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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. OYEBIOLA.O DATED 28th OF SEPTEMBER, 2015 SUIT NO: NICN/LA/250/2013 BETWEEN ENGR VINCENT CHIEDU - CLAIMANT AND SUBARU MOTORS NIGERIA LIMITED - DEFENDANT REPRESENTION- O.O Unuigbe with him are O.A Rogers, Bolanle Oluwole for the claimant Funke Onakoya (Mrs) with her is Zainab Bello Miss for the defendant JUDGMENT A complaint dated 16th day of May, 2014 was filed by the claimant against the defendant praying for the following reliefs: The claimant’s claim is for a liquidated sum of N6,026, 042.70 (Six Million Twenty Six Thousand, forty-two Naira, Seventy Kobo) being the claimant’s entitlement due to him from the defendant, made up as follows; The sum of N1, 640,571.42 (One Million Six Hundred and Forty Thousand Five Hundred and Seventy one Naira, Forty two kobo) being the claimant’s 13thmonth salary for 2010, 2011 and 2012. The sum of N715, 054 (Seven Hundred and Fifteen Thousand and Fifty-Four) being the claimant’s outstanding monthly salary due after deductions. The sum of N3, 670,416.67(Three Million Six Hundred and Seventy Thousand, Four Hundred and Sixteen Naira Sixty Seven kobo)being the claimant’s due transport allowance for the period of November, 2009 to January, 2013. In the alternative, the claimant claims the Subaru legacy 2.0 ATF with registration no DY 291 APP which the defendant gave to the claimant in lieu of payment of the claimant’s transport allowance. 21% interest on the aforesaid sums from the date each sum became due until fully liquidated. It is claimant’s case that he was employed by the defendant vide a letter dated 19th October, 2009 as the Head of the defendant’s Technical Unit and his appointment was confirmed by a letter dated 28th January, 2011. He averred that he was not issued a copy of the staff policy manual/staff handbook notwithstanding his request for same. That by the agreed terms of his employment as Head of the Technical unit, his annual remuneration is; Basic salary N2,946,960.00 Housing Allowance N1, 841850.00 Transport Allowance N1,150,000.00(given as company car) Lunch Allowance N736, 740.00 Clothing Allowance N 736,740.00 Leave Allowance N 368,370.00 (Paid annually) 13th Month Salary N 546,857.00(Paid annually in December). Driver’s Allowance N 300,000.00 Total N8,627,517.00 (Eight Million, Six Hundred and Twenty Seven Thousand, Five Hundred and Seventeen Naira). He averred that as a result of his hard work his was appointed by virtue of a letter dated 1st of April, 2011 as a Health and Safety Manager of the defendant. He stated that despite his dexterity and accountability at work, he was exploited by the defendant and the defendant refused to pay him any salary or emolument for services rendered by him as health and safety manager. That the defendant failed to remit the deducted pension contribution from the claimant’s salary to his pension fund administrator while he was in employment but did so long after the claimant has resigned from the claimant’s employment. That during the course of his employment, the defendant refused to pay some of his entitlement as follows; 13th month salary for the period of 2010,2011 and 2012, in the total sum of N1,640,571.00 Monthly salary due from the defendant for the months of November and December, 2012 and January, 2013 (pro rata) after deductions in the sum of N715,054.70. Transport Allowance for the period of November, 2009 to January, 2013 at the rate of N95,833.00 per month, in the total sum of N3,670,416.67. Pension Fund payments were not made as at when due. No entitlement was paid for the said position of Health and safety Manager. The claimant avers that by virtue of his letter dated 10th October, 2012 to the defendant, he resigned his appointment by the terms of his employment, by issuing the defendant a three months notice by virtue of a letter dated 10th of October, 2012 and the same was accepted on the 7th of January and effective on the 9th of January, 2013 not 10th October, 2012 as erroneously stated in his letter. That claimant in consequent of his resignation demanded his entitlement from the defendant but erroneously dated his letter 10th of January, 2012 instead of 10th of January, 2013. In response, the defendant, wrote a letter dated 25th January, 2013 to the claimant rejecting some of the claimant’s claims particularly relating to the claimant’s transport allowance and demanded that the claimant return to it amongst other the Subaru legacy 2.0 ATF with registration No DY 291 APP (The car) which the defendant had given to the claimant in lieu of paying the claimant’s transport allowance. Claimant averred that on the 8th of March, 2013 he had a meeting with the defendant but the meeting did not resolve any matter. That the claimant attempted to return the car and receive his accumulated transport allowance in lieu of the car but the defendant refused to take delivery of the car or pay him his due entitlements. That owing to the defendant refusal to pay the claimant his entitlement, claimant instructed his solicitors to formally demand same from the defendant dated 4th April 2013. Claimant averred that sometime in April, 2013 the defendant wrote a petition against the claimant to the Zone 2 police command onikan Lagos on the grounds that the claimant detained and refused to return the car to the defendant and thus the car was seized from the claimant. He averred that the refusal of the defendant to pay his salaries and entitlement up till this day has caused him trauma and inability to adequately cater for his family as supposed. The claimant during trial testified for himself and tendered in evidence documents which were admitted in evidence and marked Exhibits VC1-VC10 The defendant on the other hand admits paragraph one of the claimant’s statement of claim to the extent that the claimant worked with it from 2nd of November, 2009 to 9th of January, 2013. That a staff hand book is yet to be codified but its policies are made available by way of resolution circulated to its employees from time to time. Defendant stated that the claimant’s integrity is in doubt in view of the claimant’s penchant of converting the funds due to the defendant for his personal use. That his nomination as Head of committee for health and safety did not add any additional remuneration. Defendant denies the averment of claimant and states that it has remitted the claimant’s pension to his pension fund administrators. That the claimant is not entitled to 13th month for the year 2010 because his employment had not been confirmed and 13th month salary for the years of 2011 and 2012 were not paid in view of the fact that same is based on profit realized by the defendant and the defendant did not realise profit those years due to the economic recession and the inability of staffs to meet up with their various target. That claimant’s annual salary were regularly paid and the transport allowance is not monetized but given in form of the use of a company car which was at the full disposal of the claimant, fuelled and maintained by the defendant for the duration of the claimant’s employment. Defendant averred that pursuant to the claimant resignation on the 7th January, 2013, it calculated his outstanding salary to be the sum of N715,054.70 representing his November and December, 2012 salary less the sum of N71,925.00 misappropriated by the defendant. The claimant by a letter dated 10th of January, 2013, listed and returned the defendant’s property in possession but failed to return the Subaru legacy DY291 APP and Subaru SSM III Diagnostic Scan equipment held in his custody. The defendant by a letter dated 25th of January, 2013 agreed to pay the claimant the sum of N715, 054.70 and the 13th month for the years of 2011 and 2012 upon remittance of its property in the claimant’s custody. Defendant denies owing the claimant any transport allowance. The claimant by a letter dated 4th of February, 2013 accepted that his outstanding salary is N715, 054.70 and also admitted receiving Subaru SSM III Diagnostic Scan equipment from the defendant.That upon another demand for the defendant’s property, Subaru SSM III Diagnostic Scan equipment from the claimant, he reported the matter to bar beach police station who invited the Executive Director to its office. The defendant denies having any knowledge of the claimant visiting its premises on the 21st day of March 2013 with intent to return the Subaru legacy DY291 APP. Upon the failure of the claimant to return the defendant’s property, that is the car from 10th of January, 2013 till 2nd April, 2013 calculated and demanded the sum of N1,660,000.00 as sum to be paid by the claimant at the total rental value for unlawful detention. That in refusal to pay the sum of N1, 660,000.00 by the claimant the defendant on the 4th of April, 2013 wrote to the claimant calculating his final entitlement as N1, 808,768.70 less N1660,000.00 being the rental value in use of the car. The claimant upon return of the car was issued the sum of N148, 768. That claimant’s claims are speculative and gold digging. He urged the court to dismiss same in its entirety. The defendant on the 21st of June, 2013 filed a counter claim against the claimant wherein he claims that; 1. A declaration of this Honourable court that the claimant/ defendant to counterclaimant is indebted to the defendant/ counter claimant in the sum of N1660,000.00 being the rental value of the illegal use of the Subaru legacy DY291 APP for 83 days after his resignation from 10th January, 2013 to 2nd April, 2013 at the rate of N20,000 per day. 2. A declaration that the defendant/counterclaimant validly deducted the said sum of N1660,000.00 from the final entitlement of the claimant/ defendant to the counterclaim. 3. An order of the court mandating the claimant/defendant to counterclaim to release the Subaru SSM III Diagnostic Scan equipment in his custody to the defendant/counterclaimant alternatively that the claimant defendant to counterclaim pay the sum of N357,827.71 being the value of the Subaru SSM III Diagnostic Scan equipment. 4. Interest on the sum of N357, 827.1 being the value of the Subaru SSM III Diagnostic Scan equipment at the rate of 20% per annum from January, 2013 until judgment is delivered and thereafter at the rate of 15% perannum until the entire sum is liquidated. 5. Cost of effecting mechanical and body repairs to the Subaru legacy DY291 APP during the period of 83 days form 10th January, 2013 to 2nd April 2013 while in claimant’s custody in the sum of N1, 364,896.33. 6. Cost of this action. The defendant during trial testified through its Executive Director one Mr. Akinyonbo Olugbenga and tendered in evidence documents which were admitted in evidence and marked Exhibits AO1- AO21. The claimant on the 23rd of August, 2013 filed a reply to statement of defence and defence to counter claim wherein he averred that his employment with the defendant was regulated by the letter of employment which also makes provision of the staff handbook and not resolutions which are at conflict with the terms of his contract of employment. That at no time did he convert the defendant’s funds to himself and in denial of the defendant’s assertion, he was duly appointed as the defendant’s health and safety manager and that the terms and conditions for the appointment are clearly stated in the letter. He stated that the 13th month salary that was unpaid to the claimant was not based on his being confirmed or exceeding sales or performance targets or any other extraneous reason as the salary is an unconditional benefit. That his salary was never paid regularly and the Subaru legacy DY 291APP given to him was meant to be in lieu of payment of his transport allowance as stated in his letter of employment. That the maintenance of the car during the course of the claimant’s employment by the defendant was for the furtherance of the defendant’s business. He denied the assertion of the defendant and averred that at the material times Subaru SSM III Diagnostic Scan equipment has been in the possession of the Managing Director of the defendant. That he never admitted that his outstanding salary was N715, 054.70 and he never reported the defendant to the police but approached the Bar beach police station to provide an escort to witness the return of the defendant’s car. He stated that the letter dated 15th of March, 2013 never made mention of the Subaru SSM III Diagnostic Scan equipment but stated that he should return the car for his terminal benefits to be paid. The Executive director refused to collect the car on the grounds that he was not aware of any letter dated 15th of March, 2013 nor has he being instructed to authorise any amount to be paid as terminal benefit. Claimant averred that instead of the defendant to respond to his letter dated 21st of March 2013 resorted into using the police to seize the car from him and demanding the sum of N1, 660,000.00 as unlawful use and detention of the car and at no point did he enter into any rental agreement with the defendant but he held unto the car as a lien for his unpaid entitlement that is due. He stated that the letter dated 4th of April, 2013 written by his solicitors was not a response to the defendant’s letter which was dubiously backdated to 2nd of April, 2013.That the defendant is seeking avenue to diminish its payment obligations to the claimant. The claimant/defendant to counter claimant in defence to the counter claim denies that the Subaru SSM III Diagnostic Scan equipment is in his possession as same was returned to the counterclaimant upon his resignation. He denies refusing to return the car in his possession as he tried to return same on the 19th and 21st of March, 2013 in order to resolve the matter amicably. That the counterclaimant instead petitioned the police who seized the car from the claimant and claiming the sum of N1,660,000.00 at the rate of N20,000.00 per day for 83 days. He averred that in his employment letter, it stated that he would be given a car in lieu of his transport allowance which was given in the sum of N1, 150,000.00 and that was the basis why he kept the car after his resignation and the counterclaimant unilaterally and dubiously deducted the sums it claims to have been removed from the claimant’s entitlement. He denies receiving the sum of N148, 768.00 or any other sum from the counterclaimant. He denies the liability for any claimed damages from the counterclaimant with regards to the car as this is just another ploy for the counterclaimant not to pay him his entitlement. Claimant urged the court to dismiss the counter claims of the defendant with cost. The defendant on the 25th of September, 2013 filed a reply to the defence of the counterclaim where it averred that upon claimant’s resignation on the 7th of January, 2013 his terminal benefit were calculated and he was requested to handover all defendant’s properties in his possession including the car and Subaru SSM III Diagnostic Scan equipment. Defendant denies knowledge of acknowledging the receipt of Subaru SSM III Diagnostic Scan equipment from the clamant as same was never returned to it by the claimant. That he never attempted to return the defendant’s official car given to him. That reliance was only placed on the rental commercial rate for car hire services using the rates to determine the going rate for the hire of a vehicle such as that of the defendant for a period of 83 days of continuous use after resignation. It denies that its letters dated 2nd of April, 2013 and 11th March, 2013 were back dated though dates of delivery to the claimant vary. Defendant averred that it has legal right to deduct any outstanding debt from the claimant and that the balance of N148, 768.70 was delivered to the claimant through the Nigerian police. That the damages to the car were in form of damages to the body parts of the vehicle due to reckless use by the claimant and lack of maintenance during the period of unlawful detention. The defendant counter claimant urged the court to hold in its favour. The defendant on the 17th November, 2014 filed its written address wherein it raised two issues for the court’s determination; 1. Whether the claimant is entitled to the reliefs as claimed in the statement of claim. 2. Whether the defendant/counterclaimant is entitled to the reliefs as contained in the counterclaims. On issue one, counsel posited that it is trite that he who asserts must prove and that burden of proof lies on the person that will fail if no evidence at all were given on either side. He cited Sections 135 and 136 of the Evidence Act, 2011; and the case of AUDU V GUTA [2004] 4 NWLR (PT 864) PAGE 463 AT 465. Continuing he submitted that the courts have held that the contract of service is the bedrock upon which an aggrieved employee must found his case and he succeeds and fails on the terms thereof. He stated that in paragraph 5 and 11 of the claimant’s statement of claim, he stated the annual remuneration that were not paid to him. To prove his entitlement to his claims he gave oral evidence by paragraph 12 of his written deposition and he was cross examined by defence counsel. The defence in prove that the claimant is not entitled to same submitted that by its paragraphs 10(iv) of statement of defence and counterclaim, and 14 of the evidence in chief of DW1 stated clearly that the defendant does not pay 13th month salary bonus for its staffs prior to their confirmation as it predicated upon completion of twelve calendar months employment thus the claimant is not entitled to same as his employment had not been confirmed at this period. The claimant can only become entitled to the 13thmonths salary effective from January, 2011 and 2012 and same has been duly paid to the claimant. Counsel urged the court to so hold. On claims (b) of the claimant, defendant admitting to the debt submitted that the claimant is infact entitled to this sum from the defendant as his outstanding monthly salary for November and December 2012. Counsel urged the court to so hold. Counsel posited that the claimant is not entitled to the acclaimed transport allowance from the defendant in that from the defendant’s letter of employment, the transport allowance was not monetized but given inform of a company car to the claimant as contained by Exhibit VC1. Thus the claimant has failed to prove his reliefs as he did not substantiate how he is entitled to receive the annual transport in addition to the company car provided to him during the course of his employment. On issue two counsel submitted that upon resignation of the claimant, he lost every right to be in possession of the defendant property thus holding over the car of the defendant for 83 days and not releasing same upon demands amounts to a holding over which entitles the defendant/counterclaimant to relief for the detention of the car by the claimant. He cited the case of ENTERPRISE BANK LIMITED V DEACONESS FLORENCE BOSE AROSO AND ORS [2013] 10 CLRN. Continuing counsel submitted that the claimant did not deny the holding over of the said car in its defence but stated that it held it as a lien to enable the defendant pay him his benefit thus deprived the defendant of the use of it property and thereby entitling the defendant to the daily rental value of the car for the period being held over by the claimant which amounts to the sum of N1, 660,000.00. Counsel also posited that the claimant is also in possession of its Subaru SSM III Diagnostic Scan equipment valued at N357, 827.71 and upon repeated demands by the defendant, claimant failed to return same though the claimant to vindicate himself, stated that he returned the equipment to the Managing Director. The defence counsel submitted that the defence of claimant that he returned the equipment back to the Managing Director does not avail him as he has no right to keep in custody the property of the defendant upon his resignation from the company. Counsel stated that the defendant vide Exhibit AOO9 a letter dated 7th of January, 2012 requested for the equipment and in response vide a letter dated 10th of January, 201 the claimant did not controvert the holding over of the equipment at all thus admitting his liability to withholding the equipment. Counsel urged the court to so hold. Counsel further submitted that it carried out repairs on the car damaged by the claimant at the cost of N1, 364,896.33 as a result of it being held over by the claimant for 83 days. This the claimant did not challenge in his pleadings before the court thus deemed admitted by the court. He cited the case of HEALTH CARE PROD. (NIG) LTD V BAZZA[2004] 3 NWLR (PT 861) P 582 AT 586 RATIO 4; CBN V IGWILLO [2007] 14 NWLR (PT 1054) 393 AT 435 PARA E. Counsel urged the court to hold that the claimant failed to prove its claims against it as the defendant has debunked the claims of the claimant by credible evidence thus the court is urged to discountenance the claims of the claimant and sustain the counter claims of the defendant as being meritorious. The claimant on the 22nd of December, 2014 filed his written address wherein he framed two issues for the just determination of this court; 1. Whether parties are bound by the contract of employment between the claimant and the defendant and if they are, whether the claimant has proven his case to cause this honourable court grant to his reliefs sought in this matter. 2. Whether the counter claim of the defendant has merit. Counsel submitted that Exhibit VC1 created a binding contract of employment between the claimant and the defendant. Continuing he stated that in accordance with the terms of his employment, he resigned his employment and the defendant accepted same and by Exhibits VC5 calculated the claimant’s outstanding salary and demanded for all its company’s properties including the SSM Diagnostic Scan and Subaru Legacy (the car). That the defendant is indebted to him in the sum of N715, 054.70 as the outstanding salary and also that since it demanded the Subaru legacy back it is bound to pay the sum of N95, 833.00 as the claimant’s monthly transport allowance. He also submitted that the wordings of the letter dated 25th of January, 2013 amounts to an admission on the part of the defendant that it is indebted to the claimant. He cited the case of GARABEDIAN V JAMAKANI [1961] ALL NLR 176 AT 190. Counsel further submitted that claimant is entitled to his 13th month salary for the year 2010 irrespective of the argument that this was qualified or predicated upon his being confirmed. He stated that by Exhibit VC1 simply puts 13th month salary will be paid annually in December. That it is the law that employees who are continued in their employment after the probationary period without termination or confirmation are considered as deemed confirmed. He cited the case of HUBLE V NIGERIAN MARITIME SERVICES [1971] ULR 231. Counsel urged the court relying on Section 128 of the Evidence Act to hold that the defendant is in breach of the terms of the contract of employment and order it to pay the 13th month salary for 2010. Counsel submitted that the first paragraph of Exhibit VC1 provides that the claimant will be Paid a commencing annual remuneration of N8,627,517.00 per annum. This is the claimant’s compensation for working for the defendant for one full year (whether on probation or not). He also stated that if the argument of the defendant is upheld, then it would mean that the sum of N1, 150,000.00 given as company car will be subtracted from N8, 627,517.00 leaving the claimant with an annual compensation of N7, 477,517.00 which is certainly not the intention of the parties. He urged the court to invoke its equitable jurisdiction to intervene in favour of the claimant and grant the Prayers sought. On issue two, counsel stating that as regards the claim of the defendant/counterclaimant in the sum of N1,660,000.00 as the rental sum against the claimant for the period claimant withheld the car, submitted that by Exhibit AO13 and Exhibit VC 9 both affirms that the claimant and defendant both had meeting on the 8th of March 2013 and the counterclaimant refused to take possession of the car on the 19th of March when the claimant made an attempt to return same and now desires a deduction of N1,660,000.00 as rental value of the car from the benefits of the claimant. He stated that the term holding over are familiar words in leases and tenancy matters and not in employment and by holding over, the counterclaimant actually means detinue and also duty bound to prove same. Thus having failed to prove same, the claimant /defendant counterclaimant is not indebted to the counterclaimant to the sum of N1, 660,000.00 for the rental value of the car after his resignation from its company. Counsel as regards whether the claimant is liable for the defendant’s SSM111 Diagnostic Scan Equipment submitted that the averment and submissions made by the defendant as regards the equipment is just a tool to hoodwink the court. That by Exhibit AO10 tendered by the counterclaimant refused to acknowledge the list which contains one SSM III Scan Equipment because it would mean the one in possession of the claimant as workshop manager was handed over upon his resignation. Rather it has deliberately tried to becloud issues by insisting that there two Subaru SSM III Scans but that the claimant should be made liable for one which has not been returned and it has refused to tender the outcome of the police investigation on this issue if any. He also stated that since the facts as presented amounts to a fraudulent conversion, the counterclaimant must prove same. That Exhibit AO13 written by the counter claimant after the meeting of the 8th of March, 2013 was silent on the said missing equipment. He urged the court relying on Section 167 (d) of the Evidence Act, 2011 to dismiss the counterclaim. Counsel with regards to the cost of effecting repairs on the Subaru legacy submitted that the car was in good condition before it was seized by the police on the 2nd of April, 2013. He stated that by virtue of Section 136 (1) of the Evidence Act, the counter claimant did not lead evidence as to the state of the car after it repossessed it through the police. That the invoice based estimate prepared by the counterclaimant is mere speculation and the fact that the counterclaimant led no evidence as regards the state of the car after it repossessed it, the claim is at best dubious and suspicious and can only be a target to frustrate the judgment of the court if it favours the claimant. Counsel urged the court to so hold and dismiss the claims of the defendant in its entirety. Upon a careful consideration of the processes filed in this suit, the submissions of counsel to both parties and the authorities referred to in support of their respective arguments, it is in the calm view of the court that the issues that will lead to the just determination of this suit shall be; 1. Whether or not the claimant has proven his case to entitle him to same. 2. Whether or not the defendant has proven its counterclaim to entitle it to the reliefs sought. On issue one, it is the claimant’s case that by a letter dated 19th of October, 2009 he was employed by the defendant as the Head of Technical of the defendant’s company and his appointment was confirmed on the 28th of January, 2011. He averred that as a result of his hardwork and dexterity, he was appointed as the Health and safety manager of the defendant’s company on the 1st of April, 2011 and on the 10th of October, 2012 he duly resigned his appointment after issuing the defendant the requisite notice. He stated that upon his resignation from the defendant’s employment, his entitlement has not been paid to him and these are; 13th month salary for the period of 2010, 2011 and 2012, in the total sum of N1,640,571.00 Monthly salary due from the defendant for the months of November and December, 2012 and January, 2013 (pro rata) after deductions in the sum of N715, 054.70. Transport Allowance for the period of November, 2009 to January, 2013 at the rate of N95, 833.00 per month, in the total sum of N3, 670,416.67. The defendant on the other hand and with respect to the claimant’s 13th month salary for the years of 2010, 2011 and 2012 stated that the claimant is not entitled to his 13th month salary for the year 2010 because his employment had not been confirmed as it does not pay the 13th month salary bonus to staff prior to their confirmation. That with regards to claimant’s 13th month salary for 2011 and 2012, defendant admitted that they were not paid as it did not meet up to it set target as a result of the economic recession in the country and thus agreed to the said claim. These facts are not in contention in this case- a). That the claimant tendered his resignation letter by giving the requisite notice and same was accepted by the defendant vide a letter dated 7th January, 2013. b). That the defendant did not pay to the claimant his 13th months salary for years 2010,2011 and 2012. c) That the claimant was owed an outstanding salary in the sum of N715,054.70. The only areas of contention are- 1. Payment of 13th month salary for year 2010. 2. The SM111 Machine, and 3. The Subaru Legacy Company's car. It is the law that facts admitted need no further proof as parties are bound by their pleadings and matters admitted by parties require no further proof. Therefore, where an admission is made in the pleading, the party, making same is bound by it. SEE ARAB CHEM LTD V PHARM RALPH OWODUENYI [2013] 10 NWLR (1361) 89; GODSON OSISIOGU V AKER SOLUTIONS NIGERIA LIMITED [2014] 48 NLLR (PT. 156) P. 275. The averment of the defendant in its pleading as regards the claimant’s 13th month salary for the year of 2011 and 2012 is an admission . See also exhibits AO13 and AO15 wherein the defendant admitted to its liability to pay same, thus I find and hold that the claimant is entitled to his 13th month salary for the year of 2011 and 2012 in the sum of N1, 093,714. I so hold. As regards the claimant’s claims for the 13th month salary for year 2010, which the defendant traversed that the claimant is not entitled to. I have carefully perused the claimant's offer of employment letter, Exhibit VC1 there is nowhere in the letter of employment where it is stated that an employee must be confirmed for him to be entitled to the 13th month salary. What was clearly stated in Exhibit VC1 is that the 13th month salary in the sum of N546, 857 (paid annually in December). The word annual as defined by Oxford Advanced Learners Dictionary 7th Edition is something happening or done once every year; relating to a period of one year. It is deducible from the definition supra that for the claimant to be entitled to the bonus he must have worked for the annual period covered by the bonus to be eligible to claim same. The defendant having employed the claimant on the 19th of October, 2009 and was in employment in December 2010, making it one year and 2 months, makes him eligible to claim the salary for 13th month for December, 2010 having completed a period of twelve month in the service of the defendant. 13th months salary as the name implies, simply means one full year and a month bonus in respect of same. It is not in doubt therefore, that the claimant having worked in the employ of the defendant for the period of October, 2009 till December, 2010 entitles him to the 13th month salary for year 2010. I thus, find that the claimant is entitled to his 13th month salary for year of 2010 in the sum of N546, 857. I so hold. It is the contention of claimant that he has not been paid his monthly salary due from the defendant for the months of November and December, 2012 and January, 2013 (pro rata) after deductions in the sum of N715, 054.70.The defendant on the other hand admits to the claims of the claimant as stated in paragraphs 10 xiv of its statement of defence and Exhibits VC5, AO13 and AO15. The admittance of the defendant to this claim is sacrosanct and thus need no further proof; See the case of MR JOSEPH EKPEYONG EDET AND ANOR V O.A.U AMAH AND ORS [2014] 43 NLLR (PT 136) P. 362. It is in consequence of this that I find and hold that the claimant is entitle to be paid his salary in the sum of N715,054.70. I so hold. It is the claimant’s contention that he is entitled to Transport Allowance for the period of November, 2009 to January, 2013 at the rate of N95, 833.00 per month, in the total sum of N3, 670,416.67.The defence on the other hand averred that it is not liable to the claimant as regards his claims as it duly provided for the transport allowance in lieu of an official car as stated in Exhibit VC1for the duration of his employment with the defendant. The claimant under oath admitted to being given a car in lieu of his transport allowance. It is apparent from the letter of employment which is the bedrock upon which the relationship of both the claimant and defendant is predicated or regulated, that the column for Transport Allowance provides that the claimant is entitled to the sum of N1,150,000 ( given as company car), which implies that the claimant shall be paid the sum of N1,150,000 annually as transport allowance or in the alternative, be given a company car. There is no ambiguity as to the import of list No 3 of the breakdown of the claimant's entitlement and total remuneration as per exhibit VC1. It is trite that parties are bound by their agreement and the court cannot impute another meaning to an agreement that is unambiguous. Thus by the unambiguous wording of Exhibits VC1 with respect to his Transport allowance and the further admittance of the claimant that he was indeed provided with a car as stated by exhibit VC1, I find and hold that claim (C) of the claimant’s reliefs fails. I so hold. Now as regards issue two, has the defendant proven its counter claim to be entitled to same. The defendant/counter claimant contends that claimant is liable to pay the sum of N1,660,000 being the rental value of the Subaru Legacy company car for the period of 83days from 10th of January, t0 2nd of April, 2013 at the rate of N20,000 per day. The claimant/ defendant to counter claim, averred that upon his resignation, the defendant by virtue of a letter dated 7th of January, 2013, i.e. exhibit VC5 demanded its properties which included the car therein and in the bid to use the car as a lien to enable the defendant pay his entitlement held on to it. By a letter dated 21st of March, 2013 Exhibit VC9 attempted to return the car on two occasions that is on the 19th and 21st of March, 2013 respectively, but the defendant refused to accept same. Where an employment is terminated/ determined, there is an implied term that the employee shall be paid his terminal benefit/entitlements if any upon the determination of his employment, except where the employee was dismissed. As held above in this judgment, the defendant has admitted that it failed to pay the claimant his 13th month salary for years 2011 and 2012 and his salary arrears, the court has also found supra that the claimant is entitled to his 13th month salary for year 2010, all these goes to show that the defendant breached the contract of employment it entered into with the claimant. The 13th month salary and salary arrears are claimant's earned entitlements that must be paid by the defendant. See JULIUS BERGER NIG. PLC V. NWAGWU [2006] 12 NWLR(PT. 995) 518, and L.U.T.H. & M.B. V. ADEWALE [1998], where the court held that claims for salary arrears presupposes entitlement to such salary and a denial of payment when as at it fell due is a breach of the terms of employment. Applying the decision in LUTH'S case with this present, claimant's salaries and entitlements were wrongfully withheld by the defendant when it fell due, It is thus my finding that the defendant has breached the contract of employment between it and the claimant, it does not therefore lie in the mouth of the defendant to complain about the holding over of its car by the claimant. He who comes to equity must always come with clean hands. This court cannot invoke either its equitable or legal powers in favour of the defendant in this instance. Again, the basis of the defendant’s calculation of the sum of N1,66,000.00 is unknown to the parties as it was never agreed by parties that failure to return the car given to the claimant would give rise to a rental value as represented by the defendant. Defendant could not substantiate its claim for the alleged amount. Claimant as evinced on record made attempts to return the car but the defendant refused/failed to collect same. Exhibits VC9 confirms this. Consequent upon all that have been stated above, I find that the defendant’s counter claims (i) and (ii)’ fail. It is the contention of defendant/counterclaimant that the claimant has in his possession the Subaru SSM III Diagnostic Scan Equipment and also claims the sum of N357,827.71as value of the equipment in the alternative for eventual failure of the claimant to return same. The claimant denying the claims of the defendant averred that at the material times Subaru SSM III Diagnostic Scan equipment has been in possession of the Managing Director of the defendant. In prove of his denial, the defendant tendered Exhibit AO10 dated 10th of January, 2012 written by the claimant in evidence, wherein it was stated that the attached document represents list of company's equipment which were handed over by the claimant to one Tolulope Ojo who took over from him. It is claimant's position that he has returned the Subaru SSM III Diagnostic Scan Equipment. I have carefully read through exhibit AO10, paragraph 5 thereof, indicates thus- '' Find attached a copy of the list of equipment which I have handed over to my replacement, Mr. Tolulope Ojo'' The list is found to be attached to exhibit AO10 and it is discovered that the first item on that list is SSM111DIAGNOSTIC INTERFACE AND LAPTOP. This has put to paid the question of whether or not the equipment was handed over to the defendant through its agent Tolulope Ojo. The defendant did infact tendered this document, hence it is not in doubt by the parties. It is premised on this that I find and hold that the defendant is not entitle to its counterclaim for the return of the SM111 equipment as the equipment is already in its custody . Defendant's counterclaims (iii) and (iv) fail. I so find and hold. Defendant/counterclaimant is also counterclaiming the sum of N1, 364,89.33.00 as the cost of effecting mechanical and body repairs on the Subaru legacy (the car). The basis of the defendant claims (v) is unknown as the extent and parts of damage was not particularized or listed in its pleadings. This is a special claim and same ought to be particularized and specifically proved. It is the law that evidence without pleadings is deemed abandoned. It is on this note that I find that defendant counterclaims (v) fails. In sum, claimant’s claims succeed in parts and for avoidance of doubt, I make the following declaration and order; 1. It is declared that the claimant is entitled to his 13th month salary for the period of 2010, 2011 and 2012 in the sum of N1, 093,714 and N546,857 respectively. 2. It is also declared that the claimant is entitled to monthly salary due from the defendant for the months of November and December, 2012 and January, 2013 (pro rata) after deductions in the sum of N715, 054.70. 3. The claimant’s claims (C) fails. 4. The defendant’s counter claims fail in its entirety. I award the cost of N50,000 to the claimant. Judgment entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE