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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O.Y ANUWE Date: October 12, 2015 Suit No: NICN/PHC/63/2013 Between Mr. Dickson Adiki - Claimant And Pinnacle Insurance Brokers Limited - Defendant Representation: G.S. Ekpete for the Claimant G. Okoro for the Defendant JUDGMENT The claimant filed this action vide a complaint on the 9th day of May, 2013 claiming against the defendant as follows: 1. The sum of N2,308,900.00 being the claimant’s salaries and entitlements in his employment with the defendant for the months of March, 2012 to September, 2012 which said amount the defendant has failed, refused and neglected to pay to the claimant despite repeated demands. 2. 10% interest per annum on the judgment sum from the date of judgment until same is fully satisfied. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance on the 30th day of May 2013, and on the same day, filed a Statement of Defence, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The Claimant filed a reply to the statement of defence on the 24th day of September, 2013 vide a motion for extension of time. The case proceeded to hearing on the 4th day of November 2013. The parties fielded a witness each. The Claimant testified for himself as CW1, while Dennis Onyebuchi Nnorom, the Chief Executive Officer of the Defendant, testified as DW1. Hearing was concluded by the 4th day of December, 2014, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court. The defendant filed its written address on the 13th day of March, 2015 vide a motion for extension of time. The Claimant’s written address was filed on the 27th day of April, 2015 also vide a motion for extension of time. Parties adopted their respective written addresses on the 10th day of June, 2015. The earlier date scheduled for judgment within the Court vacation period, hence judgment could not be delivered before today being the earliest convenient date, after resumption from the court vacation. Be that as it may, considering that this matter has become caught up by the 90 day statutory period for delivery of judgment prescribed by Section 294(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended). Notwithstanding the provisions of Section 294(5) and Section 294(6) of the Constitution, parties nevertheless re-adopted their addresses before delivery of this judgment. The facts of in this case as gleaned from the pleadings are that the claimant was an employee of the defendant from 1st July, 2008 to 30th September 2012 and that the defendant paid the claimant’s salaries and other entitlements during the said period. However, certain salaries and entitlements for March 2012 to September 2012 remain unpaid. In the defendant’s written address, one issue was proposed for determination, which is: Whether the claimant has proved his claims by preponderance of evidence as required by law to be entitled to the reliefs sought in this case. Counsel’s submission is that, it is trite law that the onus is on the plaintiff to adduce credible evidence to prove his case. See Nwogu vs. Reg. Trustees Recreation Club (2004) FWLR (Pt. 190) 1360. In Eyo v. Onuoha (2011) All FWLR (Pt. 574) 1 at 23 para E; the Supreme Court stated as follows: “The law is well settled that a party must first prove his case with credible evidence before the burden placed on him by the law can shift to his opponent”. This onus, can only be discharged where the claimant adduces cogent and credible evidence that has direct relevance to the matters in controversy. See: Agboola vs. UBA Plc (2011) All FWLR (Pt. 574) p. 74 at 93 paras. E-F. The law has placed on the claimant the duty to adduce cogent and credible evidence that has direct relevance to the matters in controversy in this case, which duty, counsel submitted the claimant has woefully failed to discharge, to be entitled to the reliefs sought in this case. In paragraph 8.1 of the Statement of Claim, the claimant claims the sum of N840,000 being salaries from March, 2012 to September, 2012 at N120,000 per month. The only evidence led in support of this claim is Exhibit C6, dated the 3/11/2010 and titled “Re: Review of your Fixed Income Component of your Salary”. The defendant denied this claim in paragraphs 12(1) of its Statement of Defence and paragraph 12(1) of the witness deposition on oath of Mr. Dennis Nnorom respectively, stating clearly, that the claimant did not generate the monthly income of N1,200,000 to be entitled to the said salary, as the said salary review was subject to the generation of a N1,200,000 income monthly by the claimant. See also paragraphs 7 and 8 of both Statement of Defence and Defence witnesses’ deposition on oath. Further, it is stated clearly in paragraph 2 of Exhibit C6 that “the effective date of this review is 1st January, 2011 subject to availability of income from your Region”. And in paragraph 3 of the same exhibit, it is stated clearly in the last sentence “Please note that your monthly target is now N1,200,000 per month”. It is counsel’s submission that the conditions in Exhibits C6 and others contained in Exhibits C1, C2, C3, and C5 respectively constitutes a binding contract on the claimant, which he is obligated to discharge to be entitled to his salaries and allowances thereto. See Unity Bank plc vs. Abiola (2009) All FWLR (Part 452) Pg. 1082 at 1085 ratio. 5. In Beta Glass Plc vs. Epaco Holdings Ltd (2011) All FWLR (Part 579) Pg. 1173 at 1192 paras G- H, the Court of Appeal held as follows: “Parties are bound by the terms of the contract they went into willingly. Hence, a person seeking to enforce his rights under a contract must show that he has performed all those terms which ought to have been performed by him”. Flowing from the above, it is clear that Exhibit C6 therefore placed conditions to be met by the claimant to be entitled to the said salary of N120,000 and allowance thereto. It is counsel’s contention that the onus is on the claimant to show as follows: i. That he generated the sum of N1,200,000 per month from March 2012 to September, 2012. ii. That there was income generated by him from his Region to be entitled to the said salary of N120,000.00 Counsel urged the Court to dismiss this claim as the claimant has failed to discharge the evidential burden placed on him to be entitled to the relief in paragraph 8(1) of the Statement of claim, See Section 137(1) of the Evidence Act, and the cases of: 1. Inyang vs. Ekpe (2011) All FWLR (Pt. 556) P. 564 at PP 585 – 586 paras. A-G. 2. Olaleye vs. Trustees of ECWA (2011) All FWLR (Part 565) Pg.297 at 315 – 316 paras. A-G. Again, in paragraph 8(2) the claimant makes the claim of N350, 000 as his entitlement for meeting June, 2011 target. He placed reliance on Exhibit C7 dated the 17th June, 2011. This document speaks for itself. It clearly shows that the claimant’s entitlement is 7.5% which is N104,253.16 paid to him through Fin-Bank Cheque No. 07793553. Exhibit C7 further shows that a commission of N350,000 was paid to Abua Odua Local Govt. Area in Skye-Bank Cheque No. 1000032. There is nowhere in Exhibit C7 where it is stated that the claimant was entitled to the sum of N350, 000 as claimed by him in paragraph 8(2) of the Statement of Claim. It is the argument of counsel, that Exhibit C7 which is the evidence in support of this pleading is at variance with the pleadings of the claimant in paragraph 8(2) and thus urged the court to dismiss the said claim for N350,000. See Osuji vs. Ekeocha Pt. 490 (2009) All FWLR P. 614 at 662 paras. G-H. See also Adebusuyi vs. INEC (2010) All FWLR (Pt. 545) 202 at 237 – 238, paras. G – A. Furthermore, the contents of Exhibit C6, contradicts in every material particular the averments in paragraph 8(2) of the Statement of Claim and deposition on oath of the claimant respectively. This contradiction is material and goes to the root of the claim before the court and should be rejected since allowing it would lead to a miscarriage of justice. See Ogunsaki vs. Ajidara Part 507 (2010) All FWLR P. 109 at 132 para. F; also Wachukwu vs. Owunwanne (2011) All FWLR (Part 589) Pg. 1044 at 1060 paras. B – E. Counsel referred the court to paragraphs 8(3), 8(4), 8(5) and 8(6) respectively of the Statement of Claim, and submitted that the claims therein have failed as the claimant has failed to put before the court any credible evidence in support of the averments in each of the paragraphs. In paragraph 7 of the claimant averred “that in the course of my employment with defendant, I was also entitled to vehicle maintenance expenses, office expenses, telephone expenses at N8,000 per month”. These averments were denied by the defendant in paragraphs 9 of its Statement of Defence and witness deposition on oath respectively. Fortunately, neither did claimant’s Letter of employment Exhibit C1 nor Exhibit C6 titled “Review of your Fixed Income Component of your salary” make any references to the said expenses and/or entitlements. Under cross-examination, CW1 Dickson Adiki confirmed to this court that Exhibit C1, his letter of employment did not state that he was entitled to vehicle maintenance expenses, office and telephone expenses at N8,000 per month or any sum at all as claimed in paragraphs 8(3), 8(4), 8(5) and 8(6) respectively of the Statement of Claim. Also, CW1 also confirmed that he did not have any receipts, official invoices or documents whatsoever to prove that he was entitled to any refunds for such expenses from the defendant. Counsel submitted therefore, that the law on the subject is very straight, that it is the duty of the claimant who made assertions in paragraphs 8(3-6) of the statement of claim to prove them through cogent and credible evidence that has direct relevance to the matter in controversy. See the cases of: 1. Agboola v. UBA Plc Supra; Nwogu vs. Registered Trustees, Recreation Club (2004) FWLR (Pt. 190) Pg. 1360 Ratio 2 & 6 2. Imonike vs. Unity Bank Plc (2011) All FWLR (Pt. 586) P. 423 at 438 para A Thus, the claimant has failed to discharge the onus of proof on him in this regard and accordingly the claims in paragraph 8(3-6) fails and should be dismissed. Counsel submitted that the claimant claims in paragraph 8(7) of the statement of claim for the sum of N45,000, being leave allowance for 2012, borders on salaries and emoluments, tied to his letter of employment in Exhibit C1 and C6 respectively. His entitlement to the reviewed salary package and leave allowance are inseparably tied to the conditions set out therein in Exhibit C6. The claimant having failed to prove through cogent and reliable evidence that he generated the said income target of N1,200,000 per month, have failed to prove this particular claim. In paragraph 8 and 9 of the statement of claim, the claimant claims the sum of N187,500 and N96,000 respectively as salary deductions for income tax, which according to him were not remitted to the Rivers State Govt. This claim was denied by the defendant in paragraph 8 of its statement of claim and paragraph 12(viii) respectively of the defence witness deposition on oath. Under cross-examination, DW1 stated that the said deductions have been paid through his auditors. Counsel submitted that, the appropriate authority to deny such payment is the Rivers State Government. DW1 in his evidence before the court stated that the payments were made through the defendant’s auditors. The onus therefore, is on the claimant to prove through cogent and credible evidence that the deductions were not paid over to Rivers State, Nigeria. The failure to do this is fatal to the claim in paragraph 8(8-9) of the statement of claim and counsel urged the court to so hold. See Ekeagwu vs. Nigerian Army part 531 (2010) All FWLR (Pt. 1442) at PP 1452 – 1453 paras. H – A. It is the contention of counsel, that the sum of N400,000.00 representing accrued leave allowance for 2009, 2010, 2011 and 2012 claimed in, paragraphs 8, 10 and 11 respectively, are tied to the claimant meeting the targets set for him in Exhibit C1 and C6 respectively. In paragraph 10 of the statement of defence, the defendants averred that the claimant never met any of the monthly income generation targets for 2008, 2009, 2011 and 2012 respectively to be entitled to any of the leave allowances claimed. Exhibit C2, The Letter of Confirmation of employment in paragraph 1 and 4 states clearly as follows: “This confirmation is not based on your meeting the target set by the management and even your good self in the course of interview/chat preceding your employment in this organization. If you would remember, you personally set a target of N10,000,000.00 brokerage commission income in the first six months of your employment”. In paragraph 4 of claimant’s reply to the statement of defence, the claimant pleaded and tendered Exhibits C15 – C19 in support of his assertion that he met his income generation targets. In doing so, he joined issues with the defendant on this point and predicated the success of his claim on Exhibits C15 – C19. Thus, the averments in paragraph 4 of the claimants reply to the statement of defence supports the case of the defence that the claimant’s employment with the defendant was target driven, and that the claimant’s salaries and allowances claimed in this court were dependent on the claimant meeting those targets; these averments were further admitted by the claimant in paragraph 4 of his further deposition on oath dated the 24th of September, 2013. It is counsel’s submission therefore that paragraph 4 of the claimants deposition on oath thereto amounts to and admission against interest which the defendant is entitled to rely on to defeat the claimant’s case. See Osunbor v. Oshiomole (2009) All FWLR (Pt. 461) p. 1366 at p. 1450 paras. E – G. Assuming that Exhibits C15 – C19 were tendered by the claimant for the purposes of showing that he met his employment targets as spelt out in Exhibits C1 and C6 respectively, it is counsel’s submission that the court should place no reliance or attach any weight to the said documents for the following reasons:- (i) Neither Exhibits C15, 16, 17, 18 and 19 respectively is dated. In law, an undated document is invalid and worthless. See Ogbahon vs. Reg. Trustee C.C. 9.9 (2001) All FWLR (Pt. 80) 1496 Ratio 14. Also Global Soap & Detergent Ind. Ltd, v. NAFDAC (2011) All FWLR (Pt. 599) P. 1025 at 1047 para F. (ii) Secondly, the said Exhibits which are presumed to have been prepared by the claimant while in the employment of the defendant; bears no official stamp on any of the documents, they were not addressed to anybody in particular and neither were they prepared on the official letter headed paper of the defendant. These effects, cast doubt on the document. More so, when Exhibits C15, 16, 17, 18 and 19 respectively are read together with Exhibit C1, C2, C3, C5, and C6 respectively, they show that the claimant has failed to prove that he met the targets claimed. Counsel submitted that, an analysis of Exhibits C5 and C6 respectively show that claimant’s claim in paragraph 4 of his further deposition on oath of having met the monthly targets are false. In Exhibit C5, the monthly target was set at N416, 666.60 monthly as at the 15th of January, 2009 and at N1, 200,000.00 per month in Exhibit C6. In Exhibits C17, 18 and 19 respectively, the claimant never generated any money near the set N1,200,000 monthly target as per the figures posted by him. In Exhibit C17 in particular, from July to December, 2011 a period of 6 months, the claimant only, according to him generated N1,787.845 as against an expected income target of N7,200,000 for the same period. Also in Exhibit C19, covering a period of 9 months from January to September 2012, the claimant only generated a total income of N3,693,056.03 as against an expected income target of N10,800,000.00 for the 9 months. Accordingly, using Exhibit C6 as the benchmark for expected income target for the period 1st January 2011 to the 31st of August 2012, when the claimant resigned from the defendants employment, the claimant as shown in Exhibit C17 and C19 did not meet in any particular month between 1st January 2011 and 31st August 2012, the set monthly income target of N1,200.000.00 From the foregoing, counsel submitted that Exhibits C15, C16, C17, C18 and C19 respectively are documents which fail to support the claimant’s case, that he generated and or/met the agreed monthly income targets to be entitled to his salary and allowances as claimed. The claimant therefore, failed in his duty to prove his assertions in this regard and therefore his claims fail. See Enechukwu vs. Nnamani (2009) All FWLR (Pt. 492) at P. 1087 at P. 1126 paras. C-D. Similarly, the court of Appeal held in the case of Kolawole vs. Olori (2010) All FWLR (Pt. 514) P. 35 at 95 paras. E – F “It is not the volume of documentary evidence tendered and the number of witnesses called that determines the truth behind a case but the quality and probative value of such testimonies and documentary exhibits tendered”. Counsel argued that the contention by the claimants in paragraph 4 of both the claimants reply to Statement of Defence and further statement of oath of the claimant, that defendant increased the salary of the claimant from N80,000.00 to N120,000.00 without raising the issue of the inability of the claimant to meet target, exposes the futility in the inability of the claimant to rely and succeed on the strength of his case and not on the weakness of the defendants case. Counsel relied on the position of the Supreme Court in Ukaegbu vs. Nwokolo (2009) All FWLR (Pt.466) P. 1852 P. 1881 paras. D – E where the court held as follows:- “A plaintiff must succeed on the strength of his own case and not on the weakness of the defence where the evidence is unsatisfactory, judgment should be in favour of the defendant on the ground that it is the plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. Where in a trial of an action, evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order is that of dismissal. In the plaintiffs failed to establish their claims, , therefore, the trial court made the proper order of dismissal of their case”. See also Alkali vs. Yobe State Govt. (2012) All FWLR (Pt. 627) P. 780 at 789 para. C; Progressive Action Congress vs. INEC (2009) All FWLR (Pt. 478) P. 260 at 317 paras. G – G From the foregoing, counsel submitted that, the plaintiff has failed to discharge the onus on him to prove his case by preponderance of evidence and accordingly urged the Court to dismiss the claims of the claimant thereto in its entirety with substantial cost. In the claimant’s final address, counsel formulated five issues for determination, thus: 1. Whether by the terms of the claimant’s contract of employment with the defendant, the claimant was not entitled to earn his normal monthly salaries for March 2012 to Sept. 2012, because the claimant did not meet certain targets set by the defendant? 2. Whether the claimant is entitled to the sum of N350,000.00 being incentive for meeting the target set by the defendant for June, 2012? 3. Whether the claimant is entitled to the Leave Allowance for 2012 and payments in lieu of Annual vacations for 2009, 2010, 2012 and 2012 claimed by him in this suit? 4. Whether the claimant is entitled to payment of vehicle maintenance allowances, telephone and office expenses claimed by him against the defendant? 5. Whether the claimant is entitled to refund of deductions made by the defendant from the claimant’s monthly salaries supposedly for payment of claimant’s Income Tax to the Rivers State Government? Counsel argued issue one by stating that, the salient question to be considered is, whether there is any stipulation in these documents that payment of the fixed monthly salaries and allowances of the claimant was tied to his generating specified amounts of commission (income) targets for the defendant? He contends that there is no such stipulation, where there is any disagreement between parties to a written agreement on any particular point, the only reliable evidence to the claim is the written contract of the parties. See Union Bank of Nigeria Plc. vs. Ajabule (2011) 18 NWLR (Pt. 1278) pg. 152, ratio 13 at pg. 185 paras. F – G. see also Onykwelu vs. Elf Petroleum Nig. Ltd. (2009) 5 NWLR (Pt. 1133) pg. 181, ratio 2 at pg. 200, paras. G – H. The parties cannot use parole evidence to alter the terms of written agreements or documents governing the relationship of the parties. See Egharevba vs. Osagie (2009) 18 NWLR (Pt. 1173) pg. 299, ratio 3 at pg. 310, paras D – E. The law is settled that the courts in construing the relationship of the parties to a written agreement must confine itself to the plain words or meaning which are derivable from their rights and obligations thereunder, so that where words are plain and unambiguous the court should give them their literal and ordinary meaning. See Daodu vs. U.B.A Plc (2004) 9 NWLR (Pt. 878) pg. 275, ratio 3 at pgs 292 – 293 paras. G – B. The terms governing the claimant’s employment with the defendant can be found in the following documents: 1. Exhibit C1: Letter of employment of the claimant dated 5/6/2008 2. Exhibit C2: Letter of Confirmation of claimant’s employment dated 10/1/2009. 3. Exhibit C4 Internal Memo of the defendant dated 4/7/2008. 4. Exhibit C5: A letter of the defendant dated 15/1/2009 titled “Re – Incentive Based Salary Review package for 2009”. 5. Exhibit C6: A letter of the defendant dated 3/11/2010 titled “Review of your fixed income component of your Salary”. Counsel submitted that it is not stated anywhere in any of the above documents that the claimant’s fixed salaries and allowances were not payable unless the claimant generated specified amount of income or commission set for him by the defendant. In the last paragraph of page 2 of Exhibit C4, it is stated as follows: “In the third month into the probation period, it is expected that every employee must at least generate 150% of the month’s salary to be position (sic: positioned) to earn the third month salary. Subsequent salary prior to confirmation of employment will be based on the 150% income generation. An example in your case as a regional manager in charge of SS/SE with monthly salary of N80, 000.00, you (are) expected to generate from the third month at least N120, 000.00 in net brokerage income to the company”. By Exhibit C4, the target set for the claimant during his probation period was N560, 000.00 monthly, yet the claimant was entitled to earn his salaries from the third month during the probation period if he generates 150% of N80,000.00 which was N120,000.00. By Exhibit C2, the claimant’s employment was confirmed on 10/1/2009, to take effect from 1/1/2009. There is no clause in Exhibit C2 or other contract documents stating that the 150% rule continued to apply to him after the probation period. Exhibit C5 contains the classification of the claimant’s monthly salary, into fixed income component and variable incentive based component. The incentive based component was payable if the claimant met certain percentages (not the whole) of given targets. It is not stated anywhere in Exhibit C5 that the fixed income component will not be paid if the given target or portion of it, was not met. By Exhibit C6, the defendant increased the fixed income component to N120, 000.00 per month. The variable incentive-based components of the claimant’s monthly salary were also increased. Again, it is not stated anywhere in Exhibit C6 that the fixed income component will not be paid if the given target or portion of it, was not met. Counsel submitted that it is not the business of a court to re-write contract for parties, and the court will never accede to importation of extraneous matter by a party to prop up what is not contained in the instrument made by the parties. See the cases of Ogundepo vs. Olumesan (2011) 18 NWLR (Pt. 1278) pg. 54, ratio 3 at pg 70 paras C-D, and Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) pg. 422, ratio 6 at pg. 444 paras. A-B. The closest connection between fixed salary component and the meeting of set targets is stated in page 2 of Exhibit C5 thus:- “It is very important we state that the management may review upward or downward the fixed component of the salary of any employee on strict evaluation of the performance(s) of such an employee on a monthly basis”. All that the defendant could do by this clause was to review the fixed salary component downward or upwards, and not to refuse to pay accrued fixed monthly salaries. It was subsequent to this directive that the fixed component of claimant’s monthly salary was increased from N80,000.00 to N120,000.00 vide Exhibit C6. In the interpretation of contracts involving several documents, the trial court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. See Cooperative Development Bank Plc vs. Ekanem (2009) 16 NWLR (Pt. 1168) pg. 585, ratio 1 at pg. 601, paras. A – C. It is the submission of counsel, that the conduct of the defendant in paying the fixed components of claimant’s salaries from July 2008 to February 2012 was not out of magnanimity of the defendant but on the agreement of the parties as contained in their contract. What the defendant had tied to percentages to be met of given targets was variable incentives, not the fixed component of the claimant’s monthly salary. The claimant continued working for the defendant in the light of the conduct of the defendant in not tying the claimant’s fixed salary component to the meeting of given targets. The defendant is estopped from acting otherwise to deprive the claimant of his fixed salary components for March, 2012 to September, 2012. See Section 169 of the Evidence Act 2011. Also, the defendant issued cheques dated 30/7/2012 and 31/7/2012 for payment of salaries to the claimant but the cheques bounced. When asked under cross-examination which salary of the claimant was intended to be paid vides the said cheques, the DW1 refused to give any answer. Counsel urged the court to resolve issue 1 above in favour of the claimant and to hold that the claimant is entitled to payment of the fixed salaries of the claimant at N120,000.00 each month, for March, 2012 to September 2012. In arguing issue two, counsel stated that, in paragraphs 5 and 6 of his statement of facts and by paragraphs 5 and 6 of his statement on oath, the claimant pleaded and led evidence that by letters dated 15th January 2009 and 3rd November 2010, Exhibits C5 and C6 respectively, the defendant gave incentives to the claimant in addition to his fixed monthly salaries. In paragraph 8(2) of the statement of facts and paragraph 8(2) of his statement on oath, the claimant pleaded and led evidence that the defendant failed to pay the sum of N350,000.00 to the claimant, being the incentive for meeting June 2012 target set by the defendant. Exhibit C6 shows that a monthly brokerage commission target of N1,200,000.00, was set by the defendant on 3rd November, 2010. By the same Exhibit C6, the defendant stated that the claimant will earn N350,000.00 outside his fixed monthly salary in any month the claimant achieves 100% of his given target. The claimant pleaded and relied on a letter of the defendant dated 17th June, 2011 to the claimant, which was tendered and admitted as Exhibit C7. By Exhibit C7, the defendant conceded that the claimant was entitled to 7.5% of commission earned by the defendant from an Insurance transaction with Abua/Odua Local Govt. The said 7.5% amounted to N104, 253.16. By ordinary calculation, N104,253.16 is 7.5% of N1,390,042.20. Exhibit C5 explains how this 7.5% accrues and becomes payable. In the first paragraph at page 2 of Exhibit C5 the following statement appears: “The individual employee is entitled to earn an additional income of 7.5% of every brokerage commission generated into the organization subject to the condition stated in this letter. This is another incentive. 7.5% of the commission income for premiums of N350, 000.00 and above will be paid to staff as an incentive. Premium income below N350, 000.00 will not attract 7.5% commission to the employee”. Exhibit C7 states that the defendant earned N1,853,389.60 as commission from Abua/Odua Local Government. The defendant deducted administrative expenses before computing the claimant’s entitlement of 7.5% of the said commission. We submit that the payment of 7.5% to the claimant from commission of N1,390,042.20 shown in Exhibit C7 is sufficient evidence that the claimant generated more than the given target of N1,200,000.00 into the defendant in June, 2011. The Supreme Court stated the law with regards to proof in civil cases in Eyo vs. Onuoha (2011) 11 NWLR (Pt. 1257) 11 NWLR (Pt. 1257) pg. 1, ratio 1, 2 & 4 at pg. 26 – 27, paras. H – A, thus: “It is trite that civil cases are determined on the preponderance of evidence and the balance of probability. See Odunsi vs. Pereira (1972) 1 SC 52; Elias v. Omo-Bare (1982) 5 SC 25, and Odulaja v. Haddad (1973) 11 SC 357”. It is also the law that where the evidence of a party is not challenged by the opposing party, the court is entitled to act upon that evidence and where the claimant’s case is not challenged by the defendants, the claimant is entitled to succeed upon minimal of proof. See also the case of Military governor of Lagos State & Ors. vs. Adeyiga (2012) 2 MJSC (Pt. 1) pg. 76, ratio 2 at pg. 126 paras G – B, where the court held as follows: “The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance, the onus of proof is naturally discharged on a minimum proof”. In the instant case, the defendant did not challenge the cause of the claimant that he met the set target for June, 2011 as shown in Exhibit C7. Rather, the defendant admitted in paragraph 12(2) of the statement of defence that the claimant was entitled to and was paid N104,253.16 which is 7.5% of commission earned by the defendant. This is clear proof that the claimant generated over N1,200,000.00 for the defendant in June, 2011. N1,200,000.00 brokerage commissions was the monthly target given by the defendant vide Exhibit C6 dated 3rd November 2010, until the claimant left the services of the defendant. By Exhibit C5 and C6, the claimant was entitled to 7.5% of brokerage commission generated by him and N350,000.00 as incentive for achieving 100% of the given target, in addition to his fixed monthly salary. Exhibit C7 further shows that instead of paying the N350,000.00 incentive earned by the claimant to him, the defendant’s managing director decided to pay N350,000.00 to the Local Govt. officials so as to encourage them to do more business with the defendant. Counsel submitted that Exhibit C6 is binding on the defendant, and it has a duty to pay the incentive of N350,000.00 earned by the claimant for meeting June, 2011 target set by the defendant. In the absence of fraud, duress, undue influence and misrepresentation, parties are bound by the terms of their contract. see Alade vs. Alic (Nig.) Ltd. (2010) 19 NWLR (Pt. 1226) pg. 111, ratio 9 at pg. 144 para D – E. Counsel urged the court to resolve Issue No. 2 in favour of the claimant and to hold that the claimant is entitled to the sum of N350,000.00 being incentive for meeting the target set by the defendant for June, 2011. The argument on issue three was predicated by counsel on, paragraphs 7, 8(7), 8(10) and 8(11) of the statement of facts and evidence as shown in paragraphs 7, 8(7), 8(10) and 8(11) of his statement on oath that the claimant is entitled to Leave allowance of N45,000.00 for year 2012, payments in lieu of 2009 and 2010 Annual Vacations at N80,000.00 per year, and payments in lieu of 2011 and 2012 Annual Vacations at N120,000.00 per year. At page 2 of Exhibit C1, the Letter of Offer of Employment to the claimant, it is stated that in his employment with the defendant, the claimant was entitled to annual Vacation and one month basic salary as vacation allowance, as follows: “Upon completion of 12 months service with this organization, you shall be entitled to fifteen (15) days working vacation time per annum. In addition to this, you shall be entitled to one month basic salary as a vacation time allowance.” By Exhibit C6, the claimant’s basic salary from 1st January 2011 was N45,000.00. The claimant was not given his fifteen days Annual Vacations and basic salary for 2009, 2010, 2011 and 2012 hence he claims one month salary for each of those years in lieu of his annual vacations. The defendant’s witness admitted under cross-examination that the claimant was entitled to one month’s salary as vacation time allowance. The defendant did not tender any documents of receipt to counter the evidence of the claimant that he was not paid for the years claimed by him. The claimant’s fixed monthly salary for 1st July, 2008 to 31st December, 2010 was N80,000.00 while his monthly salary for 2011 and 2012 was N120,000.00. These claims were clearly set out in the claimant’s letter to the defendant dated 28th September 2012, Exhibit C8, which DW1 admitted that he received. The defendant did not write to the claimant to deny those claims. In the defendant’s solicitor’s letter, Exhibit C10, dated 12th November 2012, the defendant did not deny the said claims but only contended that the allowances were tied to income targets given to the claimant, which he did not meet in all of 2009, 2010, 2011 and 2012. See paragraphs 10, 12(7) and 12(9) of the statement of defence. Counsel submitted that the defendant has the burden to show that the said Annual Vacation entitlements were tied to income targets given to the claimant and the said annual vacation entitlements were not among the incentives tied to given targets and the claimant is entitled to the said annual vacation claims. Counsel in arguing issue four, referred to paragraphs 7, 8(3), 8(4), 8(5) and 8(6) of the Statement of Facts and paragraphs 7, 8(3), 8(4), 8(5) and 8(6) of the claimant’s statement on oath wherein the claimant pleaded and led evidence to show that he had incurred expenses in maintaining the official vehicle assigned to him by the defendant and also incurred office and telephone expenses for which he is entitled to refund by the defendant. These expenses were clearly set out in detail in the claimant’s letter dated 28th Sept. 2012 to the defendant (Exhibit C8). Under cross-examination CW1 testified that he submitted the records of the said expenses to the defendant’s Managing Director, DW1. The defendant did not write to the claimant to reject the claims in Exhibit C8. Counsel submitted that, the defendant’s silence meant that it was in agreement with the said expenditure. In the first paragraph at page 2 of Exhibit C7, it is stated that N140,000.00 was paid to the claimant for office running expenses from July-October, 2011. The average monthly expenditure is N35,000.00, which is more than the monthly amounts which the claimant spent as shown in paragraphs 8(4) and 8(5) of the claimant’s statement on oath. The claimant tendered Exhibit C19 showing that he generated over N3.6 million as commission for the defendant between January and September 2012. The defendant has not exhibited any Statement of Account of the company to show that the claimant did not generate any income to enable the defendant pay the claims. See Section 133(2) of the Evidence Act 2011. Counsel urged the court to resolve this fourth issue in favour of the claimant. Regarding issue five, counsel submitted that the claimant pleaded and led evidence to show that the defendant deducted the sum of N6,250.00 from the claimant’s salaries every month from July, 2008 to December 2010, and also deducted N14,000.00 from the claimant’s salary every month from January 2011 to February, 2012 supposedly for payment of the claimant’s Income Tax to the Rivers State Government which the defendant never paid. See paragraphs 8(8) and 8(9) of the Statement of Facts and paragraphs 8(8) and 8(9) of the claimant’s Statement on Oath. The defendant’s response in paragraph 12(8) of the statement of defence is a bare denial, without specifically denying either that the said deductions were made or that the deducted amounts were paid as claimant’s income tax to Rivers State Government. It was under cross-examination that the DW1 said the deductions were sent to tax authorities without specifying those tax authorities. This is an admission that the deductions were made, and a fact admitted needs no further proof. See Efuribe vs. Ugbam (2010) 14 NWLR (Pt. 1213) pg. 257, ratio 7 at pg. 287 paras. E – F. Counsel submitted that the burden rests on the defendant to show that the deductions were utilized for payment of claimant’s income tax. The law is that he who asserts must prove. See Section 131(1) of the Evidence Act 2011. The defendant ought to have tendered the receipts of payment to the tax authorities, which it failed to do. We further submit that the defendant has failed to show that it paid the deductions from the claimant’s salary to appropriate authorities as the claimant’s income tax, and the claimant is entitled to a refund of the said deductions. Counsel urged the court to discountenance the defendant’s defence in this suit and to grant the claimant’s claims. The claimant claims the sum of N2,308,900.00 from the defendant as his salaries and entitlements for the months of March, 2012 to September, 2012. In paragraph 8 of the statement of facts, the claimant pleaded how the sum of N2,308,900.00 claimed by him came about. According to him, the sum arose as follows: 1. Salaries for March 2012 to September 2012 at N120,000.00 per month - N840,000.00 2. Incentives for meeting June 2011 target - N350,000.00 3. Outstanding balance due to the claimant for vehicle maintenance/repairs: January 2012 to May 2012 - N76,000.00 4. Refund of office expenses made by the claimant for March 2012 to July 2012 at N22,500 per month - N112,000.00 5. Refund of office expenses for August 2012 and September 2012 at N23,500 and N22,000.00 respectively – N45,000.00 6. Telephone expenses for March, 2012 to Sept. 2012 (7 months) at N8,000 per month - N56,000.00 7. Leave allowance for 2012 - N45,000.00 8. Salary deductions for Income Tax which were not remitted to the Rivers State Govt. for July 2008 to Dec. 2010 at N6,250.00 per month for 30 months - N187,500.00 9. Salary deductions for Income Tax which were not remitted to the Rivers State Govt. for Jan. 2011 to Feb. 2012 at N14,000.00 per month for 14 months - N196,000.00 10. Payment in lieu of 2009 and 2010 Annual vacations at N80,000.00 per year -N160,000.00 11. Payment in lieu of 2011 and 2012 annual vacations at N120,000.00 per year - N240,000.00 In proof of his case, the claimant testified as the only witness in his case. In his evidence, the claimant told this court that he was employed by the defendant as its Regional Manager and the employment took effect from 1st July 2008. The claimant’s employment letter is in evidence as Exhibit C1. The claimant stated further that he worked for the defendant till 30th September 2012 when he voluntarily resigned from his employment. At the date of his employment, as indicated in his employment letter, his salary was N80,000.00 per month or N960,000.00 per annum. In addition, the defendant offered to pay the claimant 7.5% of the total income the claimant brings to the defendant. Several communications of the defendant to this effect were admitted in evidence as Exhibits C4, C5 and C6. That by Exhibit C6, the defendant increased the claimant’s monthly salary to N120,000.00. This was in addition to other incentives. The claimant testified further that in the course of his employment, he was entitled to vehicle maintenance, office and telephone expenses and also leave and annual vacation allowances. The defendant paid his salaries from 1st July 2008 to February 2012 but refused to pay his salaries and other entitlements from March 2012 to September 2012. The total sum involved was calculated by the claimant to amount to N2,308,900.00. The claimant further stated that upon his resignation, he handed over to the defendant all its properties in his possession but the defendant refused to pay him his outstanding salaries and entitlements despite the letters he and his solicitor wrote to demand payment. In a response from the defendant’s solicitors to his demand, the defendant denied liability for the sum demanded by the claimant. The defendant subsequently issued two cheques to the claimant to cover part of the claimant’s demands but the cheques bounced upon presentation at the bank. As appears from the defendant’s defence, it did not dispute the following facts: The fact that the claimant was employed by the defendant effective from 1st July 2008 and the claimant’s resignation on 30th September 2012; The agreed salary and the increment to be paid to the claimant and the 7.5% payable to the claimant from the total income generated by the claimant; In paragraph 11 of the statement of defence, the defendant admitted it paid salaries to the claimant from July 2008 to February 2012. The defendant however contends that the claimant is not entitled to his claims. It is the defendant’s case, as presented in the evidence of its Managing Director, Dennis Nnorom, that the claimant was informed in his letter of employment that his employment was target driven and the claimant accepted the condition when he accepted the employment. By Exhibits C4, C5 and C6, the claimant’s emoluments and the income percentage was subject to the claimant meeting the monthly income generation target set by the defendant but the claimant failed throughout his period of employment to generate the income target assigned to him. Even the claimant’s salary increase was made subject to and dependent on the claimant meeting his income target for each month. Since the claimant did not meet the monthly target, he was not entitled to the reviewed monthly salary of N120,000.00. According to DW1, the defendant does not owe the claimant the sum of N840,000.00 as salaries from March 2012 to September 2012 and not also liable to the claimant for his claims on expenses and allowances. By its explicit averments in paragraphs 11 and 12 of the statement of defence, the defendant has denied the claimant’s claims. The burden is therefore on the claimant to prove his case. See AGBOOLA vs. UBA PLC (2011) All FWLR (Pt. 574) 74. In determining this case, it appears to me that the best approach to adopt is to consider each item of the claimant’s claim to see if he has been able to establish the amount he claims in this suit. Item 1 in the items which constitute the sum claimed from the defendant in this suit by the claimant is the sum of N840,000.00. The claimant alleged that the sum was his unpaid salary for March 2012 to September 2012 at N120,000.00 per month. According to the claimant, at his employment, he was entitled to monthly salary of N80,000.00 which salary was increased to N120,000.00 with effect from January 2011 through Exhibit C6. The defendant had always paid his salaries from 1st July 2008 when he was employed to February 2012 but refused to pay his salaries and other entitlements from March 2012 to September 2012. The claimant resigned from the employment effective 30th September 2012. The defendant, in paragraphs 3 and 11 of the statement of defence admits that the claimant resigned on 30th September 2012 and also that the last salary paid to the claimant was the salary for February 2012. But in paragraph 12 (1), the defendant denied the claimant’s claim to salary from March 2012 to September 2012. The defendant contended that payment of salary to the claimant was subject to the claimant meeting the monthly income generation target set by the defendant. Since the claimant failed throughout his period of employment to generate the income target assigned to him, he is not entitled to his claim for salaries. From the facts, it is clear the claimant has not been paid his salary for the months of March 2012 to September 2012. In Exhibit C1, the claimant’s employment letter, one of the conditions of the employment was payment of salary to the claimant. Now, was that condition subject to the claimant meeting a particular income target? In paragraph 3 of Exhibit C1, it states: “At confirmation, this salary may be reviewed after appraisal. The company will lay emphasis on total premium generated and brokerage commission that the company earned during the period in reviewing the salary”. Also, Exhibit C4 contain as follows under the heading RESPONSIBILTY/TARGET/REWARD: “Regional manager in charge of SS/SE, you are expected to generate a net brokerage commission income of N560,000.00 per month. Therefore, for the period of your probation, your combined brokerage income target to be generated will be N3,360,000.00 and you shall be entitled to earn a 7.5% of the total income outside your normal monthly salary as stated in your employment letter… Employees who meet his or her target 100% for the first six months automatically gets 100% gross salary increment and promotion from the date of confirmation. For every year such an employee meets the company’s set target, the employee gets 100% salary increment and promotion; outside the proportion of the income such an employee will earn besides the salary”. Exhibit C6 is where the claimant’s salary was increased to N120,000.00 per month. The increased salary was to take effect from 1st January 2011 and the exhibit further state thus at the 2nd paragraph in page 2: “It is important we state that future salary review and promotion of staff will be strictly based on staff performance, business generation and income generation to the company.” I have taken the pain to set out these parts of the exhibits relevant to the issue at hand in view of the defendant’s contention that it is a condition of the employment that payment of salary is dependent on meeting income generation target. In his submissions, the defendants counsel had argued that the claimant did not meet the agreed income generation target to be entitled to the reviewed salary package of N120,000.00 per month which commenced on the 1st January 2011. It is however clear from the portions reproduced from Exhibits C1, C4 and C6 that the emphasis on income target by the defendant relates only to review of salary and promotion but not to payment of salary. From the content of these exhibits, it is very clear that salary is different from commission to be earned from target achievement or brokerage commission. The commission is earned upon achieving set income target but salary, as shown in Exhibit C1 or C5 or C6 is basic, fixed and paid as a consequence or by virtue of the employment. This fact is more obvious in Exhibit C5 where the pay packages of the defendant was classified into fixed and variables. The fixed component is the salary payable monthly to the claimant while the variable is the percentage incentive the claimant will be entitled when he meets set target. There is nowhere in Exhibits C1, C2, C4, C5 or C6 it is stipulated that the claimant will not be paid his salary if he didn’t meet set income target or that payment of salary is subject to meeting set income target. The defendant’s counsel quoted a part of paragraph 2 of Exhibit C6, which reads “The effective date of this review is 1st January, 2011 subject to availability of income from your Region”, and sought to use it to link payment of salary to achievement of set income target. With respect to counsel, the sentence does not in any way suggest that payment of salary to the claimant depends on his meeting set income target. When the sentence is read together, it will be seen that what is “subject to availability of income” is the implementation date of the new salary and not payment of salary to the claimant. The defendant has contended that the claimant is not entitled to salary because he never met set income target. In paragraph 6 of the statement of defence, the defendant alleged that the claimant never met either the monthly or annual income target since his employment and in paragraph 7, the defendant averred it is a condition of the employment that payment of salary depends on meeting the income target. However, the same defendant admits in paragraph 11 that it has paid salary to the claimant from the time of his employment up to February 2012. What I find difficult to comprehend in the defendant’s case is on what basis will the defendant pay salary to the claimant for 3 years and 7months when all the while the claimant did not meet income target but will now refuse to pay the claimant’s salary for merely 7 months? The obvious answer is that the payment of salary was never dependent on meeting income target. That is my finding. The claimant, in his reply to statement of defence and the claimant’s further evidence, did try to show that he actually met income target during his employment. This was in further proof of his entitlement to salary if considered from the angle of meeting income target. Now, having found that payment of salary is not subject to meeting income target, whether the claimant did meet income target is no longer an important issue. I will not waste time on it. As it is, the claimant has proved that he was not paid salary from March to September 2012 and he worked for those months. His salary at that time was N120,000.00 per month. The claimant calculated his outstanding salary to be the sum of N840,000.00. It is my view that the claimant is entitled to his claim for salaries for the months of March 2012 to September 2012. Item 2 in the items the claimant based his claim is the sum of N350,000.00 being the variable component of incentives for meeting June 2011 target. On this claim, the claimant relied on Exhibit C7. Besides Exhibit C7, the claimant did not supply any another facts to support this claim nor did he plead any basic fact on the sum claimed in this item. I have looked at Exhibit C7 upon which he relied but I cannot find anywhere where it was indicated that he is to be paid or entitled to the sum of N350,000.00. The sum I find indicated against his name in Exhibit C7 is the sum of N104,253.16 being “7.5% commission due to Dickson Adiki” and it was further contained that “find enclosed in this memo Fin Bank cheque No. 07793553 for N104,200.00 representing your 7.5% of the commission due to you on Abua Odua Local Government.” The sum of N350,000.00 mentioned in the exhibit was indicated to be paid to “Abua Odua Local Government men”. There is nowhere where it was written in the exhibit that the claimant is entitled to N350,000.00, neither has the claimant proved how he is entitled to N350,000.00 in Exhibit C7. In paragraph 12 (2) of the statement of defence, the defendant denied item 2 of paragraph 8 of the statement of claim but stated that the claimant is however entitled to the sum of N104,253.16 being his 7.5% of the commission earned by the defendant. The defendant averred that the said sum has been paid to the claimant vide Fin bank Cheque 07793553. In paragraph 4 of his reply to the statement of defence, the claimant when asserting that he met the defendant’s income target, referred to the defendant’s paragraph 12 (2) of the defence and said: “…the claimant avers that the defendant paid the incentive or variable component of the sum of N104,253.16 to the claimant as stated in paragraph 12(2) of the statement of defence because the claimant met the set target.” This is an admission that he was paid the sum which the defendant was to pay to him by virtue of Exhibit C7. This is even more so that the claimant has not claimed that particular sum in this suit. In that case, the claim in item 8 (2) of the statement of claim fails. In items 3, 4, 5, and 6 of paragraph 8 of the statement of claim, the claimant alleged that the defendant has refused to pay him the sums of N76,000.00, N112,000.00, N45,500.00 and N56,000.00 being refunds respectively for vehicle maintenance/repairs from January 2012 to May 2012, office expenses for March 2012 to September 2012 and telephone expenses for March, 2012 to September 2012. In paragraph 7 of his evidence, the claimant said that during his employment, he was entitled to vehicle maintenance, office and telephone expenses and in his further evidence, he said the defendant’s Managing Director gave him instruction to always maintain the official Vehicle with his money whenever it develops fault and assured him of reimbursement. The claimant further said the defendant usually pay him monthly imprest of N35,000.00, sometimes in arrears or in advance and in the Memo dated 17/6/2011, Exhibit C7, he was given imprest of N140,000 for July to October 2011. The defendant denied these items of the claimant’s claim and contended that the claimant was not entitled to any personal allowances for vehicle maintenance, office and telephone expenses. DW1 testified that the defendant usually provides funds to the claimant for these expenses but the claimant would end up misappropriating the funds. It is instructive to mention that it is clear from the facts and evidence that these items of the claim are not prescribed in the contract. The claimant, under cross examination, said that his employment letter did not contain issues of vehicle maintenance, office or telephone expenses. He further said these items in paragraph 8 (3-6) of his evidence are only covered by company directives communicated to him by E-mail but not that they are supported by any document. Now, what the claimant is seeking in these items of the claim is the refund of monies he allegedly expended on the defendant’s affairs. The claimant did admit that the defendant used to provide funds for these items. Therefore, it is his duty to prove that the defendant did not make provisions or made inadequate provision for the months in question and that he actually incurred the expenses sought. The refunds sought are in form of special damages and the law is that it must be strictly proved. See AFRILEC LTD vs. LEE (2013) All FWLR (Pt. 699) 1178. The claimant merely alleged that he is entitled to refund without showing evidence that these expenses were incurred or any official communication where the defendant undertook to reimburse him. The MD who he said gave him the directive was in this court as DW1. DW1 told this court in his evidence that the claimant is not entitled to his claim as the defendant made provision for maintaining the vehicle and the office. Furthermore, the claimant didn’t put any receipts, invoices or documents in evidence to prove that he was entitled to any refunds of such expenses from the defendant. In fact, under cross examination, the claimant said he did not have any document to support the claims. The claimant has failed to prove his claim in items 3, 4, 5, and 6 in paragraph 8 of the statement of claim. Item 7 is a claim for leave allowance for 2012 in the sum of N45,000.00. The claimant pleaded in paragraph 7 of the statement of facts that he is entitled to leave allowance. He also testified to the fact. But the defendant, in paragraph 12 (7) of statement of defence, denied owing the claimant the sum of N45,000.00 as leave allowance. In respect of this item of the claim, the claimant merely asserted that he is entitled to leave allowance without proof of what entitles him to it neither did he provide any evidence that he was paid for the previous years. The claimant has not shown this court where in the contract, he was entitled to leave allowance. In all the documents of the employment in evidence, I find none in which provision for leave allowance was stated. This item for leave allowance is not proved. In items 8 and 9 of the claimant’s list of items constituting his claim, he claimed the sum of N187,500.00 as Salary deductions for Income Tax which were not remitted to the Rivers State Government for July 2008 to Dec. 2010 and another N196,000.00 for Salary deductions for Income Tax which were not remitted to the Rivers State Government for January 2011 to February 2012. I must say that these items of the claim are very ambiguous and, to say the least, unproved. The first noticeable difficulty in appreciating the claim is the questions: Whose salary was deducted? Who deducted the salary? How was the salary deducted? What is the claimant’s evidence that the deductions were not remitted to the River’s State Government? The answers to these questions have not been provided by the claimant and that failure is fatal to these items of his claim. Without much ado on this issue, these claims ought to fail. Items 10 and 11 on the claimant’s list of claims are for payment of the sum of N160,000 in lieu of 2009 and 2010 Annual vacations and N240,000 in lieu of 2011 and 2012 annual vacations. In paragraph 7 of the statement of facts, the claimant averred that during his employment, he was entitled to payment in lieu of annual vacation at N80,000.00 per year for 2009 and 2010 and N120,000.00 per year for 2011 and 2012. The claimant also gave evidence to this effect. In defence of the claim for payment in lieu of annual leave, the defendant denied the claim in paragraph 12 (9) of the statement of defence and averred further that the claimant is not entitled to the claim because the claimant did not meet the monthly income target set by the defendant. Another entitlement of the claimant as contained in his employment letter is vacation and vacation allowance. At page 2 of Exhibit C1, it is provided under the heading “VACATION TIME” as follows: “Upon completion of twelve (12) month’s service with the organization, you shall be entitled to fifteen (15) days working vacation time per annum. In addition to this, you shall be entitled to one month basic salary as a vacation time allowance.” From this condition of the employment, the claimant is entitled to 15 days’ vacation every year “Upon completion of twelve (12) month’s service” and payment of 1 month basic salary as vacation allowance. The defendant’s contention in respect of this claim, as it did for the claimant’s claim for salary, is that the claimant is not entitled to payment in lieu of annual vacation because he did not meet the monthly income target set for him by the defendant. It is obvious that the defendant’s denial of these items of the claim is not on the basis that it has paid the claimant his vacation allowances for the years in question. I have scrutinized all the exhibits, particularly, C1, C2, C4, C5 and C6 but I cannot find anywhere where entitlement to annual vacation or payment of vacation allowance is made subject to the claimant meeting set income target. Now, is the claimant entitled to the sums claimed in items 10 and 11? The claimant’s claim is for 2009 and 2010 at N80,000.00 for each year and 2011 and 2012 at N120,000.00 for each year. It has been the claimant’s evidence that his salary at employment was N80,000.00 and was increased from January 2011 to N120,000.00. Exhibit C1 under which the claimant qualifies for this claim expressly limits the qualification to completion of 12 months service in the defendant company. It is the claimant’s case that he resigned from the employment on 30th September 2012. That is to say he did not complete 12 months service in 2012. He is therefore not entitled to vacation allowance for 2012. That leaves 2009, 2010 and 2011. Furthermore, the sum payable as vacation allowance in Exhibit C1 is one month’s basic salary. The reference to basic salary excludes other allowances that make up a month’s total salary. In Exhibit C5, the claimant’s basic salary per month, effective from 1st March 2009, was N35,000.00. This was the same earning in 2010 until increased in Exhibit C6 to N45,000.00 per month with effect from 1st January 2011. In effect, the claimant’s basic salary for 2009 and 2010 was N35,000.00 and in 2011, it was N45,000.00. These are the sums the claimant is entitled as vacation allowances for 2009, 2010 and 2011. The total sum which this court finds to award to the claimant based on items 10 and 11 of his claim is the sum of N115,000.00. In the sum of this judgment, the claimant has not been able to prove the entire sum he claims in this suit. His claim only succeeded in part. Consequently, I make the following orders: 1. The defendant is ordered to pay the sum of N955,000.00 (Nine Hundred and Ninety Five Thousand Naira) to the claimant. This sum represents the claimant’s outstanding salary from March 2012 to September 2012, which is N840,000.00 (Eight Hundred and Forty Thousand Naira) and vacation allowance for the years 2009, 2010 and 2011 in the sum of N115,000.00. 2. The defendant is to pay the above sum to the claimant within 30 days from today, failure of which the sum will begin to attract interest at 10% per annum from the time of default until the final liquidation of the judgment sum. Parties are to bear their cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge