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JUDGMENT 1. The claimant approached this Court via complaint dated and filed 25/04/2018. The complaint was accompanied with Statement of facts, witness statement on oath, list of witnesses, list of documents, and photocopies of documents to be relied on at trial. The claimant vide this action is seeking for the following reliefs;- 1. An Order of this Honourable Court declaring that the purported dismissal of the claimant from the services of the defendant is unlawful, null and void. 2. An Order setting aside the purported dismissal of the Claimant. 3. An Order directing the defendant to recall the claimant to duty forthwith with apology. 4. An Order directing the defendant to pay the claimant all his accrued salaries and benefits, that is the sum of N336, 000 (Three Hundred and Thirty Six Thousand Naira) only from 1st November, 2017 till date. 5. An Order of the Honourable Court for the payment of the sum of N5, 000,000.00 (Five Million Naira) only as general damages for unlawful dismissal. 6. An Order of this Honourable Court for the payment of the sum of N2, 000,000.00 (Two Million Naira) only as cost of this suit. 2. The Defendant entered appearance on 10/05/2018 and filed statement of defence and counterclaim which was accompanied by a written statement on Oath, Defendant’s list of witnesses, Defendant’s list of documents, photocopies of document to be relied on at the trial. 3. The Defendant counterclaimed against the Claimant as follows; 1. A declaration that the acts of the Claimant/ Defendant to Counter-claim amounts to insubordination and gross misconduct. 2. The sum of Two Hundred and Eighty Thousand Naira (N280, 000) as special damages for the unauthorised repair of the vehicle by Wisdom Millennium Car Specialist. 3. The sum of Five Hundred Thousand Naira (N500, 000) only as General damages. 4. The sum of Two Million Naira (N2, 000,000.00) only as cost of this litigation. CASE OF THE CLAIMANT 4. The Claimant opened his case on 28/02/2019 wherein he testified as CL. In the course of giving his evidence in chief, 4 documents were sought to be tendered in evidence. The documents were admitted into evidence and marked as Exhibits CLA- letter of confirmation with serial No. 2015- 0481, CLB letter of dismissal dated 5/10/2017, CLC1-15 a photocopy of condition of service, CLD1-4 a letter on letterhead of Legal Aid Counsel dated 11/1/18. The claimant also adopted his witness statement on Oath as his testimony before the Court in proof of his case. 5. From the statement of facts, witness statement on Oath and the oral testimony, the case of the Claimant was that he was employed by the defendant as a driver on the defendant’s project site on 24th day of February, 2015. The claimant testified that his employment was confirmed on the 24th day of February, 2015 via exhibit CLA. The Claimant testified that on the 30th day of September, 2017 one of the Defendant’s vehicle, a Toyota land cruiser was involved in an accident and that on 3rd October, 2017 he was instructed by his superior one Mr. Zhang to take the accidental vehicle for a test drive to access the extent of the damage before sending it for repair. Claimant further testified that Mr Zhang instructed him to get a quotation for the repair of the said vehicle. He complied with the instruction by taking the vehicle to Wisdom Millennium Car Specialist Vision Ltd who gave a quotation in the sum of N300,000 (Three Hundred Thousand Naira) only and that upon being given the said quotation he contacted his superior Mr Zhang who personally negotiated the cost to N280,000 (Two Hundred and Eighty Thousand Naira) with the mechanic via the telephone conversation. He testified that after the repairs where concluded he was given N28,000 as opposed to N280,000 and he was informed by Mr. Zhang that he was never instructed to take the car to the mechanic in the first place. He testified that on the 5th of October, 2017 Mr. Zhang went to the mechanic workshop in person and paid the said sum of N280,000 and received a receipt as proof of payment. Claimant stated that on the 12th day of October, 2017 he was handed a letter of dismissal despite giving 5 years of dedicated service to the defendant company. The claimant further testified that prior to his dismissal he was fully dedicated to the service of the defendant and that his monthly salary was N56,000 (Fifty Six Thousand Naira) only and that the defendant has failed to pay him since the 1st of November, 2017 till date which has accrued to N336,000 (Three Hundred and Thirty Six Thousand Naira) only. He testified that the defendant acted in bad faith and without recourse to the contract of employment entered into with the claimant and this has caused him and his family untold hardship. 6. Claimant further testified that the Legal Aid Council through its counsel wrote a letter of demand for the payment of his salaries and entitlements; however the defendant failed to comply with the demand letter. The Claimant is praying the Court to grant his reliefs as stated on his complaint. 7. Under cross-examination, CL testified that he worked for the defendant for 4 years and that during his work he has taken the defendants cars to Wisdom Vision Car Ltd for repairs. He testified that he knew CGC, Auto star and that he took cars to CGC for repairs and that he did not take his car to Auto Star. CL testified that the signature on exhibit CLA was his signature. CL was shown Article 27 of exhibit CLC1-15 to read but he stated that he cannot read. He further testified that his statement on oath was prepared by his sister. A document was shown to the witness and he said it was the receipt for payment of repairs N280,000. THE CASE OF THE DEFENDANT 8. One Yusuf Aliyu an employee of the defendant with the designation of Assistant Manager opened the defendant’s case as DW on 16/05/2019. DW adopted his witness statement on Oath deposed to and tendered 4 documents as exhibits. The documents were admitted into evidence and marked as exhibit DWA1-16- 16 Nos Cash/ Credit sales invoices of CGC motors Nigeria Ltd, exhibit DWB1-2- 2 Nos invoices of Auto Spa, exhibit DWC1-2- The warning letter dated 7/2/17, exhibit DWD1-2- Sales invoice of Wisdom dated 4/10/17. The case of the Defendant is that the Claimant’s employment was indeed confirmed on 24th February, 2015. Furthermore the Defendant witness testified that indeed the claimant was instructed by Mr. Zhang to test drive the said vehicle that was involved in an accident. He further stated that indeed Mr. Zhang had asked claimant to take the cars for repairs, however, the claimant to the vehicle to a road side Mechanic at Apo instead of a vendor as is the defendant’s practice and all the drivers including the claimant are said to be aware. He testified that Mr. Zhang upon discovering that the vehicle had already been fixed by a road side mechanic and would not be released unless payment is made was compelled to pay the quoted price. And that Mr. Zhang proceeded to report the said incidence to the Human Resources Department. The claimant witness further testified that the claimant indeed has a chequered past of breeching company policy and he had been issued both verbal and written reprimand in exhibit DWC1-2. DW further stated that contrary to the averments of the claimant, the defendant neither failed nor neglected to respond to the letter from the Legal aid council but rather through its solicitor responded denying all the claims made by the claimant. DW urged the Court to grant the defendants the reliefs sought in the counterclaim. 9. Under cross-examination DW informed the Court that he had been working with the defendant for 5 years and his position is now Assistant Manager. He testified that he was aware of the said accident and that he did not know Wisdom Auto Mechanic and that the instruction was to take to Auto Star or CGC. He further testified that the repairs were paid for by Mr Zhang. DW further stated that the claimant does not listen to instructions. THE SUBMISSION OF THE DEFENDANT. 10. The counsel for the Defendant filed its final written address dated and filed 10/06/2019 and adopted same on Monday the 14th October, 2019. In the written address twin issue were formulated for determination by the Honourable Court, to wit: 1. Whether from the evidence adduced before this Honourable Court the claimant has proved his claim of unlawful dismissal and thus entitled to the reliefs sought in his complaint; 2. Whether the defendant has proved the counterclaim of insubordination and unauthorised conduct against the claimant and thus entitled to the reliefs sought in the counterclaim. 11. In arguing issue 1; Whether from the evidence adduced before this Honourable Court the claimant has proved his claim of unlawful dismissal and thus entitled to the reliefs sought in his complaint; Counsel for the Defendant argued that the position of the law is clear that he who asserts must prove, see TEXACO NIGERIA PLC V KEHINDE (2000) LPELR-10000(CA). Counsel argued that in relation to the present case, the claimant asserts that his dismissal was null and void, however claimant failed to indeed prove the said assertion as he failed to show evidence that the dismissal was wrongful and against the terms and conditions of service. See AHMED V ABU & ANOR (2016) LPELR-40261 (CA). Counsel submitted that the claimant failed to discharge the burden of proof placed on him by Law. As he failed to show from evidence adduced during the trial that the defendants breached the terms of the conditions of service. 12. Counsel also argued that despite claimant’s failure to prove that the defendants breached the conditions of service, he stated that the defendant has no obligation to prove compliance with the contract of employment. However counsel referred the court to the relevant provisions of the conditions of service that led to claimant’s dismissal. Counsel sited Article 27 of the terms and condition of service which provides for the discipline of employees, counsel argued that Article 27 a (i) the defendant established the protocol which governs the repairs of vehicles as stated in paragraph 7 i-vii, However, the claimant never denied the knowledge of the said established protocol. Counsel submitted that the claimant’s decision to patronize Wisdom Millennium Car Specialist Vision Limited cost the company time and money. 13. Defendant’s counsel further argued that on cross examination. Claimant testified that he was unable to read and his witness statement on oath was prepared by his sister, and the said witness statement on oath failed to comply with section 119 of the Evidence Act which provides for an illiterate jurat, hence the court should disregard claimant’s witness statement on oath as it is inadmissible in the circumstance. 14. In arguing issue 2; Whether the defendant has proved the counterclaim of insubordination and unauthorised conduct against the claimant and thus entitled to the reliefs sought in the counterclaim. Counsel contended that the claimant had failed to file any defence whatsoever to their counterclaim and it is proper to file a defence to the counterclaim. See OLALEYE V WEMA BANK LTD & ANOR (2010) LPELR-4744 (CA). Defendant’s counsel argued that despite claimant’s failure to establish a defence to the counterclaim, defence has gone ahead to lead evidence to prove their counterclaim by tendering the receipt of payment of the sum of N280,000. 00 (Two Hundred and Eighty Thousand Naira) only and the claimant did not deny the fact that the above payment was ever made. Defendant’s counsel argued that despite the averments and testimony of DW1, the claimant still failed to file any defence and failed to lead evidence to counter the averments and testimony of the DW1. Counsel urged the court to dismiss all reliefs sought by the claimant for failure to discharge the burden of proof on him and urged the Court to uphold its counterclaims and grant all reliefs sought therein. THE SUBMISSION OF THE CLAIMANT. 15. The final written address of the claimant was dated and filed on 16/07/2019. The counsel for the claimant Emmanuel Utomi, Esq. adopted his written address on 14/10/2019 as his argument in this suit, while praying the Court to grant all the reliefs sought by the claimant. In the written address twin issues were formulated by counsel for determination; they are:- 1. ‘’Whether or not the purported dismissal of the claimant by the Defendant does not amount to a contravention of item 27 of the company’s terms and condition of service.’’ 2. ‘’Whether the Defendants have successfully proved their counter-claim in line with the position of the law as regards a party counter-claiming.’’ 16. In arguing issue one: Whether or not the purported dismissal of the claimant by the Defendant does not amount to a contravention of item 27 of the company’s terms and condition of service. Argued that in the case of WAEC V OBISESAN (2008) 26 W.R.N PAGE 133 LINE 30 PER UWA, JCA “Generally, what determines termination of an appointment depends upon what the terms of contract between the parties provides”. Counsel contended that from the above authority it is clear to say that parties are bound by their condition of employment which also determines what constitutes or what may lead to termination of employment by an employer. Counsel further argued that by the provision of article 27 of the terms and condition of service exhibit CLC1-15 the claimant ought not to have been out rightly dismissed as the said document provides; “if breaching one or combination of above clauses, employee will be punished as follows; I. Written warning II. Suspension from work without pay to a maximum of 10 working days III. Deduction of work hours IV. Deduction of daily wage rate.” 17. Counsel emphasized the fact that the claimant’s offence did not fall into the category of offences that warrant out right dismissal. The only offence claimant would have seems to have been guilty of is 27(d) (xii) “operating the equipment or vehicle of company without permission”. Counsel further stated that claimant had testified in his witness statement on oath that he only took out the vehicle on the instruction of his superior Mr. Zhang, who personally paid for the repairs of the vehicle. Defendant can therefore not claim that claimant acted on his own without authority. Counsel submitted that the failure of the defendant to comply with their own terms and conditions of service in carrying out the disciplinary action against claimant is fatal to the defence and as such makes the purported dismissal of the claimant null and void. Counsel further urged the court to discountenance exhibit DWC2 the warning letter tendered in evidence by the Defendant witness, as it contravenes the provision of section 91 of the Evidence Act, and therefore does not satisfy the condition for dismissal of the claimant as an employee of the defendant. 18. Counsel submitted that as to the issue raised by the defendant where they stipulated that the claimant was an illiterate due to his inability to read during cross-examination and his testimony that his witness statement on oath was made by his sister, the court ought to disregard the defendant’s assertion of illiteracy as the Evidence Act under section 119 only envisages documents made on oath by a person who is an illiterate and not a document made and signed by another person. 19. In arguing issue 2; Whether the Defendants have successfully proved their counter-claim in line with the position of the law as regards a party counter-claiming. Counsel contended that the defendant had totally failed to prove his counter claim as there was no witness statement on oath in support of the counter claim neither did they make reference to any document in support of the counter-claim. See FBN PLC V FAIKO (NIG) LTD (2008) 46 W.R.N PAGE 83, LINES 20-35 PER ALAGOA, JCA. Counsel urged the Court to uphold the claims of the Claimant and dismiss the defence of the defendant as lacking in merit. DEFENDANT’S REPLY ON POINT OF LAW 20. Defendant filed a reply on point of law dated and filed 17th July, 2019 where they argued that in response to claimant’s argument in their final written address where the claimant stated that they failed to invite Mr. Zhang to testify during trial, they argued that the defendant is a company (Juristic person) and can only act through its servants and agents and any of such agent or servant can give evidence and such evidence would not be deemed as hearsay. See STB LTD V INTERDRILL NIGERIA LTD (2007) ALL FWLR (PT 366) 757 AT 772. 21. Secondly as to the claimant’s submission that they defendants did not bring before the Court a certified list of authorized vendors; Defendants argued that in their statement of defence/ Counter claim at paragraphs 7 (i-iv) and witness statement on oath at paragraph 12-14 it was clearly pleaded the procedure adopted by drivers when it relates to car repairs and claimant did not deny these averment. See SHAGARI V COP (2007) 5NWLR (PT 1027) 275 AT 295 where the court stated that averments not controverted or challenged ought to be accepted or acted upon by the Court. 22. Counsel submitted that as to the claimant’s illiteracy, he admitted under cross examination that he cannot read and write and his witness statement on oath was prepared by his sister. Counsel submitted that this scenario satisfies the definition of an illiterate. See ADETORO V UBN PLC (2018) LPELR-43797 (CA) 23. Finally, Defendant’s counsel in responding to claimant’s submission that their failure to file a witness statement on oath in support of their counter- claim is a failure to comply fully with the rules of pleadings relied on OROJO V L.R AVIONICS TECHNOLOGIES LTD (2018) LPELR-43797 (CA), and BELOXXI & COMPANY LTD V SOUTH TRUST BANK (2012) LPELR (8021)1 where the court held that the practice is that the counterclaimant presents his evidence in defence and in support of the counterclaim at the same time. Counsel submitted that the Defendant need not file a separate witness statement on oath in support of its counterclaim and that the written disposition of Mr. Yusuf Aliyu is sufficient to proof the averments of the counterclaim. 24. Counsel urged the court to resolve the issue in favour of the defendant, dismiss the complaint of the claimant on the ground that he failed to discharge the burden of proof on him and uphold the counterclaim and grant all the reliefs sought therein. COURT’S DECISION 25. I have considered all the processes filed by the parties in this suit as well as the written and oral submissions of counsel for both parties. 26. The claimant and the defendants have all formulated two issues each for determination by this court. The issues formulated by parties are saying the same thing but in different tone. In the circumstance I shall adopt the issues formulated by the defendant in resolving the dispute before the court. They are:- 27. Whether from the evidence adduced before this Honourable Court the claimant has proved his claim of unlawful dismissal and thus entitled to the reliefs sought in his complaint; 28. Whether the defendant has proved the counterclaim of insubordination and unauthorised conduct against the claimant and thus entitled to the reliefs sought in the counterclaim. RESOLUTION OF ISSUE ONE: ‘’Whether from the evidence adduced before this Honourable Court the claimant has proved his claim of unlawful dismissal and thus entitled to the reliefs sought in his complaint.’’ 29. In arguing this issue the counsel for the defendant contended that the clamant has not discharged the burden of prove imposed on him by law to prove breach of the contract of his employment by the defendant to entitled him to the reliefs being sought before the court. As he failed to show from evidence adduced during the trial that the defendants breached the terms of the conditions of service. Counsel argued that in relation to the present case, the claimant asserts that his dismissal was null and void, however claimant failed to indeed prove the said assertion as he failed to show evidence that the dismissal was wrongful and against the terms and conditions of service. 30. Counsel further argued that on cross examination, the Claimant testified that he was unable to read and his witness statement on oath was prepared by his sister, and the said witness statement on oath failed to comply with section 119 of the Evidence Act which provides for an illiterate jurat, hence the court should disregard claimant’s witness statement on oath as it is inadmissible in the circumstance. 31. For the counsel for the claimant what determines termination of an appointment depends upon what the terms of contract between the parties provides. Counsel argued that parties are bound by their condition of employment which also determines what constitutes or what may lead to termination of employment by an employer. Counsel further argued that by the provision of article 27 of the defendant’s terms and condition of service exhibit CLC1-15 the claimant ought not to have been out rightly dismissed. As the claimant’s offence did not fall into the category of offences that warrant out right dismissal. The only offence claimant may seems to have been guilty of is 27(d) (xii)- “operating the equipment or vehicle of company without permission”. Counsel further stated that claimant had testified in his witness statement on oath that he only took out the vehicle on the instruction of his superior Mr. Zhang, who personally paid for the repairs of the vehicle. Defendant can therefore not claim that claimant acted on his own without authority. Counsel submitted that the failure of the defendant to comply with their own terms and conditions of service in carrying out the disciplinary action against claimant is fatal to the defence and as such makes the purported dismissal of the claimant null and void. 32. From the reliefs being sought by the claimant which have been reproduced in the earlier part of this judgment, the claimant’s case is for declaring his dismissal from service unlawful, null and void, setting aside the purported dismissal of the claimant, an order directing the defendant to recall the claimant back to his duty, payment of accrued salaries and benefits in the sum of N336,000.00 (three Hundred and Thirty Six Thousand Naira), N5,000,000.00 (Five Million Naira) general damages for unlawful dismissal and the sum of N2,000,000.00 (Two Million Naira), cost of this suit. 33. Vide the reliefs being sought the claimant in a nutshell is contesting the validity of his dismissal from service, considers his employment still subsisting, seeking for recall back to his job and making claims for special and general damages. 34. In law contract of service is the bedrock upon which an aggrieved employee may found his case. An employee contesting validity of his dismissal from service succeeds or falls on the terms and conditions of his contract of employment. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. See WESTERN NIGERIA DEVELOPMENT CORPORATION V ABIMBOLA 1966 4 NSCC 172, FRANCIS ADESEGUN KATTO V CBN 1999 5 SC PT.II 21. None of the parties in this suit has claimed that the contract of service is the type that guarantees security of tenure then the contract falls within the common law principle of master and servant relationship. 35. From the evidence as can be gleaned from the pleadings of the parties and the exhibits tendered, the contract of employment between the parties in this suit is that of mere master and servant relationship. In this kind of relationship the defendant being the master of the claimant who is servant, has unfettered right to dismiss the claimant from service. In doing so the motive in exercising the right does not render the exercise of the right ineffective. The employer has in law right to determine the contract of service with or without any reason. See FAKUADE V OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL 1993 6 SCNJ 35 @ 44, 1993 5 NWLR PT.291 47@ 58, UMTHMB V DAWA 2001 16 NWLE PT.739 424. 36. Whenever an employee complain that his employment has been wrongfully determined, he has the onus to place before the court terms of the contract of employment and to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as the defendant in an action brought by the claimant employee to prove any of these facts. See KATTO V CBN 1999 9 SC PT.II 61, AMODU V AMODE 1990 9-10 SC 61 @ 75. 37. The claimant’s case is that the defendant in dismissing the claimant from service acted in bad faith and without recourse to the contract of employment entered into with the claimant. See paragraph 16 of the statement of facts. The claimant asserted that the defendant must adhere strictly to the terms and conditions of service in relieving the claimant of his employment. The terms and conditions were tendered and admitted in evidence as exhibit CLC1-15. 38. I am satisfied that the claimant has pleaded and proved his contract of service by tendering exhibits CLA and CLC1-15. In the circumstance this court will rely of exhibit CLC1-15, the terms and condition of service to determine whether or not the claimant has proved any breach. The claimant has discharged the initial burden of proving or placing before the court of his contract of service. 39. Since the relationship of the parties is regulated by exhibit CLC1-15, this court will look at it in deciding whether there is breach of the terms and conditions of employment or not. 40. According to the defendant the claimant has not proved any breach as he did not outline the specific provisions of the terms and conditions of service which the defendant breached in dismissing the claimant from service, the claimant did not lead any evidence to prove breach of any of the provisions of the terms and conditions service. Counsel referred to Article 27 of the terms and conditions of service which provide for discipline of employees of the defendant and submitted that pursuant to Article 27 a (1) the defendant has established protocols which govern the repair of vehicles as stated in paragraph 7 I – vii of the statement of defence and paragraph 12 – 17 of the witness statement on oath. 41. Counsel contented that the provisions in Article 27 d (xii), and (xiii) justifies the first reason for dismissal of the claimant. Counsel also submitted that the claimant under cross examination admitted taking cars for repairs to CGC Motors Nigeria Ltd which is one of the established service vendors of the defendant. The claimant has also admitted taking damaged Toyota Land Cruiser SUV for repairs to Wisdom Millennium Car Specialist Vision Limited. 42. Both the claimant and the defendant are agreed that Article 27 which make provision for disciplinary action against an employee of the defendant. Article 27 d is the appropriate provisions of the conditions of service to determine wrongfulness or otherwise of the claimant’s dismissal from service of the defendant. 43. It is to be noted that the employment of the claimant under consideration is one without statutory flavour, it is the terms and conditions of service that the court is bound to consider in determining the rights of the parties. See AJI V CHAD BASIN DEV AUTHORITY & ANOR 2015 3-4 SC PT.II 1 @ 29. 44. The law is well settled that in a contract not protected by statute, the employer can dispense with the services of this employee with or without any reason or no reason at all. See OLANIYAN V UNILAG SUPRA, NIGERIAN OIL MILLS LTD V DAURA (1996) 8 NWLR (PT.468) 601, ISUEVWORE V NEPA (2002) 7 SC (PT II) 125, (2002) 13 NWLR (PT.784) 417, (2002) 7 SCNJ 323, ZIDEEH V RIVERS STATE CIVIL SERVCE COMMISSION (2007) 1-2 SC. However, the right of employer to dismiss his employer is subject to following due process. If an employer has adduced reasons for dismissal, the employer is duty bound to justify and prove the reasons for the dismissal. 45. In the instant case exhibit CLB is the letter of dismissal. For proper appreciation paragraph 1 of the letter exhibit CLB, read; ‘’The above person has been dismissed from service because on the 03/10/2017, he took the company’s vehicle out for a long period of time and when he was called he never answer his calls and on 04/10/2017 he also took the company’s vehicle out for repair without the approval of his boss and at a very high cost which is inappropriate. You are therefore advice to return all the properties of the company in your possession within the next 24hrs of receiving this letter for your services are no longer needed.’’ 46. The above quoted portion of the letter of dismissal is very clear and unambiguous as to the reasons why the claimant was dismissed by the defendant. As pointed earlier, an employer is not under any obligation to give reason for dismissing his employee, but where reason was given it becomes obligatory on the defendant to justify the reasons given. 47. There is no doubt that Article 27 d of exhibit CLC1-15 has provided for offences based on which the defendant can dismiss any of its employees, without notice and payment in lieu of notice. 48. The counsel for the defendant has submitted before the court that the first reason adduced for dismissal of the claimant is justified by the provisions of Article 27 d (xii), and (xiii) of exhibit CLC1-15. For the justification of the second reasons counsel for the defendant submitted that the claimant under cross examination has testified that he unilaterally took decision to patronize Wisdom Millennium Car Specialist Vision Limited, which is against established protocols for car repairs known to claimant and his breach of policy caused financial loss to the defendant. 49. The claimant in his pleadings and evidence has stated that he was employed by the defendant as a driver, his contract of service was confirmed. The claimant stated that on 30/9/2017 one of the drivers of the defendant by name Meshak was involved in an accident with the defendant Toyota Land Cruiser SUV. Consequent upon which one Mr. Zhang, the claimant’s superior officer asked him to take the said vehicle for a test drive to assess the extent of damage done to the vehicle before sending it for repairs, which he did and reported back. Mr. zhang then further directed the claimant to get quotation for the repairs from a mechanic, which he also obeyed and got a quotation from Wisdom Millennium Car Specialist Vision Limited. The quotation was personally negotiated by Mr. Zhang and also went personally to make the payment after all repairs. 50. Having perused the evidence of parties, Article 27 d of Terms and Conditions of service exhibit CLC 1-15 and exhibit CLB the letter of dismissal, are very clear and unambiguous. It is clear to me that the reasons given for termination of the employment of the claimant have not been justified. One of the reasons is that claimant took out defendant’s vehicle for a long time for a long period of time and when he was called he never answered the calls. There is nothing before the court to show that claimant took defendant’s vehicle for a long period of time. This is because the defendant has not adduced evidence to show the time the vehicle was taken by the claimant and the time he returned same to enable the court determined whether actually the claimant did took the vehicle and stayed for long period before returning it back to the office. On the second reason that on 4/10/2017 clamant took defendant’s vehicle for repairs without approval of his boss at a very high cost has no support from the evidence adduced before the court. The claimant has averred that he was asked by his boss Mr. Zhang to take the vehicle that was involved in accident for repairs which he obeyed. He also testified that Mr. Zhang who directed him to take the vehicle for repairs negotiated the cost of the repairs and after the repairs Mr. Zhang went personally and settled the cost of the repairs. This piece of evidence has not been contradicted. The defendant is relying on the evidence of DW1 in proof of the position of the defendant. The evidence of DW1 on the issue of repairs and what happened between the claimant, Mr. Zhang and Wisdom Millennium Car Specialist Limited, cannot be accorded evidential value as the said evidence is hearsay based on what he heard. The counsel for the defendant has in reply on points of law argued that DW1 is an employee of the defendant an artificial person who cannot give evidence on its own except through its members of staff. I agree with counsel that the defendant can only act through its agents and is entitled to have its agents or members of staff testify on its behalf. However, for the evidence of the agents of the defendant to be credible and reliable it must be the evidence of the relevant member of staff that has the requisite knowledge of the evidence. In the case at hand the appropriate officer of the defendant that should have given evidence in this case is Mr. Zhang and not any other officer not in the knowhow of the transaction in issue. The apex court has held that where the conduct and affairs of a particular officer in respect of a specific transacrion is in dispute, it is thatofficer who should be called to exlain the transaction and not an officer who never had anything to do with the transaction. See JALICO LTD V OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR PT.391 534, See also TUGBOGBO V ADELAGUN 1974 1 ALL NLR PT.1 49, OGUGUA V AMELS TRANSPORT LTD 1974 4 ECSLR 43 affirmed 1974 4 ECSLR 385 SC, in view of these decisions I discountenance the evidence of DW1 on this issue as it has no evidential value. Therefore, I accept the evidence given by the claimant that he was directed by his superior officer to take the vehicle for repairs which he obeyed. With this finding the claimant did not took out the defendant’s vehicle without approval. 51. The assertion of the defendant that there is established protocol under Article 7 of the terms and conditions of service exhibit CWC1-15, that empower the defendant to formulate new rules and regulation, seems to have no basis. Counsel has not tendered any instrument or document where exhibit CWC1-15 was altered and a protocol for repairs was incorporated into the terms and conditions of service to make it binding on the claimant and to make disobedience a ground for disciplinary action. I reject the contention that there is any established protocol on repairs in the absence of such protocol been produced for inspection of the court. The receipts tendered by the DW1 cannot establish any protocol all that those receipts could establish is that the defendant had at one time or the other patronizes CGC LTD and Auto Star LTD. 52. On issue of witness statement on oath being prepared by the claimant’s sister such assertion cannot have basis in law. It is common knowledge that court processes for filing before the court are prepared by counsel engaged to prosecute the matters in court. The mere assertion that the claimant’s sister prepared the document is not enough to convince the court to reject such document. The objection of counsel in that regard is hereby discountenance. 53. It is my finding that the claimant has not violated any of the provisions of Article 27 d of exhibit CWC1-15, to warrant the ultimate punishment of dismissal from service. I hereby declare the dismissal of the claimant from service wrongful. 54. For the remaining reliefs being sought, this court does not have the power to grant or that the claimant’s employment is still subsisting, or that he should be reinstated or recall back to his job. This is because the claimant contract of employment is not one with statutory flavour. It is only in contract with statutory flavour that the court can consider the employment subsisting and order reinstatement or recall of the claimant. Since the claimant’s employment is that of master and servant he is not entitle to recall, but will be entitled to damages for wrongful dismissal. The remedy is damages where dismissal is held to be wrongful as in this case, but not declaration that the dismissal is unlawful, null and void. See BANKOLE V NBC (1968) 2 ALL NLR 372, ZIDEEH V RSCSC (2007) 1-2 SC 1 @ 24. 55. On damages the law is that servant who had been wrongfully dismissed cannot claim his wages for services not rendered. The measure of damages is prima facie the amount that the claimant would have earned had the employment continued according to contract. See THE NIGERIAN MARKETING BOARD V A. O. ADEWUNMI (1972) 11 SC (REPRINT) 73. In the case at hand having regard to exhibit CLC1-15 the claimant is only entitled to payment of one month salary for the wrongful dismissal, I so ordered. COUNTER CLAIM. 56. The second issue for determination is whether the Defendant has proved its counter claims to be entitled to same. The counter claim of the Defendant is as follows – I. As special damages for the unauthorised repair of the vehicle by Wisdom Millennium Car Specialist. II. The sum of Two Hundred and Eighty Thousand Naira (N280,000.00) as special damages for the unauthorised repair of the vehicle by Wisdom Millennium Car Specialist. III. The sum of Five Hundred Thousand Naira) as general damages. IV. The sum of Two Million Naira (N2,000,000.00) only as cost of this litigation. 57. The law is trite that a counter claim is a separate and independent suit of its own. Therefore, just as the Claimant has the burden of proving his case to be entitled to a grant of same, the Defendant/Counter claimant also must adduce sufficient, cogent and credible admissible evidence in support of its counter claim. See UAC (Nigeria) Plc. v. Eunice Akinyele (2012) LPELR-8015 (CA). 58. It appears the defendant/counter claimant is relying heavily on exhibits DWA1-15, BWB1-2 and DWC1and DWD, to press home the counter claim. Exhibit DWA1-15 are invoices from C. G. C. Motors Nigeria Ltd, and exhibit DWB1-2 are invoices from Auto Spa. These exhibits were tendered to show that defendants had been patronizing the services of the two companies in servicing and repairing of the claimant’s vehicles. It is trite law that exhibits tendered for a particular purpose cannot be utilize for another purposes, this means that claimant cannot with these exhibit establish his claim for special damages. 59. For exhibit DWD it is a Sales Invoice dated 4/10/2017, from Wisdom Millennium Car Specialist Vision Limited with a total sum of N280,000.00 (Two Hundred and Eighty Thousand Naira). it was tendered in proof of payment of repair of vehicle by Wisdom Millennium Car Specialist Company. 60. The claim for special damages by the defendant is predicated on alleged unauthorized repair of vehicle at Wisdom Millennium Car Specialist Limited carried out by the claimant. By that the defendant alleged that it has lost the sum of N280,000.00 (Two Hundred and Eighty Thousand Naira) due to the unauthorised repair. However, as pointed out earlier, the evidence before the court shows that Mr. Zhang the superior officer of the claimant was the one that directed the claimant to take the car for repairs. The claimant went on to state that Mr. Zhang even negotiated the cost of the repairs himself and when the repairs was completed Mr. Zhang went personally and paid for the repairs. In view of this evidence I am of the view that there was authorization for the claimant to take the vehicle for repairs which he did. 61. There is also evidence to the effect that it was one Mr. Meshak one of the drivers of the defendant that had accident with the vehicle Toyota Land Cruiser SUV, as a result of which it got damaged and the claimant was called upon by Mr. Zhang to take it for repairs. Therefore, it is surprising that the defendant will be making claim for special damages from the person that was not the one that damaged the vehicle. Another snag to the claim for special damage is that even if the claimant did not take the vehicle to Wisdom Millennium Car Specialist for repairs, the vehicle will still be taken for repairs and defendant will pay for the repairs. The defendant alluded to the cost of repair by Wisdom Millennium Car Specialist Limited in the sum of N280,000.00 to be on the high side. But the defendant has not adduced evidence to prove that claim. If claimant had shown that before the vehicle was taken to Wisdom Millennium Car Specialist Limited for repairs, another or some other persons have quoted lower price for the repairs then the defendant can make case for the amount that is the amount that makes the repairs by Wisdom to be on the high side. In the circumstances the Defendant has not proven entitlement to the counter-claim in the sum of N280,000.00 from the claimant. 62. The failure of the relief on special damages means failure of the other relief for damages and cost of litigation as they depend on the success of claim for special damages. 63. On the whole the order of the court is as follows:- I. The dismissal of the claimant from the employment of the defendant vide exhibit CLD is hereby declared wrongfully. II. The claimant is entitled to payment of the sum of N56,000.00 (Fifty Six Thousand Naira) being one Month salary in lieu of notice. III. The judgment sum shall be paid within 21 days from today failing which it will attract 10% per annum. IV. The defendant/counter claimant’s counter claim fails and is hereby dismissed. 64. Judgment entered accordingly. Sanusi Kado, Judge. REPRESENTATION: V. S. Labesa, Esq: For the Claimant Atna Koyembo, Esq; For the Defendant.