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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: SEPTEMBER 22, 2015 SUIT NO: NICN/LA/144/2013 BETWEEN CAPTAIN OLUKAYODE OLA - Claimant And BELL VIEW AIRLINES LIMITED - Defendant REPRESENTATION J.A. Akinola with Mrs J. Edu for the Claimant A.H. Are (Mrs) with O.B. Ajibowa (Mrs) for the Defendant. JUDGMENT The Claimant, by a General Form of Complaint, approached this Court on the 20/2/13 and by his Statement of Facts of the same date sought the following reliefs: 1. The sum of N6,624,637.12 (Six Million, Six Hundred and Twenty Four Thousand, Six Hundred and Thirty Seven Naira Twelve Kobo) being the total sum for the following: i. August salary(22nd-31st) N370,389.31 ii. September salary (1st – 30th) N1,128,000 iii. October salary(1st -10th) N370,849.31 iv. December salary(1st -31st) N1,128,000 v. January salary(1st – 29th) N1,128,000 vi. 2007 Leave Allowance N217,219.67 vii. Contributory pension allowance N2,274,421 viii. Domestic flight allowance N7,225 2. The sum of $4,375.57 (Four Thousand Three Hundred and Seventy Five Dollars, Fifty Seven Cents) being the sum of the Claimant’s international flight allowance 3. The sum of N5,000,000 (Five Million Naira) as claim for damages against the Defendant. 4. The cost of this suit. The complaint was accompanied by Statement of Facts, List of witness, Witness Statement on Oath, List of Documents as well as copies of the documents to be relied on at trial. The Defendant entered appearance on the 7th January, 2014 and filed its Statement of Defence and Counter claim on the same day together with list of witness, witness statement on oath, list of documents to be relied on at trial. In it, the Defendant counterclaimed as follows- a. The sum of N14,700,000 (Fourteen million, seven hundred thousand naira) being the total loss suffered by the counterclaimant as a result of unreasonable delay and /or disruption of flight as per the following: i. 10 days of overstayed leave N3,200,000 ii. Absence from duty between13/11- 22/11/2005 N4,100,000 iii. Absence from duty between 22/05 - 05/06/2006 N2,600,000 iv. Absence from duty between 19/02 - 28/02/2007 N2,100,000 v. Absence from duty between 19/07 - 26/07/2007 N1,500,000 vi. Absence from duty between 17/01 - 29/01/2008 N1,200,000 b. The sum of N5,000,000 Five Million Naira) only as claims for damages against the Claimant/Counter Defendant. c. The cost of this counter claim. The hearing of this case commenced on 8/7/14 when the Claimant opened his case and testifies as CW1, adopted his written statement dated 20/2/13 as his evidence in chief and tendered 22 documents as exhibits. The documents were admitted as exhibits without objection and marked as Exh. C1 - Exh. C22. Witness urged the Court to grant all his reliefs and dismiss the Counterclaims against him. The case for the Claimant as revealed from the pleadings filed is that he was an employee of the Defendant from March 2005 to January 2009; that he was employed by the Defendant in March 2005 by an employment agreement dated the 8/3/05; that his appointment was confirmed by the Defendant through a letter of confirmation dated 27/9/06; that he was informed by the Defendant via a memo dated 1/5/07 of the approval of the payment of his training allowance with effect from 16/5/07; that the Defendant also informed him by an Internal Memo dated 31/5/07 of his appointment as route training pilot acknowledging his resourcefulness and proficiency at his job; that his salary and entitlements were reviewed by the Defendant via a letter dated 26/3/08; that on the 10th of June he applied for casual leave and same was duly granted by the Defendant from the 16/6/08 to enable him visit his family in the United States of America and also to renew some immigration documents. It was the case for the Claimant that on the 19/6/08, he sent an electronic mail to the Senior Administration Officer of the Defendant informing him of the difficulty he was having regarding the immigration documents in the United States of America and requested for his annual leave to enable him attend to the issues; that on the 27/6/08 the Senior Administrator Officer of the Defendant noted the request of the Claimant via an electronic mail stating that the period of leave would be treated as leave of absence without pay till the Claimant resumes; that he kept the Management of the Defendant informed throughout the process of renewing his immigration status in the Unites States by sending electronic mails to the Senior Administration Officer which was duly acknowledged; that on 22/8/08 he resumed his duty at the Defendant’s office in Lagos; that he informed the Management of his resumption via a letter dated the 22/8/08 and that he wrote a letter to the Defendant’s Management requesting for his outstanding salaries to be paid. Claimant further averred that that on the 28/10/08 he received a memo from the Management of the Defendant replying the above stated letter informing him that all his entitlements would be paid till June 2008 only; that it would treat the period of June 16/6/08 till 11/10/08 as leave of absence without pay in order to deter the Claimant from future occurrence overstaying granted leave; that by a letter dated 4/11/08 he replied the Defendant stating the reason for his overstaying and that it was due to unforeseen circumstances in processing his immigration documents which he duly communicated to the Management of the Defendant; that he resumed work on the 22/8/08 and this was also acknowledged by the Senior Administration Officer; that he was scheduled for stimulator on the 23/9/08 but same was aborted by the Defendant due to flight cancellation; that he also expressed his surprise at not being paid by the Defendant from his resumption date which was the 22/8/08 and why same was not communicated to him until 28/10/08; that he wrote another letter to the Defendant on 21/11/08 stating that he was yet to receive a response to his letter dated 4/11/08; that since resuming on the 22/8/08 other staff of the Defendant had been paid August, September and October salaries however Management of the Defendant refused to pay him in spite of all efforts he has put into serving the Defendant; that he then requested for his 2007 annual leave allowance withheld without reason, outstanding salaries and allowances from the 22/8/08 to November 2008; that thereafter he was paid part of his October and November 2008 salaries; that he was by a memo dated 29/1/09 directed by the Defendant Management to proceed on leave of absence without pay with effect from 23/1/09 pending the determination of a report of non-committal attitude towards the progress of the Defendant; that he replied the memo by a letter dated 4/2/09 requesting for his outstanding salaries and allowances to enable him proceed on the leave of absence imposed on him by the Defendant however the letter was never replied and that he wrote another letter to the Defendant on the 3/3/09 informing the Defendant that the conclusion and punishment prescribed was without due process; The Claimant further averred that he requested for his outstanding salaries and allowances to be paid however the Defendant failed, neglected or refused to reply his letter or pay him his outstanding salaries and allowances; that on the 9/3/09 he resigned his appointment from the Defendant taking into consideration that the forced leave of absence was without a resumption date and the Defendant was holding unto his salaries and allowances without any justified reason; that through his Solicitors he wrote the Defendant on 3/8/09 expressing displeasure on the unjust treatment of the Claimant by the Defendant and requesting for the outstanding salaries and allowances of the Claimant to be paid; that in spite of the various demands the Defendant has till date failed, refused and or neglected to pay him his outstanding salaries and allowances; that the terms of the contract under Article 3.14 of the Staff Handbook he is required to contribute 10% of his basic salary while the Defendant was required to contribute 15% for payment as contributory pension on behalf of the Claimant; that the Defendant was deducting the said 10% from his salary as pension allowance but never remitted same to a Pension Administrator throughout the duration of the Claimant’s employment. Under cross examination, CW1 stated that he sought casual leave to visit his family in Colorado USA and left Nigeria on 16/6/08; that his Passport is not one of the documents in the Court; that he did not have immigration issue before he left Nigeria; that the approval was for 7 days casual leave; that he started working with Defendant on 8/3/05 and that he applied for leave before and it was granted. Witness added that he was entitled to 21 working days as annual leave; that he is familiar with procedure for applying for annual leave; that annual leave is usually refused by the Defendant; that in his application for annual leave no number of days was stated; that in response to his application for annual leave Defendant stated that his absence would be regarded as leave without pay and that he did not object to that; that he had a salary account while with the Defendant; that the Bank statement for the account is not before the Court; that there is no acknowledgement of receipt on Exh. C15; that as Route Training Pilot, he acted as Instructor to Trainee Pilots; that he was Route Pilot when he applied for casual leave and that he was playing a very key role as Route Training Pilot in the Defendant company as his position was an operational position with Defendant. Claimant stated that he returned to Nigeria 27/8/08; that after he received Exh. C16 he requested for his outstanding entitlements; that he resigned from Defendant on 9/3/09; that he could not recall applying for annual leave in 2007; that he proceeded on leave without pay as directed by Exh. C16; that he could not recall how much he was entitled as leave allowance and that he could not recall his salary and allowances and that they are documented. The Defendant opened its case on 16/12/14 when it called one Rasheed Yusuff as its lone witness. DW1 adopted his witness written deposition dated 7/1/14 as his evidence in chief and tendered 14 documents as exhibits. The documents were admitted and marked as Exh. D1 - Exh. D14. Witness then prayed the Court to dismiss the claims of the Claimant and enter Judgment in its favour for the Counterclaims. The case of the Defendant as deducible from its Statement of Defense and Counter claim is that even though the Claimant applied for casual leave from 16/6/08 to 22/6/08 strictly for purpose of enabling him visit his family that the Claimant did not wait to obtain approval before he travelled to the United States of America; that the Claimant unilaterally embarked on a self approved leave and merely notified the Defendant of his absence via electronic mail dated 19/6/08 to which no supporting document from the United States immigration was attached to justify his absence from work without approval; that the Claimant did not at any material time inform the Defendant of any family emergency that necessitated his application for casual leave; that by the terms of the Claimant’s employment agreement he is entitled to only a maximum of 20 (twenty) working days in addition to public holidays as annual leave; that it was a requirement in the said agreement that all leave dates shall be agreed with the Defendant to suit operational requirements and accumulated leave days not taken as at when due would not be honored and deemed lost. The Defendant averred that the Claimant upon realizing he had not obtained prior approval before proceeding on casual leave sought to regularize his absence without leave by applying via electronic mail of 19/6/08 for his annual leave to be granted; that its electronic mail of 20/6/08 was never an approval of the Claimant’s request for annual leave as alleged or at all; that the Defendant by its electronic mail of 20/6/08 merely requested the Claimant to confirm a specified date when he would resume to enable it facilitate the processing of his request for annual leave; that the Claimant was informed at various times via electronic mail that the period of his absence would be treated as a leave of absence without pay until his resumption, which date the Claimant had not specified in his electronic mail of 19/6/08; that the Claimant had in response to the Defendant’s reply electronics mail of 20/6/08 stated that he was unable to give a specific resumption date as requested by the Defendant. The Defendant also averred that the Claimant was not only satisfied with the sanction stipulated by the Defendant for his continued absence without leave but accepted same without raising any objections thereto; that the Claimant being an undisciplined staff did not report for duty at the Defendant’s office in Lagos on 22/8/08 contrary to his letter of same date; that the Claimant only resumed on the 11/10/08, a period of almost 4 months; that by a memo dated 28/10/08, the Defendant informed the Claimant that he would be paid all his entitlements up until 16/6/08 only for overstaying the casual leave granted; that the period of his absence from 16/6/08 to 11/10/08 when he resumed would be reckoned as leave of absence without pay to deter him from future reoccurrence. The Defendant further averred that the Claimant has a long history of not only overstaying his leave but for also embarking on leave without obtaining official permission; that the Claimant within a period of employment of less than four years took a total of 6 casual leave; that the Defendant could not have paid the Claimant for a period he did not work or for absenting himself from work without permission; that the Claimant is not entitled to any pay for the period when he absented himself from work without a written permission; that the Defendant never received any letter from the Claimant dated 21/11/08 and that the said letter was prepared by the Claimant in anticipation of this suit; that the Claimant was asked to proceed on leave of absence without pay with effect from 23/1/09 pending the determination of the issue raised against him; that the Claimant responded to the memo by his letter dated 4/2/09 and did not raise any issue with the suspension without pay but merely requested that some alleged outstanding salaries should be paid by the Defendant to enable him proceed as directed; that it never received any letter form the Claimant dated 3/3/09 and that same was an afterthought prepared by the Claimant in anticipation of this suit. It was also the case for the Defendant that the Claimant resigned his appointment as Pilot with effect from 9/3/09; that it does not owe the Claimant any salary, allowance or any money at all and asserts that this suit is gold digging, mischievous and brought mala fide by the Claimant to get paid for work not done. Under cross examination, DW1 stated that he joined the Defendant on 1/8/94 as a Secretary; that based on his loyalty to the Defendant he was promoted to Human Resources Executive in 2005; that he holds a B.A. in French; that he is a Bilingual Secretary; that he went to University of Nigeria, Nnsuka for PGD in Public Admin and that he also attended Nigerian Institute of Management programs and Institute of Personnel Management and that in 2008/09 he was in Human Resources/Admin Department. According to the witness, for an employee to proceed on annual leave he must have worked for 12 months with Defendant; that approval of annual leave is subject to agreement between employee and the Defendant; that a staff with bad conduct may still be promoted with the hope that such staff will change; that he is not familiar with Exh. D2; that he is familiar with Exh. C7 dated 26/3/08 which is salary review for all staff of Defendant; that he is familiar with Exh. D6; that Schedule of simulation training is done by the Operations Department; that he did not think Claimant went for simulation training; that Claimant did not attend the training because he overstayed his casual leave for 4 months though it was for just one week and that as at 23/9/08 Claimant was still on his prolonged casual leave. At the close of trial, learned Counsel on either side were directed by the Court to file their final written addresses in accordance with the rules of Court. The final written address of the Defendant was filed on 6/3/15. It in learned Counsel canvassed the following 3 issues as apt for the just determination of this case - 1. Whether the Claimant has discharged the evidential burden of proof to be entitled to his reliefs. 2. Whether the Claimant is entitled to damages and cost of the action. 3. Whether the Defendant/Counterclaimant is entitled to its counterclaim having regard to the facts and circumstances of this case vis-a-vis the evidence adduced. On issue 1, learned Counsel submitted, relying on Sections 131 & 132, Evidence Act, 2011 and A-G, Bayelsa State v. A-G, Rivers State (2006)18 NWLR (Pt. 1012) 596 that the general concept of burden of proof in civil cases postulates the obligation placed by law on a Claimant to present evidence in proof of the facts in issue. On whether the Claimant resumed his duty at the Defendant's office on 22/8/08 to be entitled to salaries for the period between 22/8/08 and 10/10/08 Counsel submitted that parties are bound by their contract and that the duty of the Court is to simply give effect to that agreement, citing A.I. Investment Limited v. Afribank (Nig.) Limited (2013) NWLR (Pt. 359) 408. Counsel submitted that the Claimant proceeded on casual leave without the approval of the Defendant on 22/8/08 relying on Exh. C8; that as if that was not enough, the Claimant by Exh. C9 sought to prolong his leave by requesting for his annual leave yet by the terms of the contract between the parties all leave dates must be agreed with the Company to suit operational requirement. According to Counsel, although by Exh. C13, Claimant claimed that he resumed on 22/8/08 he did not tender his travel documents and under cross examination, he testified that he returned to Nigeria on 27/8/08. Counsel submitted that where a party gives contradictory evidence in Court, it is not the duty of Court to pick and choose which to believe as such evidence is unreliable, citing Fatuga v. Aina (2008)All FWLR (Pt. 398) 394 at 400. Counsel urged the Court to hold that the testimony of the Claimant is unreliable and resolve same in favour of the Defendant. Counsel referred to the evidence of DW1 who testified that as at the time Claimant claimed to have resumed, he was still on his prolonged leave and that he indeed resumed on 11/10/08 when he was scheduled for another simulator and that Defendant's memo dated 28/10/08 (Exh. C14) informed him of that fact. Counsel urged the Court to hold that the Claimant has not proved is assertion regarding the day he resumed from his prolonged leave and hence not entitled to the claim for salary. Learned Counsel added that Defendant repeatedly informed the Claimant that the period of his absence would be treated as leave of absence without pay and that knowing that he was not entitled to salary for the said period, the Claimant did not protest. On whether the Claimant is entitled to salaries for the period of December 2008 and January 2009 as well as Domestic Flight Allowance and International Flight Allowance as claimed, Counsel submitted that the law is trite that a substantive claim must be supported by pleadings citing Ishola v. U.B.N Limited (2005)6 NWLR (Pt. 922) 422 at 438 and Farasco Nigeria Limited & Anor. v. Peterson Zochonis Industries Plc (2010) LPELR-4142(CA). According to learned Counsel, in the instant case, the Claimant has not pleaded that he was owed December and January salaries for any particular year or at all; that he also failed to show by exhibits tendered that the Defendant owed him December and January salaries and neither has he stated the particular year he was owed January and December salaries. Citing Zenith Bank Plc v. Bankolans Investments Limited & Anor.(2011) LPELR-9064(CA) & Emmanuel Debayo v. Doherty (2009)1 NWLR (Pt. 123) 505, learned Counsel submitted that every relief sought must be clear, precise, quantifiable and be devoid of speculation. Counsel urged the Court to refuse this claim. Learned Counsel submitted further that assuming without conceding that the Claimant claims salaries for December 2008-January 2009, that would mean that Claimant lays claim to salaries for the period he was on compulsory leave without pay to enable the Management determine the allegation of non-committal attitude of the Claimant towards the progress of the Defendant. Counsel referred to the testimony of the Claimant under cross examination that he was on leave of absence without pay; that the suspension was to take effect from 29/1/09 and that the effect of leave of absence without pay is equivalent to suspension citing Longe v. F.B.N Plc (2010)6 NWLR (Pt. 1189) 60. Counsel urged the Court to find in favour of the Defendant. Arguing further. learned Counsel submitted that assuming without conceding that the Claimant pleaded facts in support of his claim for salaries of December 2008 and January 2009 that the law is trite that facts pleaded on which no evidence is adduced are deemed abandoned citing Oduwole v. West (2010)10 NWLR (Pt. 1203) 621 & Newsbreed Org. Limited v Erhomosele (2006)5 NWLR (Pt. 974). It was the argument of the learned Counsel that the Claimant tendered no evidence to back up his claim and that although the Claimant stated under cross examination that he has a salary Bank account into which his salary was paid, he failed to tender the statement of his account to support his claim. He urged the Court to find against the Claimant and in favour of the Defendant. Citing Section 167, Evidence Act, 2011, learned Counsel submitted that the law is trite that where evidence which could be produced is not produced, there is a presumption that the evidence if produced would be unfavourable to the person who withholds. Counsel thus urged the Court to hold that the Claimant intentionally and deliberately failed to tender his statement of account because he is aware that if it had been produced it would be unfavourable to his case as he knows that his December salary and January salary were paid. Learned Counsel relied on Lawson v. Continental Company Nigeria Limited (2002) FWLR (Pt. 109) 1736 at 1767. Respecting the claim for Domestic Flight Allowance and International Flight Allowance, learned Counsel submitted that the Claimant failed to plead any facts to support his claim. According to the learned Counsel, the Claimant's pleadings did not contain the period for which the Claimant is making claims; for which particular flights he was owed the allowances; how many flights he was owed; where the aircraft took off and the destinations of the flights; how the Claimant came about the figures quoted and whether it was for only one flights or accumulated flights. In the alternative Counsel submitted that there is no evidence on record to show that the Defendant owes the Claimant Domestic and International Flight Allowances. Learned Counsel again restated his earlier submission that the Claimant failed to tender his salary Bank statement of account to prove that he was not paid domestic and international flights allowances. According to learned Counsel, Claimant has failed to discharge the burden of proof required of him relating to this claim and he urged the Court to so hold. In much the same vein, Counsel argued that the Claimant also failed to tender his Bank statement of account to prove that he was not paid his contributory pension allowance and referring to section 167(d) of the Evidence Act, 2011. Counsel therefore urged the Court to hold that the Claimant has failed to prove his entitlement to any of his claims. Issue 2 is whether the Claimant is entitled to Damages and cost of the action. Learned Counsel submitted that the law is trite that the object of an award of damages is to compensate the plaintiff for the damage, loss or injury which he suffered and which must be attributable to the breach of some duty by the Defendant; that the breach must be for loss arising from breach of contract; must be real and not speculative or imagined and that such award of damages is at the discretion of the Court. Counsel cited Fagge v. Tukur (2007)All FWLR (Pt. 387) 876 at 900 & G.K.F Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009)13 NWLR (Pt. 1164) 376. Counsel submitted that the Claimant failed to prove that the Defendant breached any duty or committed any wrong citing Eronini v. Iheuko (1989)2 NSCC (Pt. 1) 503 at 513. Counsel urged the Court to so hold. Issue 3 as set down for determination by learned Counsel is whether the Defendant/Counter-Claimant is entitled to its Counterclaim having regard to the facts and circumstances of this case vis-a-vis the evidence adduced. Counsel reiterated the position of the law that a counterclaim is a claim by the Defendant against the Claimant in the same proceedings; that it is an independent action and that the Counter-Claimant has the burden of proving the counter-claim to be entitled to Judgment citing Esoho v. Asuquo (2007)All FWLR (Pt. 359) 1355 at 1369 & Anozia v. A.G Lagos State (2010)15 NWLR (Pt. 1216) 242. According to Counsel, DW1 in paragraph 14 of his statement on oath dated 7/1/14 clearly stated the periods the Defendant to Counter-claim was absent from duty and the periods he overstayed granted leave and that that piece of evidence was not challenged as cross examination was not led. Citing Gaji & Ors. v. Paye 8 NWLR (Pt. 823) 583, Counsel submitted that failure to cross examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Counsel referred to Exh. D11 where the Claimant overstayed leave granted by 8 working days; Exh. D12 where the Claimant overstayed granted leave by one week, Exh. D13 where the Claimant overstayed granted leave by 14 days and Exh. D14 where the Defendant overstayed granted leave by one week. Counsel submitted that by these Exhibits the Counterclaimant has discharged the burden of proof on him, citing section 133, Evidence Act. Learned Counsel pointed out that the Defendant to counterclaim admitted that his position in the Counter Claimant company is key and yet he exhibited a checkered and ceaseless record of overstaying leave and being absent from work without approval and that he did this in absolute disregard to the losses that the Counterclaimant was consistently incurring due to his failure to show up at work and as a result causing unreasonable delay and/or disruption of flights which caused monetary loss to the Counter-Claimant. Learned Counsel urged the Court to hold that the Counter-Claimant has discharged its burden of proof and is entitled to its reliefs against the Defendant to its Counter-claim. Finally, learned Counsel urged the Court to dismiss the claims of the Claimant and grant the counter-claims of the Defendant/Counter-claimant. The final written address of the Claimant was dated and filed on 9/4/15 in which learned Counsel set down the following 2 issues for the just determination of this case - 1. Whether or not the Claimant has proven his case to be entitled to his claims. 2. Whether or not the Defendant/Counter Claimant is entitled to its counter-claim in the circumstances of this case. On issue 1, learned Counsel submitted that the onus of proof rests on the party, whether Plaintiff or Defendant who will fail assuming no evidence has been adduced on either side citing Sections 131 & 132, Evidence Act, 2011 and Tewogbade v. Akande (1998) NMLR 404 at 408 & Garba Aiki v. Gabriel Idowu (2006)9 NWLR (Pt. 984)47 at 67. Counsel submitted that documentary evidence is the best form of evidence as it is to be used as hangers from which to assess oral testimony citing Whyte v. Jack (1996)2 NWLR (Pt. 431) 407 at 440. On this note learned Counsel argued that by Exh. C13, dated 22/8/08, Claimant had duly notified the Defendant of his resumption on the same date; that same was supported by Exh. C15, Exh. C18 and Exh. C19 and that all this was not denied by the Defendant. Counsel noted that Exh. C18, C19 and C21were received and acknowledged by the Defendant and yet failed and or neglected to reply to same. This attitude, according to learned Counsel, amounts to an admission citing Maradun v. Tambuwal (2015) LPELR-24443(CA). Counsel urged the Court to so hold. Respecting the non-payment of salaries due and other entitlements, learned Counsel submitted that having established that the Claimant resumed worked on 22/8/08, it follows naturally that he is entitled to his unpaid salaries and other entitlements as shown in his claim. According to Counsel, by Exhibits C8, C9, C10, C11, C12 & C13, it is apparent that the Claimant was on approved leave between 22/6/08 and 21/8/08 on clear terms that the said period shall be reckoned as being without pay and that for the Defendant to argue that the leave was unapproved in view of the documentary evidence is misplaced. Learned Counsel referred to paragraph 30 of the Claimant's statement of facts and submitted the Defendant has not denied receiving Exh. C21 and not having replied to same, Counsel urged the Court hold that the content of same is admitted. On suspension of the Claimant, learned Counsel submitted that the suspension was without following due process; that before suspension can ensue, Defendant must have issued 3 consecutive warnings to an offending staff. Counsel referred to paragraphs 3.22 and paragraph 3.23 of Exh. C3. Counsel submitted that the Defendant did not issue any warning to the Claimant prior to suspension as required and prescribed by Exh. C3 - the Defendant Staff Handbook. Counsel, citing Osu v. Nigerian Railway Corporation (1978)10-12/CCHCJ 326, submitted that where there is a right to suspend, the terms of the right must be complied with in carrying out a suspension otherwise the suspension is wrongful. Learned Counsel added that the failure or refusal of the Defendant to pay the Claimant his earned salaries and entitlements amounts to a substantial breach of the contract of employment; that the importance of wages has been statutorily recognised citing Sections 1, 3(f) and 15 of the Labour Act, Laws of the Federation of Nigeria, 2004 and that by Exh. C16, the Defendant has shown that it lacks regard for human dignity and labour when it purports to to summarily suspend an employee and the same a retrospective effect so as to deny the Claimant the salary due to him for January, 2009. Learned Counsel urged the Court to hold that the Claimant has satisfied the evidential burden required to establish his claims and that the Defendant having not proven otherwise should be held liable to pay the Claimant's dues and damages as claimed. On issue 2, learned Counsel stated the obvious that a counter claim is an independent action and that the Counter claimant must prove its case to succeed. Counsel submitted that the Counter claimant adduced no evidence in support of his counter claim and that averments in pleading do not translate to proof. Counsel cited Idris v. All Nigeria Peoples' Party & Ors. (2008)8 NWLR (Pt. 1088) 1 at 97. Counsel urged the Court to dismiss the counter claim with substantial cost. Counsel argued further that the Counter claimant did not plead Exh. D11-D14 nor did he specifically associate them with its pleadings for the purpose of establishing its counterclaim but rather merely dumped documents on the Court. Counsel, citing Ucha v. Elechi (2012) All FWLR (Pt. 625) 237 at 259 submitted that on no account must Counsel dump documents on a trial Court and no Court would spend precious judicial time linking documents to specific areas of a party's case. On this note learned Counsel urged the Court to dismiss the Counterclaim evidence not having been led in support of same. In the alternative, learned Counsel submitted that, assuming Exh. D11-D14 established the counterclaim, the Court should expunge same as the said exhibits were made in anticipation of this suit. Finally on this note, learned Counsel submitted that the counter claimant whose losses are in the nature of special damages must be specifically and strictly established by credible evidence the special damage suffered and that Exh. D11-D14 do not in any way show the details or particulars of any loss attributable to the Defendant. This is more so according to Counsel that the Counter claimant failed to place before the Court any document which can attest to the various flight delays, disruption and/or cancelations as claimed and which in turn occasioned the losses. Counsel cited UBN v. Chimaeze (2014) LPELR-22699 where Muhammad, JSC, quoting Neka B.B.B Manufacturing Co. Limited v. ACB Limited (2004)2 NWLR (Pt. 858)521 at 540 stated thus - '' ... It is trite law that where the claimant specifically alleges that he suffered special damage he must prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable the loss or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fraction''. Counsel urged the Court to hold that the counterclaimant has not proved his counterclaim. Respecting Five Million naira claimed as general damages, Counsel submitted that it is the law that general damages flows as a consequence of a legal injury, wrong or established breach; that a party claiming same has the onus of proving facts that will enable the Court decide its entitlement to such damage and that in the instant case, counter claimant has failed to prove by evidence any wrong done to it for which damages is sought. Learned Counsel urged the Court to dismiss the counterclaims for being frivolous, malicious, unmeritorious and unfounded. On 4/5/15, the Defendant filed a 21-page reply on points of law and set down a lone issue for determination thus - Whether or not the Claimant has proven his case as to be entitled to his claims. I read the said reply on points of law. I found nothing new or novel in it to warrant inclusion in this Judgment. I may however say it here again that the provision in the Rules of Court for reply address is not meant to be utilised as an opportunity to have a second bite at the cherry. It is certainly not an avenue for a Counsel to repeat all his hitherto submissions. That, to me, is what the learned Counsel to the Defendant/Counterclaimant had done by his said reply on points of law. This Judgment was initially scheduled for delivery on 23/7/15. Unfortunately, the annual vacation of Judicial Officers across the country commenced during the period. Thus though the Judgment was ready for delivery on the date slated, it could not be delivered for the reason stated. This necessitated the issuance of Hearing Notices to parties and learned Counsel to attend Court today for this Judgment. I have carefully considered all the processes filed, the evidence led, the written submissions of learned Counsel, the authorities cited both statutory and judicial and evaluated all the exhibits tendered in this case. I also watched the demeanor of the witnesses at trial and having done all this, I set down these two issues for the just determination of this case thus - 1. Whether on the basis of the evidence led, the Claimant has proven his case to be entitled to the reliefs sought. 2. Whether the Defendant/Counterclaimant has successfully proved its counterclaims to be entitled to all or some of them. On issue 1, the nature of this country's adjudicatory procedure as inherited from the British is that to be entitled to a favourable disposition by the Court, an applicant must adduce sufficient, cogent, credible and admissible evidence in proof of his claim. This is smartly expressed by the phrase he who asserts must prove same, see Intercontinental Bank Plc v. Dayekh Brothers Limited (2014) LPELR-CA/K/321/2012. The duty of the Court is adjudication while that of the Bar is advocacy. It is thus that not only will the Court not grant a relief sought but not proved, the Court will also not make the case of a party for it. In this case, the claims of the Claimant are broadly 4. The first is for the sum of Six Million, Six Hundred and Twenty Four Thousand, Six Hundred and Thirty Seven Naira Twelve Kobo (N6,624,637.12) being the total sum for the followings: i. August Salary (22nd-31st) N370,389.31; ii. September Salary (1st–30th) N1,128,000'; iii. October Salary(1st -10th) N370,849.31; iv. December salary(1st-31st) N1,128,000; v. January salary(1st–29th) N1,128,000; vi. 2007 Leave Allowance N217,219.67; vii. Contributory pension allowance N2,274,421 and viii. Domestic flight allowance N7,225. An important issue which ought to be resolved at this stage and which is critical to this case is when actually did the Claimant resume from his leave? While the Claimant claimed to have resumed on 22/8/08, the Defendant contended that the Claimant indeed resumed in October. I find the content of Exh. C13 both instructive and germane. It was a letter by the Claimant, dated 22/8/08 and addressed to the Senior Administration Officer of the Defendant. Paragraph 2 of same simply - ''This is to inform that I have returned to resume duty from today''. It was acknowledged received on the same date and one Fleet Capt. B.737 was copied. There appears to be no controversies as to whether an Officer of the Defendant of truth received that document. I considered the submission by learned Counsel to the Defendant that the Claimant did not tender his travel documents. I however find same to be more of a technical issue than interest of justice based. A party is at least entitled to define his case and set out to prove same by whatever evidence he chooses. It is only left to the Court to determine whether it is satisfied with the evidence led. I am satisfied, cognisance of Exh. C13, dated 22/8/08 and acknowledged same day by an officer of the Defendant, that the Claimant resumed from his leave on 22/8/08 and I so hold. Learned Counsel to the Defendant drew my attention to part of the testimony of the Claimant, under cross examination, stating that he resumed work with the Defendant from his leave on 27/8/08. The Court was thus urged to reject the evidence of the Claimant on the basis of there being contradiction in same. The law is trite that when put on an imaginary scale of reliability, the content of a document which speaks for itself is much more reliable than oral testimony, see Afemai Microfinance Bank Limited v. SEACOS Nigeria Limited (2014) LPELR-CA/B/98/2012. In any event, it is very unusual for a parole evidence to be permitted to tinker with the content of a clear, precise and unambiguous document, see Rangaza v. Microfinance Company Limited (2013) LPELR-CA/K/138/2011. In much the same vein I reject the argument as put forward. I find Exhibits. C13, Exh. C14, Exh. C15 and Exh. C17 as supporting the claims of the Claimant respecting claims i-vi. I thus grant same as sought. Relief vii & viii are for Contributory Pension Allowance. Unfortunately, the Claimant adduced no evidence in proof of these heads of claim. Agreed, averments were made relating to them in the pleadings. The law is however trite that averments in pleadings do not translate to proof of same. See Section 131, Evidence Act, 2011. See also Agboola v. United Bank for Africa Plc & Ors. (2011) LPELR-9353(SC). Averment is one thing. Proof of averment is a different ball game entirely. I examined Exh. C2 which is the Employment Agreement dated 8/3/05 between the Claimant and the Defendant. While I find no provision relating to contributory pension, there is a Flight Allowance per Flight Hour put at =N=2,250. The Claimant however led no evidence as to how he came about his claim of =N=7,225 as Domestic flight allowance. Regarding the contributory pension allowance, Claimant could have at least procured and tendered a statement of his pension account from his Pension Funds Administrator to support his claim that the contributory pension deductions and that of his employer were not remitted as expected. Not having been proved therefore, the claims for contributory pension allowance and Domestic flight allowance are refused and dismissed. The second claim of the Claimant is for the sum of Four Thousand Three Hundred and Seventy Five Dollars, Fifty Seven Cents ($4,375.57) being the sum of the Claimant’s international flight allowance. Among others, Exh. C2 provides for International Flight Allowance per Flight Hour and put the amount at $20. The Claimant's claim for this allowance is empty and without a support base. No shred of evidence was adduced at trial as to how the Claimant arrived at the sum claimed for this allowance. The Court of Law is not a place to simply ask and to receive. To receive from the Court therefore, the asking must be backed by credible and admissible evidence. Not having been proved, this claim is refused and dismissed accordingly. The Claimant sought the sum of Five Million Naira as damages against the Defendant. The law relating the grant of damages is relatively and fairly settled. Damages may be either general or special in nature. According to Fabiyi, JSC, in UBN Plc v. Ajabule & Anor. (2011) LPELR-SC.221/2005 - ''General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages''. On the other hand, ''Special damages'' in the words of Nwodo, JCA in Aluminium Manufacturing Company of Nigeria Limited v. Volkswagen of Nigeria Limited (2010) LPELR-CA/L/414/2003 ''are those damages which are given in respect of any consequence reasonably and probably arising from the breach complained of. They impute pecuniary losses which have crystallized in terms of cash and values before trial. Such special damages must be specifically pleaded and proved strictly. What is required to establish special damage is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head''. Learned Counsel to the Claimant did not specify whether the claim for damages is for general or special damages. Counsel also did not make even a passing reference to this head of the claim for his client in his final written address. There is therefore no basis upon which this Court can make a finding for damages in favour of the Claimant. There is certainly no sufficient information and material placed before the Court to support same. Thus, the claim for damages is refused and dismissed accordingly. The final relief sought by the Claimant is for the cost of this action. It is trite and has indeed become common place that cost follows event. Indeed, Order 21 Rule 5, National Industrial Court Rules, 2007 empowers the Court to indemnify a successful party for the expenses to which the party has been necessarily put in the proceedings. The claims of the Claimant having succeeded, in part, the sum of One Hundred Thousand Naira (=N=100,000.00) is awarded in favour of the Claimant and payable by the Defendant as cost of this action. The Defendant also sought and applied for the following counterclaim from the Claimant - a. The sum of Fourteen Million, Seven Hundred Thousand Naira (=N=14,700,000) being the total loss suffered by the counterclaimant as a result of unreasonable delay and /or disruption of flight as per the following: i. 10 days of overstayed leave N3,200,000; ii. Absence from duty between 13/11- 22/11/05 N4,100,000; iii. Absence from duty between 22/05 - 05/06/06 N2,600,000; iv. Absence from duty between 19/02 - 28/02/07 N2,100,000; Absence from duty between 19/07 - 26/07/07 N1,500,000; vi. Absence from duty between 17/01 - 29/01/08 N1,200,000; b. The sum of N5,000,000 Five Million Naira) only as claims for damages against the Claimant/Counter Defendant and c. The cost of this counter claim. On the counterclaim which is the second issue for determination, the law is settled that a counterclaim is akin to a separate and independent action instituted by the Defendant/Counter claimant against the Claimant as Defendant to same. Like every other civil action therefore, the Counter claimant is under an obligation to prove his counterclaim by adducing sufficient credible, cogent and admissible evidence. Failure to discharge this burden entitles the Court to dismiss same. The basis of this counterclaim is that during the period the Claimant was absent from work without approved leave, the Defendant/Counterclaimant suffered loss resulting from unreasonable delay and/or disruption of flights. In proof of this, the Defendant/Counterclaimant tendered and relied on Exh. D11, Exh. D12, Exh. D13 and Exh. D14.The Exhibits were dated 13/3/07,1/8/07, 13/8/08 and 12/6/06. The exhibits contained nothing else other than request for explanation from the Claimant as to why he overstayed his approved leave. Could it be said that these exhibits are proof of the counterclaim sought? The answer to this must surely be in the negative. It would have certainly assisted the Court if the Counter Claimant had provided details of how it arrived at the figures stated. For instance, when were the flights unreasonably delayed or disrupted? What is the cost of such unreasonable delay and /or disruption? One would have thought that such event would be documented and record kept. Such would have assisted the Court in making a finding in favour of the Counter Claimant. It is not the duty of the Court to make the case of a party for it. In the absence of credible evidence to support its counter claim for Fourteen Million and Seven Hundred Thousand Naira I hold same not proved. I refuse and dismiss same accordingly. The second and third heads of counter claims are for the sum of Five Million Naira only as damages against the Claimant/Defendant to counter claim and the cost of the counter claim. The main counter claim which is for Fourteen Million and Seven Hundred Thousand Naira has failed. That main counter claim is the foundation upon which the remaining two counter claims rest. It is the pillar that holds the remain counter claims together. They thus stand and fall along with the 1st counterclaim. A house built on and/or supported by weak pillars will collapse sooner than later. Having therefore been refused and dismissed, there is no basis upon which the Court may either grant damages or even the cost of the counter claim. After all, the Court will only award cost in favour of a successful party. Thus the counter claims for Five Million Naira as damages and the cost of the counter claim are refused and dismissed accordingly. Finally, for the avoidance of doubt and for the reasons as stated in this Judgment, 1. The claim for the sum of Three Hundred and Seventy Thousand, Three Hundred and Eighty Nine Naira and Thirty One Kobo (=N=370,389.31) only as salary for 22/8/08 - 31/8/08 is granted. 2. The claim for the sum of One Million, One Hundred and Twenty Eight Thousand Naira (=N=1,128,000.00) as salary for September 2008 is granted. 3. The claim for the sum of Three Hundred and Seventy Thousand, Eight Hundred and Forty Nine Naira and Thirty One Kobo (=N=370,849.31) as salary for 1st - 10th October 2008 is granted. 4. The claim for the sum of One Million, One Hundred and Twenty Eight Thousand Naira (=N=1,128,000.00) only as salary for December 2008 is granted. 5. The claim for the sum of One Million One Hundred and Twenty Eight Thousand Naira (=N=1,128,000.00) only as January 2009 salary is granted. 6. The claim for the sum of One Million, One Hundred and Twenty Eight Thousand Naira (=N=1,128,000.00) only as 2007 Leave Allowance is granted. 7. The claim for the sum of Two Million, Two Hundred and Seventy Four Thousand, Four Hundred and Twenty One Naira (=N=2,224,421.00) only as Contributory Pension Allowance is refused for lack of proof by cogent and credible evidence 8. The claim for the sum of Seven Thousand, Two Hundred and Twenty Five Naira (=N=7,225.00) only as Domestic Flight Allowance is refused and dismissed for lack of proof by credible and cogent evidence. 9. The claim for the sum of Four Thousand, Three Hundred and Seventy Five Dollars and Fifty Seven Cents ($4,375.57) only being the sum of Claimant's international flight allowance is refused and dismissed for lack of proof 10. The claim for Five Million Naira (=N=5,000,000.00) as damages against the Defendant is refused and dismissed. 11. The sum of One Hundred Thousand Naira (=N=100,000.00) is awarded in favour of the Claimant and payable by the Defendant as cost of this action. 12. All the Counter claims are refused and dismissed for lack of proof. All the terms of this Judgment shall be complied with within 30 days from today. Judgment is entered accordingly Hon. Justice J. D. Peters Presiding