative value to exhibit DW1B1-2. 51. It is submitted that the claimant maintained during cross-examination that he signed his witness statement on oath himself before this court though the defendant has continued to argue to the contrary. On this contention reliance was placed on the case of THE VESSEL OF MV NAVAL GENT & ORS. V ASSOCIATED COMMODITY INT’L LTD (2015) LPELR-25973(CA). Counsel also argued that the defendant’s argument on signature is rather too late in the day. On this point reliance was placed on the case of ATTUCHUKWU V ADINDU (2011) LPELR3821(CA). 52. It is the contention of counsel that even if the claimant’s witness statement on oath was not signed before the Commissioner for Oath such is not fatal to the evidence of the claimant. In support of this argument counsel relied on the case of UDEAGHA V OMEGARA (2010) 11 NWLR (Pt.1204) 168. It is argued this case represents the current law having been decided in 2010 and not CHIDUBEM V EKENNA decided in year 2009. The claimant further relied on the case of UDUMA V ARONSI (2012) (Pt.1298) 55. Counsel urged the court to discountenance the submission of the defendant on this issue. 53. Counsel also submitted that address of counsel is not a forum to start pleading facts or presenting evidence as the defendant attempted to do when they were arguing termination of employment in their final address which was never on issue before the court during trial. The address of counsel is no more than a handmaid in adjudication and cannot take the place of the hard facts required to constitute credible evidence. No amount of brilliance in a final address can make for the lack of evidence to prove and establish or to disprove and demolish points in issue. MICHIKA LG V NATIONAL POPULATON COMMISSION (1998) 11 NWLR (Pt.573) 201. 54. In concluding his argument counsel urged the court to discountenance the submission of the defendant and enter judgment in favour of the claimant. REPLY ON POINTS OF LAW 55. The Claimant argued from paragraph 4. 1 to 4. 10 that the evidential burden of proving that the Claimant's employment has been terminated rests on the Defendant who alleges same. He relied on the cases of Federal Mortgage Finance Ltd. V. Ekpo (2004) 2 NWLR (Pt.856) 100 of 122; OguleAnkpaAgatu Co-operative Group Farming Co-operative Bank (1999) 2 NWLR (Pt.590)324 on the principle and further submitted that the Defendant was unable to prove its claim that the Claimant's employment has been terminated. Counsel for the defendant agree entirely with the principle of law cited by the Claimant. This represents the true position of the law. But, it was argued that the Claimant misapplied this principle to the bare facts and evidence before the court. Contrary to argument of the Claimant, the Claimant in proof of its case tendered Exhibit C7 which is a document showing that the Claimant signed and collected his entitlement on the 7th of July, 2015. We will not allow the Claimant to lure us into regurgitating our argument well canvassed in the Final Written Address. That document was not impugned by the Claimant; it stands to establish the truth of this case. 56. Counsel contended, it appears from the argument of the Claimant that the Claimant has a different understanding of what proof means. The Claimant thought that bare denial that he never collected his entitlement or termination letter suffices to presume that the Claimant's employment was not terminated. The Defendant proved her case by tendering exhibit DW1B1-2 (or B7). This conclusively shows that the Claimant's employment was terminated and he collected his entitlement on the 7th of July, 2015. 57. In trying to justify the manifest inconsistencies in the signature of the Claimant before the court, being a material fact, the Claimant maintained that he signed the Witness Statement himself and that same was signed before this Honourable Court. The Claimant cited the case of Atuchukwu v. Adindu (2011) LPELR - 3821 and Udegha v. Omeghara (2010) 11 NWLR (Pt. 1204)168 in support of his case. 58. With the greatest respect, it is contended that the Claimant misconstrued and misapplied these authorities. First, the case of Atuchukwu (supra) has no relationship or bearing with the case of the Claimant. What was in issue in the Claimant's case is whether he was the one that deposed to his statement on oath or he authorized someone to do it for him. That is, whether the signature purporting to depose to the Witness Statement on Oath is that of the Claimant. It was not whether the Claimant signed a document In a different name as In Atuchukwu’s case. Also the defendant unlike in Atuchukwu’s case the opportunity to cross examine the claimant on the signature he signed before the court and the claimant contradicted himself by saying that he does not know his lawyer’s office. The case of Attuchukwu does not apply to the claimant’s case. 59. Secondly, the case of Udeagha (supra) is also distinguishable from the Claimant's case. In Udeagha's case, the counsel to the Respondent was more concerned with where (venue) the witnesses signed the Statement on Oath. This is not the case with the Claimant. From the outset the Defendant through her counsel set out to show that the Statement on Oath was not deposed to by the Claimant not just that he did not deposed to it before the Commissioner of Oath. The Claimant first stated truthfully that he authorized his lawyer to sign for him. The argument of the Claimant in paragraph 3.38 of his argument to the effect that even if his Statement on Oath was not signed before the Commissioner for Oaths, it was not fatal to his case is to say the least laughable. It seems the Claimant does not understand the contention of the Defendant that the Claimant's Statement on Oath was not deposed to by the Claimant. 60. Counsel further refers the court to Exhibit CW1A, the receipt from the law firm of Tawo E Taiwo& Co. which the Claimant tendered to prove his alleged payment of N500,000.00 as part payment of his counsel's fees. The column that states "customer's signature" bears what purports to be the Claimant's signature. Also, Exhibit CW1B1, the letter dated 24th March, 2017 also bears the same signature with Exhibit CW1A. But it is shocking that in the letter dated 24th March, the said signature was signed by one Rita Aidelebe, a counsel in the Law Firm of Tawo E. Tawo& Co. counsel to the Claimant. 61. Another shocking revelation from the records of the court is when the court also compares these signatures referred to above, they are consistent with the Claimant's signature in the pre-action counseling certificate attached to the originating process, dated 18th July 2017. This also, it is submitted is contained with the initial statement of the oath of the claimant dated 20th day of July 2017. When juxtaposed with the statement on oath dated 4th December 2017 adopted by the claimant, it is clear from the records of the court that the claimant was telling the truth when he said that he authorized his lawyer because he had authorized them to sign on his behalf. The law is settled beyond argument that this Honourable court has the power to compare signature or writing when they are in dispute in order to arrive at the truth. In Yongo v. COP (1992) NWLR (Pt.257) 57 B - D, the Apex Court held as follows: "No wonder he did not say who wrote or signed it. I think although the law permits trial courts to compare writings and or signatures in order to discover their authors, this only arises in a case where the writings and/or signatures are in dispute and therefore in issue. In such cases, proven, proven or acknowledged writings or signatures of the disputants must be before the court. See Zakiah v. Board of Customs & Excise (1966) NMLR 293." 62. Also, in Ndoma-Egba v. ACB Plc (2005) 14 NWLR (Pt.944) 105-106, the Court of Appeal has this to say, relying on the Supreme Court case of Wilcox v. Queen (1961) 2 SCNLR 296. ‘’It is not unusual for the courts in a clear case to form their own opinion as to handwriting and in R. Vs Smith, 3 Cr. App. R. & 7 as we II as Rex v. Rikard, upon which Mr. David re lies, the Court of Criminal Appeal in England formed its own opinion by comparing the handwriting alleged to be that of the Appellant with a genuine specimen of his handwriting. So also did the West Africa Court of Appeal in R. V. Apena 13 WACA, 193. In the present case, the dissimilarities between the signatures on the cheque and the genuine signature of Nwobu are apparent to the naked eyes and in our view, the course pursued by the learned judge was not improper in the circumstances.’’ 63. It is submitted that by comparing these various signatures before the court, it is apparent to the naked eye that the Claimant did not sign his signature in any of the processes filed by his counsel. By that the Claimant's case is bereft of evidence. 64. Counsel agreed with the submission of the Claimant and the case of NPP v. Argungu cited to the effect that this court, in order to do justice is entitled to look at a document in its file while writing judgment even if such document was not tendered and admitted as exhibit. This is the law and we equally adopt same in urging the court to look at the documents in her record for the just determination of this case. 65. The first document we want to call the attention of the court to look at is the Claimant's Motion on Notice dated 24th November, 2017. The said motion was moved and granted on the 7th Day of December, 2017. The motion is supported by a 10 paragraph Affidavit deposed to by Obinna E. Omeh, a counsel in the Law Firm of Tawo E. Tawo & Co, counsel to the Claimant. A closer look at the Affidavit will show that the deponent, Obinna Omeh, is the same counsel that settled the claimant’s final written address. However, it is interesting to see that the signatures on both processes are not the same, though purporting to be signed by the same person. It is contended that with this pieces of evidence before the court, it will pose no difficulty for the court to conclude that the claimant’s counsel are no strangers in signing signatures for another. The claimant was on the path of truth when he said so under oath. 66. It is submitted that the Defendant has proved its case that the Claimant's employment was terminated and he collected his entitlements while the case of the Claimant greatly suffers lack of evidence as argued above. Counsel urged this court to uphold the submission of the defendant and dismiss the claimant’s case with substantial costs. 67. DEFENDANT’S SUBMISSION ON NON-SUIT. DEFENDANT’S SUBMISSION ON NON-SUIT. 68. In arguing the issue of non-suit counsel for the defendant contended that whether the order of non-suit is appropriate in the circumstance is based on the evidence before the court. 69. Counsel conceded that in appropriate cases, the court has the discretion to non-suit a party in a suit instead of making an order of dismissal. However, such discretion is not exercised at large, it must be exercised judicially and judiciously. On this contention counsel relied on the cases of IBIYEMI V FBN PLC (2003) 17 NWLR (PT.848) 196, OHAZULIKE V IWEOKU & ANOR. (2019) LPELR 1324. It is settled that for non-suit it must appear on the record of the case taken as a whole that the plaintiff has not failed in toto; and that the defendant would not be entitled to the judgment of the court. 70. Counsel contended that order of non-suit is not just gifted to the plaintiff as a matter of course; it must be predicated on the evidence before the court. This is because at all times, it is the duty of he who asserts in most cases, the claimant to prove his case. On this submission reliance was placed on the case of AHMED V AU & ANOR (2016_) LPELR-40261. Section 131 of the Evidence Act. 71. It is the contention if counsel that based on the evidence before the court, the claimant’s case is bereft of evidence and this case deserves to be dismissed. Counsel contended that there is no evidence before the court. The claimant clearly stated on record that he did not depose to his witness statement on oath himself. That he authorized his lawyer to depose to same on his behalf. Even when his lawyer tried to put words in the mouth of the claimant, the claimant summersaulted in his evidence by stating that he signed the witness statement on oath in his lawyer’s office. The same claimant under cross-examination told the court that he does not know where his lawyer’s office is. 72. The defendant’s reply also brought to the notice of the court some material facts in the record of the court showing that there are multiple signatures purporting to be that of the claimant and that of his lawyer which goes to justify that signing documents on behalf of another is a regular practice with the claimant’s counsel. As earlier argued in the defendant’s final written address this is a material contradiction which goes to invalidate the purported evidence of the claimant. The resultant effect is that the claimant has failed to present evidence in proof of his case and his case is liable to be dismissed. On this contention counsel relied on the case of MTN V MUNDARA VENTURES NIGERIA LTD (2016) LPELR-40343. 73. It is the contention of counsel that even on the merit of the claimant’s evidence, the claimant has not proved his entitlement to the reliefs sought. First the claimant urged the court to declare that his terms of employment was breached by the action of the defendant in keeping him away from the defendant’s workplace without paying him and without terminating his employment. Counsel submitted that the claimant has not placed before the court the said condition or terms that was allegedly breached. The law is settled that a party claiming that the terms of his employment was breached has the duty to place such terms allegedly breached before the court. This the claimant failed to do. On this contention reliance was placed on the case of DAMA V SPDC (2005) 17 NWLR (Pt.954) 364. 74. It is the submission of counsel that there is no such breach alleged that was presented to the court by the claimant. The claimant also failed in his bid to claim that his employment was not terminated. The defendant tendered exhibit C7 to show that the claimant’s employment was terminated on the 25/6/2015 and he collected his entitlement on the 7/7/2015 this put paid to the inordinate ambition of the claimant in claiming what he is not entitled to. In the same vein the claimant did not prove how he arrived at the sum of N2,648,673.00 he claimed as representing his salaries and other fringe benefits. This claim is a specific claim akin to special damages. To success on this claim, the claimant has the duty to particularize and prove his claim. The claimant failed woefully in this regard, contrary to settled position of the law in BADMUS V ABEGUNDE 1999 71 LRCN, 2912, where the Supreme Court held that special damages have to be strictly proved. In further support the case of HCP NIGERIA LIMITED V BAZZA 2004 3 NWLRR PT.861 607. 75. It is the contention of counsel that from the totality of the evidence adduced before the court the case of the claimant is not only feeble, weak, incoherent and contradictory. There was no cogent evidence in support of the claims of the claimant. This is not a case deserving an order of non-suit. Counsel contended that the guideline of consideration of non-suit is provided in the case of THE REGISTERED TRUSTEES OF ONITSHA PRINTING PAPER DEALERS ASSOCIATION V ADENUGA & ANOR. 2017 LPELR-422200. 76. In concluding his submission counsel urged the court to hold that the claimant has failed to prove his case and order dismissal. COURT’S DECISION 77. I have carefully considered the processes filed in this suit by both parties as well as the written and oral submissions of counsel. 78. While writing the judgment in this suit, the issue of non-suit agitated my mind. In the circumstance, counsel for both parties were ordered to file written addresses on issue of non-suit. The counsel for the claimant failed to comply with the order of the court on filing of written address on issue of non-suit. The counsel for the Defendant complied with the directive of the court and filed his written address on non-suit on 6/2/19. 79. I am inclined to agree with the counsel for the defendant that non-suit is a discretionary doctrine that court is empowered to consider and grant in deserving cases where the Claimants and the Defendant could not win after appraisal of the evidence brought before the Court. 80. Order of non-suit is a discretionary order that must not be granted as a matter of course. As aptly stated by the Apex Court in UGBODUME V ABIEGBE & ORS (1991) 8 NWLR (Pt. 209) 261, the order of non-suit has since ceased to be a technical procedure it used to be. It is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case did not tilt in favour of either side, the Court can say that no side is entitled to win. The Court must therefore be satisfied that the circumstances of the particular case deserve such an order. See CHIKERE V OKEGBE (2000) 12 NWLR (Pt 681) 274, ODI & ORS V IYALA & ORS (2004) 8 NWLR (Pt 875) 283. An order of non-suit is that order which terminates the plaintiff's case without a decision or pronouncement on its merits or which did not adjudicate all relevant issues on merit. See CRAIG V CRAIG (1967) NWLR 52, OLUFOSOYE & ORS V OLORUNFEMI (1989) 1 NWLR (Pt 95) 26, it is an order which inevitably mean giving a plaintiff a second chance to prove his case. It is therefore imperative for the Court to consider whether the grant of an order of non-suit would, in the circumstance be wronging the defendant on one hand and on the other hand, whether the dismissal of the case would be wronging the plaintiff. 81. The test for determining when an order of dismissal or non-suit should be made is as laid down by the apex Court in EJIOFOR V ONYEKWE & ORS (1972) 1 ALL NLR (Pt 2) 527 as follows: - "..... if the plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to technical hitch, ...... and the defendants not being entitled to the judgment of the Court, the interest of justice demands that such a party should not forever be shut out from representing his case." 82. By concordant decisions of the apex Court including the cases of CRAIG V CRAIG (Supra) and EGBUCHU V CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR - 40053 (SC) Per Kekere-Ekun JSC at page 12 paras B - E the circumstances when an order of non-suit would be made are:- "a. where the plaintiff has not failed in toto or entirely to prove his case; b. where the defendant is not in any event entitled to the Court's judgment; and c. where no wrong or injustice to the defendant would be caused by such order." 83. Flowing from the above conditions, it is now undoubtedly settled that a plaintiff who has failed in toto to prove his case is not entitled to an order of non-suit. Where in a trial of an action evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order to make is that of a dismissal. An order of a non-suit would be inappropriate in such a circumstance. See EGONU V EGONU (1978) 11 - 12 SC 111, OYEYIOLA V ADEOTI (1973) 1 NWLR 103, KODILINYE V ODU (1935) 2 WACA 336, GOLD V OSASEREN (1970) 1 ANLRP 129, OKOYE V NIG CONSTRUCTION FURNITURE CO LTD (1991) 116 NWLR (Pt 199) 501, CRAIG V CRAIG (Supra), OSUJI V EKEOCHA (2009) ALL FWLR (Prt 490) 626, 662 paras E - G. The grant of such an order is discretionary and it depends on the facts & circumstances of the each case and what will meet the justice of the case. Even then, the parties or their counsel must be heard on the matter. EGBUCHU V CONTINENTAL MERCHANT BANK PLC & ORS (Supra)." Per WAMBAI, J.C.A. (Pp. 23-27, Paras. A-B) 84. I should also emphasize the law that an order of non-suit should not be made merely for the purpose of giving the plaintiff a second bite at the cherry to enable him prove what he was previously unable to prove. See MANDILAS & KARABERIES V ORIDOTA (1972) LPELR 1836 (SC), ILODIBIA V NIG CEMENT CO. LTD (1997) LPELR - 1494 (SC). In the instant case, it is in line with the above principle that the evidence of both parties will be reviewed to see whether an order on non-suit can be made. 85. The Defendant seems to maintain both in the final written address and the address on non-suit, that this is not a proper case where an order of non-suit can be made. According to counsel for the Defendant the claimant has woefully failed to prove his case by preponderance of evidence. The claimant on his part maintains his position as canvassed in his final written address. 86. I shall observe that the counsel for the defendant in his written address failed to adhere to the numbering of exhibits tendered before the court. Counsel decided to refer to exhibits with his own numbering. If counsel was not sure of the court numbering he should have conduct of the court record to ascertain the actual numbering. In this judgment the numbering assigned to the exhibits when they were tendered and admitted n evidence will be followed. 87. The Claimant vide his complaint and statement of facts is praying for declaration that keeping him away from duty indefinitely from July 2015 till date without paying him any amount whatsoever and without due determination of his contract of employment is wrongful, illegal and a gross violation of terms and conditions of his employment. He is also praying for declaration that he is still a staff of the defendant and therefore entitled to all benefits until his employment with the defendant is properly determined in accordance with contact of employment and/or extant labour law. A declaration that the action of the defendant in stopping the claimant from work and stopping his salary payments unduly had caused the claimant serious untold mental, physical, psychological and social inconvenience, hardship and embarrassment. The claimant is also praying for an order directing the defendant to pay the claimant all his salaries and other fringe benefits from May 2015, which currently stands at the sum of N2,648,673.00 as at June 2017 until his employment with the defendant is properly determined. He is also claimant for N2,000,000.00 cost of litigation. 88. Reliefs 1, 2 and 3 of the claim of the Claimant against the Defendant are for declaratory in nature and relief 4 being monetary claims for salaries allowances and cost of litigation are for special damages. 89. The law has been well settled by a long line of decided cases that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the Claimant or party seeking the declaratory reliefs. A declaratory relief will be granted where the Claimant is entitled to the relief in the fullest meaning of the word. The Claimant must plead and prove his claim for a declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. See ANYORU V MANDELA LTD (2007) 4 SCNJ 28; CHUKWUMAH V SPDC (Nig.) Ltd (1993) LPELR 864 SC, MATARI & ORS V DADA & ANOR (2013) LPELR 19929 SC and AKINBONI & ORS V AKINTOPE & ORS (2016) LPELR 40184 CA page 25 26 . 90. I shall now deal with the preliminary issues of competency of the witness statement on oath of the claimant, raised by the defendant, which the claimant adopted as his evidence in this suit during his evidence in chief. 91. The counsel for the defendant has forcefully argued that the claimant’s two witness statement on oath filed on 4/12/17 are incompetently before the court for not having been sworn by signing same before the commissioner for oaths or an authorized officer. They are inadmissible under section 112 of the Evidence Act. Counsel contended that this is glaringly clear when under cross-examination; the claimant confessed that he did not sign the witness statement on oath himself but authorized his lawyer to sign for him. Counsel argued that by combined reading of section 112 and 117(4) of the Evidence Act, such statement on oath is inadmissible and should be discountenanced. To support his contention counsel placed reliance on the case of CHIDUBEM V EKENNA 7 12 ORS (2008) LPELR-3919, where it was held that the requirement of the law is that deposition on oath must be signed in the presence of the person authorized to administer oaths. Counsel contended that the witness statement on oaths having not been signed before authorized officer is bereft of evidence and the suit is liable to be dismissed without much ado.as there is no evidence before the court to sustain the claim of the claimant. 92. Counsel contended that the claimant told the truth under cross –examination when he insisted of signing his witness statement on oath in his lawyer’s office. And he claimed not to know his lawyer’s office. 93. Counsel make reference to various signatures purporting to be of the claimant before the court and submitted that a careful perusal of statement on oath dated 20/7/17 which accompanied the statement of facts will show that it is completely different from the one dated 4/12/17 adopted by the claimant. Also signature in exhibit C7 (sic) and DW1B1-2, which shows when the claimant signed and collected his entitlement on the 7/7/17 is different signature. 94. The counsel for the claimant in answer to the contention of counsel for the defendant on the incompetency of the claimant’s witness statement on oath contended that the claimant maintained during cross-examination that he signed his witness statement on oath himself before this honourable court though the defendant continued to argue to the contrary. Counsel contended that the defendant’s argument on signature is rather too late in the day. Counsel submitted on signature that what is important when it comes to the witness statement on oath is that it will be adopted before the witness statement will become evidence. 95. The objection of the defendant to the witness statement on oaths stems from the evidence of CW1, under cross-examination where he stated thus: ‘’I don’t know when my employment was terminated; I was not served with letter of termination. I put it to you that you signed and collected your letter of termination on 7/6/15, the signature is not mine. I signed undertaking in Calabar at police station under duress. The signature on the undertaking is not mine. The undertaking shown to me not mine. I don’t know where the one I wrote is because I don’t have any. I did not collect anything and I did not take any action against the police for making me to write undertaking under duress. I didn’t mind the duress they forced me because they have beaten me. Yes, I authorised my lawyer to sign my witness statement on oath. It was signed for me. My lawyer charged me N2 M I paid N500,000.00 cash. The money is from my business. Yes, I was doing business. I don’t know if it is in my witness statement that I am doing business. There is no where I told my lawyer I am into business. Witness read paragraph 40 of his statement on oath. I was able to withdraw cash in the sum of N500,000.00 and gave it to my lawyer on 17/7/17. I travelled by road with the cash from Port-Harcourt to Abuja. I don’t know how much I am claiming my claim is as per paragraph 39 of my witness statement. I denied collecting entitlement. I denied collecting letter of disengagement.’’ 96. Under Re-examination CW1 testified that ‘’ I signed the column on top of Commissioner for oaths.’’ 97. At this juncture the witness signed his signature on plain sheet of paper which was admitted in evidence without objection as exhibit CW1F. 98. The counsel for the Defendant was also granted leave to ask question regarding exhibit CW1F. where CW1 stated that he signed the witness statement on oaths in his lawyers office. 99. The objection was not whether the witness statement on oath was signed by the Commissioner for oaths. There is no dispute as to the signing of the witness statement on oaths by the commissioner for oath. The dispute is regarding the claim that the witness statement on oaths was signed at the Claimant’s Lawyers office. The contention is that the claimant having stated that he signed the witness statement on oath in his Lawyer’s office the deposition has become ineffective as it has become a nullity for not having been signed by the claimant before the commissioner for oath. 100. Order 3 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, requires that a complaint commencing an action before the court shall be accompanied by written statement on oath of all witnesses listed to be called by the claimant. It is in compliance with this rule that the claimant accompanied his statement of facts with witness statement on oath of 20/7/17. However, the said witness statement of oaths was withdrawn and replaced with the one filed on 4/12/17, which the Claimant adopted before the court on 7/12/17, in the course of his oral testimony. The claimant under cross-examination has told this court that he signed his witness statement on oath in his lawyer’s office. It is to be noted that under re-examination, the claimant stated that he signed on top of commissioner for oaths. The re-examination did not correct the evidence of the Claimant to show that he signed his witness statement on oath before the Commissioner for oath, instead the Claimant insisted he signed his witness statement on oaths in his lawyer’s office. The counsel for the Claimant then decided to indulge in giving evidence in his address by submitting that the claimant maintained during cross examination that he signed his witness statement on oath himself before this Honourable court though the defendant has continued to argue to the contrary. This piece of evidence coming from the counsel is in conflict with the evidence of CW1 who positively asserted that he signed the said witness statement on oath in his lawyer’s office. Counsel did not bother to re-examine CW1 to ensure that he rectified his position. It is not allowed in law for counsel to testify in a matter where he is serving as counsel. In the circumstance the evidence of counsel regarding witness statement on oath is hereby expunged from the record of the court. 101. In the circumstance, what CW1, told the court under cross-examination stands as the truth, i.e. he did sign his witness statement on oath of 4/12/17 in his lawyer’s office. Since there is no any evidence to the contrary, the evidence of the claimant on the signing of his statement on oath remains unchallenged. The said piece of evidence is hereby accepted as truth. 102. It is to be noted that with the decision of the Supreme Court in the case of BUHARI VS. INEC (2008) 12 SCNJ 1 @ 91, which was religiously followed in the latest Court of Appeal decision in the case of ALIYU vs. BULAKI (2019) LPELR-46513(CA), the law is now well settled beyond any reproach that witness statement on oath signed in the chambers of a counsel is null and void and of no effect. Such a witness statement on oath is unreliable for use in the proceedings before the court. This is because a witness statement signed in the chambers of a counsel has violated the Evidence Act, Oaths Act and the provision on Notaries Public Act. 103. The witness statement on oath to accompany originating process envisage by the provision of Order 3 Rule 9 of the rules of this court is akin to the deposition in an affidavit. Both deposition in an affidavit and deposition in a witness statement on oath are simply statement of a witness made under oath out of Court. In either case, to make the affidavit, the written statement under oath acceptable for use, they must be sworn before the person duly authorized to take oaths. Section 112 of the Evidence Act provides: "An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner." By the decision in BUHARI VS. INEC (supra), witness statement on oath is akin to an affidavit sworn to before Commissioner for oath. 104. By the provision of section 112 of the Evidence Act an affidavit will not be admitted or acceptable for use in any of the four mentioned instances namely, where it is sworn before: (a) a person on whose behalf the same is offered; (b) his legal practitioner; (c) a partner; (d) a clerk of his legal practitioner. Further to the requirement of swearing to the affidavit by a deponent and the exclusion of any affidavit or deposition shown to have been sworn before any of the four classes of persons mentioned in Section 112, a further requirement to authenticate an affidavit sworn before a person duly authorized to take oaths is provided in Section 117 (4) as follows; "An Affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken." 105. A global view of the provisions Sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs, Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides: "No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested." Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public, it is manifestly clear that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath. 106. This is so because a deponent's legal practitioner is a person interested in the proceedings and therefore disqualified from Notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a Notary public, being legal practitioner representing the Respondent in the suit, is precluded from notarizing any document for the claimant for use in the case. 107. Additionally oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath. It includes most importantly, compliance with Section 5 (1) (a) &(b) of the Oaths Act, which requires the person taking the oath if a Muslim, to place both hands on a copy of the Holy Qur'an, if a Christian, to hold in his right hand a copy of the Holy Bible or of the New Testament and if a Jew, to hold in his uplifted hand a copy of the Old Testament and to then repeat after the person administering the oath, the prescribed words. It is after this has taken place, that the commissioner for Oaths verifies the contents and then confirms that same was signed in his presence by endorsing his own signature to that effect. Therefore, for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE VS. SPDC (NIG.) LTD. (2008) 9 NWLR (Pt. 1093) 593; MARAYA PLASTICS LTD. VS. INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109. The conditions necessary to make an affidavit competent were stated in the case of DR. MUHAMMAD IBRAHIM ONUJABE & ORS. VS.FATIMA IDRIS (2011) LPELR - 4059 (CA) as follows: "The Oaths act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance. The appearance of stamp and signature of Commissioner for oath only raised the presumption of regularity. But this presumption is rebutted with the evidence of CW1 that he signed his deposition on oath in his lawyer’s office. 108. In a similar and clear tone on the effect of violation of the provisions of Sections 112, 117 (4) of the Evidence Act and 19 of the Notaries Public Act, MUKHTAR, JSC as he then was in BUHARI V INEC (Supra) held: "It is settled law that an affidavit that is bereft of the requirements of the law, it is expected to meet, (most especially not a mere defect in the format that can be admitted with the leave of Court) will not be accommodated, (because, as it is in this case the error is fundamental) but must be rejected, and if already admitted must be expunged." 109. With the rebuttal of the presumption of regularity by CW1, the case of BUHARI V INEC (supra) comes to play to render the witness statement on oath fundamentally defective, the depositions having been signed in the chambers of the claimant’s counsel. 110. It is pathetic that there is nothing this court could do than to follow the law. This court by the doctrine of stare decisis is duty bound to follow the decisions of the apex court and court of appeal. Albeit, the counsel for the claimant despite the overwhelming evidence of signing of witness statement on oath at the office of counsel, still insisted that the objection of the counsel for the defendant amount to technicality, since the witness statement on oath was duly signed by the Commissioner for oath. The argument of counsel though looks very attractive is never the less without any substance. 111. It must be remembered that an objection may amount to technicality where a party quickly takes an immediately available opportunity, however, infinitesimal it may be, to work against the merits of the opponent’s case in other words he holds and relies tenaciously unto the rules of court with little or no regard to justice of the matter. See YUSUF V ADEGOKE (2007) 11 NWLR (PT.1045) 332. Technicality is always in terms of rules of court. See ATANDA V AJANS 1989 3 NWLR PT.111 511 SC. 112. There is no doubt that the current trend in our jurisprudence is to lean towards doing substantial justice and disregard technicality. However, where a matter has been settled by the apex Court, the decision of the apex court becomes binding on this court and other subordinate Courts. It must be made clear that this Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to overruling the decisions of the apex court and court of appeal. This court as trial dares not to embark on such futile exercise. This court having not been shown that the decision in BUHARI V INEC (supra) has been overruled by subsequent decision of the apex court cannot depart from the said decision. It is binding on this court and must be applied appropriately. I so hold. 113. In view of the foregoing, the claimant’s written statement on oath along with the exhibits tendered through him having been shown to have been sworn in the chambers of counsel for the claimant violated the clear and unambiguous provisions of Sections 112, 117 (4) of the Evidence Act and section 19 of the Notary Public Acts, the said witness statement on oath, on the authority of BUHARI VS. INEC (Supra), is hereby expunged from the record together with the exhibits tendered through CW1. As the defect in the swearing of the deposition, is intrinsic to the competence of the deposition and renders it fundamentally defective. 114. With the expunging of the claimant’s witness statement on oath there is nothing left in terms of evidence in proof of the claimant’s case? The reason being that this court is now left with bare pleading of the claimant without evidence to prove the averments contained therein. The law is trite that mere averments in pleadings without proof of the facts pleaded amount to abandonment of the pleadings. See IDESOH V ORDIA 1997 3 NWLR PT.491 17, ADEGBITE V OGUNFEOLU 1990 4 NWLR PT.146 578 MOBORIWO V AJASIN 1984 1 SCNLR 108, IROAGBARA V UFOMADU 2009 11 NWLR PT.1153 578. The abandonment of the pleadings by the claimants without evidence in proof means the claimant has failed to establish his claims to be entitled to judgment. The claimant’s claims fails and are hereby dismissed. 115. With the expunging of the witness statement on oath, after determination of the issue of competency of the witness statement on oath is enough to dispose of this suit. However, I shall proceed to determine the merit of the substantive suit, so as to give the Court of Appeal benefit of knowing the views of this court on the substantive suit, in case there is appeal and the witness statement on oath is found to be competently before the court. Which I much doubt. 116. It is without any doubt that three out of the five reliefs being sought are declaratory in nature. The fourth relief is for order compelling the defendant to pay the claimant the total sum claimed. The monetary reliefs sought are in respect of alleged unpaid salaries, allowances and cost of litigation. The task to be performed by this court is to determine whether the claimant has adduced sufficient evidence before the court to establish his entitlement to the reliefs being sought. 117. The law is trite that a claim is circumscribed by the reliefs claimed by litigant. The court that adjudicates is bound to limit itself to the claim before it. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47: The duty of a claimant in an action therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. By this action the claimant’s reliefs are in the main declaratory reliefs and an order compelling the defendant to pay the claimant unpaid salaries, allowances, entitlement and cost of litigation, as per his claim. This effectively makes the case one of a claim for declaration and special damages. 118. The law on the requirement of claimant to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the claimant in establishing declaratory reliefs is not granted even on admission by the defendant where the claimant fails to establish his entitlement of declaration by his own evidence. This means that the three declaratory reliefs sought by the claimant cannot be granted on admission or in default of pleading of the defendant not to talk of reliance on the evidence of the defendant witnesses. See BELLO V EWEKA (1981) 1 SC 101, (1981) 1 SC (REPRINT) 63, MOTUWANSE V SORUNGBE (1988) 12 SC (PT.1) 130, (1988) 5 NWLR (PT.92) 90, DUMEZ NIG. LIMITED V NWAKHIBA (2008) 18 NWLR (PT.1119) 361 SC. 119. The cases cited in this regard shows that a party seeking for declaratory reliefs has the burden to lead evidence to show that he is entitled to the declaration and cannot rely on admission in the pleading of the defendant to sustain his claim. This is because the grant or refusal of grant such a declaratory relief is at the discretion of the court. Thus, where a party seeks for declaratory judgment, the onus is on him to succeed on the strength of his own case and not on the weakness of the case for the defendant. A defendant who has not counter claimed only has the duty to defend and accordingly, a consideration of the defendant’s case and its weakness does not arise until the claimant has led evidence which prima facie show that he is entitled to the declaration sought. The facts in the defendant’s case may support that of the claimant, and in that instance, the latter can rely on that aspect of the defendant’s case that support his case to establish and prove his case. See KODILINYE V ODU (1935) 2 WACA 336, ODOFIN V AYOOLA (1984) 11 SC 72, BELLO V EMEKA (1981) 5 SC 291. ADELAJA V FANOIKI (1990) 2 NWLR (PT.131) 137, AKINTOLA V OLUWO (1962) 1 SCNLR 352. 120. The claimant as per his three reliefs is seeking for declaration that he is still in the service of the Defendant since his employment has not been determined in line with contract of employment or labour law. In attempt to prove this claim the claimant averred that he was transferred to Calabar Cross-River State along with some other members of staff of the Defendant. Two Months after transfer of the other staff to Lagos office, on 28/4/15, the Personnel Manager called him and asked him to be around as the Managing Director will be around for inspection. In furtherance of the directive he came to the office and while chatting with two security Men, a car came with 5 people who came out and put him under arrest and took him to the Police Station. Upon inquiry he was told a complaint was lodged by the President of the Defendant workers Union that he is threatening to kill his colleagues in connivance with a Juju man through diabolical means. He stated that he was taken to unknown destination after a long driving and the Police investigator brought out some pictures and asked him to identify them which he did and he then saw the President of the workers union behind him and at gun point he was asked by the investigator to sign a document he does not know. After signing the document the investigator told him that it was his pay off, that he has been paid he should not go near the Defendant office. He was then released on bail. The claimant also testified that the last salary paid to him was April 2015, salary and his appointment has not been determined but was prevented for no reason from reporting back to his job. Under cross examination he denied collection of letter of disengagement and collection of his entitlement. 121. For the defendant the claimant’s employment has been determined as he had been paid all his entitlement as per exhibits C7 (sic) and DW1B1-2. The Defendant tendered exhibits DW1A and DW1B,1-2 to establish that the claimant has been paid all his entitlement including salary in lieu of notice. 122. From the evidence adduced before the court and the reliefs being sought, the bone of contention between the claimant and the defendant is whether the claimant was disengaged from service and paid his entitlement. 123. In a master and servant relationship or contract of service without statutory flavor, employer is free to determine his employee’s employment with or without giving any reason. He can equally determine employment for reason or no reason. This means employer can terminate at will. However, for the employment of an employee to be determined the employer is bound to go by the terms and conditions of the contract. For an employee to succeed in his claim he must first and foremost establish that he is an employee of the defendant and the conditions of service that governed his employment. This is because contract of service is the bedrock of his case, it is not the duty of employer or defendant to prove that the termination was not wrongful. See AMODU V AMODE (1990) 5 NWLR (Pt.150) 356, KATTO V CBN (1999) 5 SC (Pt.ii) 21; (1999) 6 NWLR (pt.607) 390, OKOMU OIL PALM CO. LTD V ISERHIENRHIEN 673, IDONIBOYE-OBU V NNPC (2003) 1 SC (Pt.i) 40. 124. The Claimant has not tendered his letter of appointment before the Court, nor established and tendered conditions of service governing his employment with the Defendant. It is to be noted that in contract of employment the relationship between a master and his servant or an employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. This means an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184. 125. However, it must not be forgotten that a contract of service, is a relationship entered into between two or more persons employer and employee (master and servant) where by the employee or servant agree to serve the employer or master and to be subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit i.e payment of salary or wages. In the case of NIGERIA AIRWAYS V GBAJUMO (1992) 5 NWLR (Pt.244) 735, the Court of Appeal held that the relationship of master and servant is characterized by: i. A contract of service made under seal, oral or inferred from the conduct of the parties. ii. Payment of wages and salaries. 126. The court went further to say that where one party employs another, appoints him to various positions in its establishment, pays his salary and allowances, these acts constitute sufficient fact from which a contract of employment can be inferred. The claimant in this suit was employed by the defendants as a plant Mechanic, he has been collecting salaries until when it was stopped. This shows that the Claimant falls within the definition of ‘worker’ as provided under section 91 of the Labour Act. It is apt at this juncture to refer to the provision of section 91 of the Labour Act, the section read: a. ‘‘worker’’ means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, ……’’. 127. By the above quoted section it is plain that a contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. By this definition, therefore, a contract of employment need not necessarily be in writing. 128. Interestingly the defendants have admitted employing the claimant as Plant Mechanic. This has settled the issue of establishing the existence of contract of employment between the Claimant and the Defendant. The evidence before the court clearly shows that the claimant contract of employment was confirmed as per exhibit CW1D1. 129. Though contract of employment can be inferred from the pleadings of the parties. There is nothing before the Court to establish the conditions of service from which the Court can make a finding whether the Claimant is still in service of the defendant or not. 130. In any event from the averment contained in the claimant’s pleading and the evidence in the witness statement on oath more particularly paragraphs 12, 132, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the witness statement on oaths, the defendant has determined the contract of employment of the claimant. As pointed out earlier an employer has unfettered right to determine contract of employment of employee. This right stems out of the principle of labour law that court cannot impose employee on unwilling employer and vice versa. 131. From the evidence presented in this suit, it is without any doubt that the relationship between the claimant and defendant is that of a mere master and servant. In which case the master has unfettered right to terminate or even dismiss claimant. The motive of exercising the right does not render the excise of the right ineffective. In other words the defendant is at liberty to terminate the claimant’s employment with or without reasons. See FAKUADE V OAU 1993 5 NWLER PT.291 47, UMTHMB V DAWA 2001 16 NWLR PT.739 424. 132. The law is well settled that an employee in master and servant relationship cannot insist on being in the employment of the defendant when such employment has been determined. A contract of employment can be determined in writing or by conduct of either party. In the case at hand the evidence of the claimant in the paragraphs of the witness statement on oath clearly establish constructive dismissal/termination of employment of the claimant with the defendant. The claimant becomes aware of the defendants intention of termination of his employment when he was forced under duress to sign documents terminating his appointment. Though the claimant had denied ever signing the said document which were tendered as exhibit DW1A and DW1B1-2 by the defendant and vehemently denied receiving his entitlement for determination of his employment as claimed by the defendant. the claimant has vide his evidence stated that IPO told him that his employment has been determined and he has been paid off, the determination of claimant employment with the defendant can further be gleaned from the evidence of the claimant to the effect that after his release from detention on bail, he went to the office of the Defendant but was denied access by the security men. He also averred that he also went to the Head office in Lagos and he was not allowed to report and resume work. All these are pieces of evidence confirming constructive dismissal/termination of the claimant’s employment. In the circumstance the claimant cannot insist on still being in the employment of the defendant and entitled to salaries and allowance for work not done. 133. Having found that the contract of employment of the claimant has been constructively determined when he was informed by the IPO of the determination of his employment which was confirmed by subsequent conduct of the defendant in denying the claimant to report and resume work. 134. In the circumstances the duty of court is to determine what will be the entitlement of the claimant for the determination of his employment. It is to be remembered that the claimant made the work of the court difficult by refusing to tender his letter of employment and condition of service governing the contract of employment. This failure has forced the court to resort to common law principle on determination of employment. That is to say for a contract of employment to be determined reasonable notice of determination or payment in lieu of notice should be given. In this regard. The provision of section 7 of Labour Act will become appropriate in this case. Since the claimant has served for more than three years and his employment confirmed he is entitled to be given one Month notice or one Month Salary in lieu of notice. This is in addition to his other entitlement. In his evidence the claimant has averred that the last salary paid to him was that of April 2015 this means he is entitle to his salary from May 2015 to 7/7/15 when his employment was determined. 135. The Defendant had vide exhibit DW1B1-2 claimed to have paid claimant his entitlement and is not entitled to anything. 136. The Claimant vehemently denied under cross-examination collecting his entitlement. He claimed he was never paid his entitlement or salary in lieu of notice. Claimant denied even signing exhibit DW1B1-2, I have compared the proved claimant signature which he signed before the Court exhibit CW1F and that on exhibit DW1B1-2 and it is very clear to discerning eyes that the signature on exhibit DW1B1-2 is not signature of the Claimant. The signature on exhibit DW1B1-2 and that on exhibit CW1F are totally different not same. In view of this finding exhibit DW1B1-2, is hereby discountenance as not having any evidential value for having found that the Claimant did not sign or acknowledge receipt of exhibit DW1B1-2. With this finding the claimant is entitled to one Month salary in lieu of notice for wrongful disengagement from service of the Defendant and his salaries for the Months of May and June 2015, plus salary for 1st to 7th July 2015. 137. However in view of the earlier finding in this judgment that the claimant’s suit is incompetent due to absence of valid witness statement on oaths, the order of the court is that the claimant’s suit lacked merit due to lack of evidence in proof and same is hereby dismissed. Judgment is entered accordingly. Sanusi Kado, Judge. REPRESENTATION: Obinna E. Omeh, Esq; for the Claimant. Lilian Eze Onyekachi, Esq; for the Defendant.