Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 17TH MARCH, 2015 Suit No. NIC/ABJ/145/2012 BETWEEN ENGINEER VASILE ORENSTEIN CLAIAMNT AND 1. ABC SHELTERS LIMITED 2. PROFESSOR JERRY GANA DEFENDANTS 3. IKE NELIAKU REPRESENTATION Bola Adebiyi Esq for the Claimant. Emeka Omeje Esq for the Defendant. JUDGMENT By a general form of complaint dated and filed on 15th May, 2012, the claimant claims against the defendants jointly and severally as follows:- 1. AN ORDER for the payment of the sum of E117,760 (One Hundred and Nineteen Thousand Six Hundred Euros (Sic) and (domestic and other services and medical) allowance of the claimant for 23 months (from May 2009 to March 2011) at the rate of E5,120 per month. The sum of N1,400,000 (One Million Four Hundred Thousand Naira) being balance of the unpaid accommodation allowance for year 2009/2010 and sum of N208,333.3 being the prorated accommodation allowance for 10 months from June 2010 to March 2011. 2. AN ORDER for the payment of the sum of N1,200,000 (One Million Two Hundred Thousand Naira) being the cost of return tickets to Romania for years 2009 and 2010 for claimant and his spouse at the rate of N600,000 (Six Hundred Thousand Naira) per year. 3. AN ORDER for the payment of the sum of N5,000,000.00 (Five Million Naira) being the value of 5 Million shares of 1 kobo each of the 1st defendant company which the 1st defendant offered/allotted to the claimant as additional incentive. Accompanying the complaint are the claimant’s affidavit in support, witness statement on Oath, list witnesses and list of documents to be relied upon. In reaction to the complaint the defendants filed and entered memorandum of appearance amended joint statement of defence, witness statement on Oath, list of witnesses and list of documents. The matter went on trial, the claimant testified in his case and tendered Exhibits. The defendants called two witnesses and tendered Exhibits as well. On 4th February, 2015 parties adopted their final addresses. The defendants in their joint final address raised two issues for determination of the court:- a. Given the circumstances of the case, the evidence adduced and Exhibits tendered, whether the claimant is entitled to the reliefs sought and claimed by him? b. Whether having regard to evidence led thereof, the defendants are entitled to their counterclaim? The counsel to the defendants submitted that it is trite law that the burden of proof lies on a litigant who asserts the very existence of a fact. The success of a claim as contained in a pleading lies on the strength of evidence adduced in support/proof of such a claim. And where evidence does not support the pleading, such pleading is bound to fail. The claimant is seeking the sum of 117,760 Euros as salary, medical allowance and allowance for domestic and other services for a period of 23 months spanning from May 2009 to March 2011. It is the position of the claimant that throughout his period, he did not receive salary or allowances. The learned counsel submitted that it is in evidence that during the said period spanning from May 2009 to March 2011, the claimant received various sums of money categorized as salary advances and allowances from the defendants as captured in Exhibits DW2 a- h. The onus of proof that the claimant is entitled to the sum of 117,760 Euros heavily lies on the claimant which he has failed to discharge. It is trite that where a party failed to prove his claim, the court cannot give the party what he did not ask for. It is the duty of the claimant to dutifully show how he is entitled to a claim, since the court is not a saunta clause or a mathematical calculator. The court cannot be invited to engage in speculative analysis. In Orthue V NEPA (1998) 5 S.C.N.J P. 126 at 140, the Supreme Court held that:- The law is settled that it is the duty of the court to consider the evidence produced before it and never to proceed to indulge in speculation as to what might have happened. The claimant is seeking specifically the sum 117,760 Euros and can only succeed if same is proved by him on the strength of his case. However, he has woefully failed to prove same and his claim must fail and be dismissed since the court is not a charitable institution. Per Obeseki, J.S.C in Okeowo V Migliore & Ors (1979) N.S.C. 210 at 248 stated:- I am in full agreement with the statement of law established in the case of Nigerian Housing Development Ltd & Anor. V Yaya Mumuni (1977) 2 SC 57 at 81 which reads:- “It is elementary that a plaintiff in an action is not entitled to any relief not claimed by him”. The counsel urged the court to hold that the claimant has failed to prove that he is entitled the sum claimed. The counsel also went on to discuss on the claim of the claimant for a balance of N1,400,000 being balance of unpaid accommodation allowance for the year 2009/2010. He claims a further N208,333.3 being prorated accommodation allowance for a period of 10 months from June 2010 to March 2011. That the claimant failed to place any strand evidence in support of this assertion. On the contrary, there is evidence showing that the claimant was not only in receipt of his full accommodation allowances but in deed he was paid in excess of what was due. While being examined on the 10th of April, 2014, the claimant acknowledged the payment of the sum N2,500,000 accommodation, N1,100,000 for his 2009 – 2010 accommodation (leaving a balance of N1,400,000). He also admitted that he received another N5,000,000 from the defendants for his accommodation as well. Thus by his admission, the claimant received the cumulative sum of N8,600,000.00 only for accommodation over the period. The law is settled that facts which are admitted need no further proof. We place reliance on the cases of ALI V ALBISHIR (2008) ALL FWLR (PT. 415) 1681 @ 1727 PARAS B – D; BAJODEN V IROMNANIMU (1995) 6 NWLR (PT. 453) 127. Counsel submitted that in the circumstances, if the accommodation allowances being claimed by the claimant is subtracted form the N5,000,000 accommodation allowance received by the claimant, the defendants are entitled to a refund of N1,516,666.67 and the court is urged to so hold. The counsel went on to consider the claimant also claims the payment of the sum of N1,200,000 being the cost of return tickets to Romania for 2009 and 2010 for himself and spouse at the rate of N600,000 per year. There is no evidence that the claimant and his spouse traveled to Romania during the period of 2009 and 2010. No scintilla of evidence was led in proof that the claimant traveled or expended such amount. No traveling documents were pleaded or tendered. The Evidence Act, 2011 in Section 131(1) provides that:- Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence at facts which he asserts must prove that those facts exist. It is instructive to note that the claimant was solely relying on the conditions of service in item 4(e) of his letter of employment in making this claim. Item 4(e) states:- Allowance for Travelling to Country of origin: At the expense of the company, you and your spouse shall be entitled to a return tickets (To and Fro Romania) once a year. Continuing further down, Item 4(f) states:- Time-off from work/Annual Leave: Your annual Leave/Time-off from work shall be 30 days per annum which you shall arrange to correspond with the period you wish to travel to your country of origin. Your annual leave period shall be utilized within each year in any of the following ways:- (i). by mutual agreement on the dates of your leave him the Vice Chairman/CEO; or (ii) 15 days leave to be taken after the first five months (starting from the date of resumption), and the remaining 15 days leave to be taken after the next succeeding five months. In each case above, prior approval of the CEO shall be sought and received at least one month before the proposed date of you leave. In the event that any part of your annual leave is not approved due to the demands of your job, it will be rescheduled. During your leave, you are required to kindly leave your contract phone, e-mail and contact addresses with the Senior Manager (Administration & Finance) for the purpose of contact if necessary. Counsel submitted that from the above conditions of service, the claimant is entitled to travel to his “country of origin” during his leave and the company shall provide return tickets for the claimant and his wife. The claimant did not lead evidence to show when and how he applied for leave or the return ticket from the defendants and if the company refused same. Under cross – examination , the claimant stated that there was no communication from the company that he will be entitled to N600,000 per annum or any other amount in lieu of return ticket. There is no evidence of how the claimant arrived at the claim of N1,200,000 in lieu of return ticket. Still under cross examination, the claimant stated that he traveled only ones throughout his employment with the defendants and that the defendants paid for the ticket. It is therefore submitted that claims or pleadings not supported by evidence, as in this case, are dead on arrival. In Ochin V Ekpechi (2000) 5 NWLR (Pt. 656) Pg. 225 at 240, the Court of Appeal stated:- Pleadings not admitted are as good as dead unless proved in court ….. since pleadings have neither brain nor mouth to think and talk, it is the duty of the party to lead evidence on his pleadings. Where no evidence is led, the court will assume that the pleadings are abandoned. On the claimant claim for the payment of the sum of N5,000,000.00 being value of 5 million shares of 1 kobo each of the 1st defendant company which the 1st defendant offered/allotted him as additional incentive. This claim purportedly is informed by item No. 5 of the letter of employment which states:- As Managing Director/Chief Operating Officer of the company and in recognition of your knowledge, technical know-how, experience, and goodwill, the board of directors has further approved an additional incentive for you by allotment of 5,000,000 (five million) shares, valued at N1.00 per share in ABC Shelters Ltd. Counsel submitted that it is sheer misconceived excitement to reason that an offer of allotment of 5,000,000 shares at N1.00 each translate to a windfall of N5,000,000 cash into the pocket of the claimant. The 5,000,000 shares is a mere offer which the claimant failed to produce evidence to show acceptance of the shares or evidence that he had paid for the shares or that the shares were issued to him in line with the Companies and Allied Matters Act, 1990. Under cross-examination, the claimant admitted that he did not pay for the shares because it was not necessary. The claimant also stated that he did not write the company to implement the transfer of shares to him and he did not know if the company made profit nor did he see the audited report of the financial standing of the company. He also admitted that he did not know the current value of each share. Counsel submitted that what the claimant has, at best, was an offer and he had not gone through the strict processes as prescribed and regulated in Section 129 of the Companies and Allied Matters Act, 1990 and Section 31 of Companies Regulation 2012 (made pursuant to Sections 16, 585 and 609 of CAMA, LFN 2004) on allotment of shares. Clearly, the claimant is not yet a shareholder in the company. The claim for N5,000,000 is not only misconceived and mischievous but a gold digging exercise since the claimant has failed to prove that he is a shareholder in the 1st defendant. And the only way to prove this is by tendering before the court a certified true copy of Return of Allotment of Shares; Form CAC 2 with his name and the number of shares issued him clearly spelt out. Assuming without conceding that the claimant has 5,000,000 shares in the 1st defendant, Section 114 of Companies and Allied Matters Act, 1990 clearly states that the rights and liabilities attaching to the shares of a company shall:- a. be dependent on the terms of issue and of the company’s articles; and b. notwithstanding anything to the contrary in the terms or the articles, include the right to attend any general meeting of the company and vote at such a meeting. Also S. 115 of CAMA provides:- The shares or other interests of a member in a company shall be properly transferable in the manner provided in the articles of association of the company. Counsel submitted that the claimant has failed to furnish the particulars of his shares via-a-vis the terms of the issue and/or how he became entitled to N5,000,000 cash. The import of the above sections of CAMA is that holding shares entitles a shareholder to attend and vote during general meetings. Shares are propriety rights and can be transferred or sold by the shareholder in accord with the article of the company. And at best, a shareholder is entitled to dividends, if any, based on the number of shares he holds. This was succinctly captured by Olakunle Orojo in the book “Company Law and Practice in Nigeria” at Page 128:- The other rights usually attached to a share include, for example, the right to dividend, if any, to participate in the distribution of assets in the winding up of the company, to receive notice of general meetings. It is interesting to note that in his response during cross examination to the question of what was the value of each of the unit of shares he holds, the claimant simply said “I don’t know”. Furthermore, when asked how much the company earned and what profit the 1st defendant made, he said he did not know. The counsel then said it is clear that the claimant simply equated 5,000,000 shares to translate literally to N5,000,000 cash. Some important questions to raise here are:- Assuming without conceding that the claimant is indeed a shareholder in the 1st defendant, is he relinquishing or selling or abdicating his shares in the company and to whom? And what is the basis of claiming the sum? Certainly, assuming he is a shareholder, there is no evidence before the court to show that that the 1st defendant offered to buy the shares and he cannot claim indebtedness against the defendants. In respect of issue No. B which is:- Whether having regard to evidence led thereof, the defendants are entitled to their counter-claim? The counsel said the defendants counter-claim for the cost of the Hilux Double Cabin Pick Up Van in the possession of the claimant valued at N3,030,000. During trial, the claimants through Ezekiel Uzochukwu, DW1, tendered cash receipt of purchase of the said vehicle which was admitted in evidence as DW1A. Counter-claim as it relates to salary advances and excess accommodation allowances have been addressed on issue A above. Counsel urged the court, in circumstances to dismiss the claimant’s suit and enter Judgment in favour of the defendants/counter-claimant. The claimant counsel also adopted his final address wherein a sole issue is distilled for the consideration of the court to wit:- Whether the claimant was owed any outstanding arrears of salary (and other entitlements) by the defendants to entitle him to the reliefs in his complaint. Before going into the argument raised for the determination of the court the claimant testified that he was offered an appointment by the 1st defendant as its Managing Director/Chief Operating Officer: MD/COO via letter of appointment dated April 17, 2008: Exhibit PWA which employment he took up till April 7, 2011. The said Exhibit PWA also contained the conditions of service of the claimant as pleaded in paragraphs 5 and 7 of the claimant statement in support of complaint and witness statement on Oath respectively. These averments were admitted by the defendants in paragraph 5 of the defendants joints statement of defence. It is submitted that the claimant was a former employee of the 1st defendant on terms and conditions contained in Exhibit PWA. The claimant further testified that the defendants refused to pay his salary and other entitlements from May 2009 till he was forced to resign in April 7, 2011. See paragraph 6 and 8 of statement in support and witness statement on Oath respectively. While the 1st defendant did not deny paragraph 8 of statement in support, only the 2nd and 3rd defendants offered a feeble and general denial of the claimant averments of not been paid his salary since May 2009. See paragraphs 5 and 6 of defendant’s joint statement of defence. The counsel also submitted that the 1st defendant did not deny the claimant’s allegation of not being paid his salary and other entitlements since May 2009. It is trite that facts/averments not denied is taken as admitted by the opposing party - BANK OF THE NORTH V ALIYU (1999) 7 NWLR (PT 612) 622; OMONEGBE V LAWANI (1980) 3 – 4 SC 108. That the 1st defendant has admitted not paying the claimants his salary and other entitlements since May 2009 and the Honourable Court is urged to so hold. The 2nd and 3rd defendants rather than properly traverse paragraph 6 of the statement in support stated that the claimant was inept and inefficient resulting in the 1st defendant not earning any income. But under cross-examination, both defence witnesses admitted that no compliant, warning query was ever issued to the claimant about his performance until his resignation. It is submitted that having not complained about the competence of the claimant throughout his tenure as MD/COO of the 1st defendant, the defendants are estopped from raising same during this trial. AG FED V AG. ABIA & ORS (2002) 96 LRCN 559 @ 811 – 812; UBE V OSUJI (1998) 10 SCNJ 75 (1998) NWLR (PT. 580) 1 @ 8 – 9; AMAYO V BTM (1991) NWLR (PT. 207) 137; HARUNA V ASHIRU (1999) 7 NWLR (PT. 612) 579. The counsel argued the claimant testified that the defendants only paid the sum of N1,100,000 (One Million One Hundred Thousand Naira) out of the sum of N2,500,000 (Two Million Five Hundred Thousand Naira) for his accommodation allowance for 2009 – 2010 paragraph 7 of statement in support. That the 1st defendant in defence pleaded paragraph 8 of joint statement of defence that the said amount was paid by the 2nd defendant on behalf of the 1st defendant as a loan on 1/9/2009. That no evidence of the above denial/averment was given by either of the two witnesses called by the defendants in their witnesses of statement on Oath. The law is settled on the treatment of facts pleaded on which no evidence is led, same is taken as abandoned and of no moment. IGWEGBE V EZUMA (1999) 6 NWLR (PT. 606) 228; OMOBORIOWO V AJASIN (1984) 1 SCNLR 108; OJIKUTU V BELLO (1954) 14 WACA 620. It is therefore submitted that the defendants have abandoned the averments in paragraph 8 of their joint statement of defence and paragraph 7 of the statement in support should be deemed as admitted. The counsel drew the attention of the court to the defendants PLEADINGS NOT PROVED That the defendants in paragraph 9 of their joint statement of defence stated that the claimant was paid the sum of N2,500,000 (Two Million Five Hundred Thousand Naira) vide cheque No. 22224299 and further paid the sum of N5,000,000 (Five Million Naira) through the 3rd defendant for years 2010 – 2012. Aside form the fact that the copy of the said cheque was not tendered, the bank against whom the cheque was drawn was not stated neither was evidence of the said averments given by the defendants 2 witnesses. Also the 3 defendant was not called in evidence of the payment he allegedly made. That earlier submitted hearsay evidence is inadmissible and pleadings for which no evidence is led is deemed abandoned. This Honourable Court is urged to discountenance the said paragraph 9 of the defendants joint statement of defence as same is deemed abandoned in the absence of any evidence in support of same. IGWEGBE V EZUMA (Supra). According to the counsel to the claimant the defendants equally in paragraphs 12 and 13 of their joint statement of defence alleged that the claimant was paid the sum of N150,000 (One Hundred Thousand Naira) in two installment of N50,000 (Fifty Thousand Naira) and N100,000 (One Hundred Thousand Naira) by one Jane Agbo and that the claimant received the sum of N500,000 (Five Hundred Thousand Naira) which he return to sign for respectively. But the said paragraphs suffer the same faith as paragraphs 8 and 9 of their joint statement of defence as no evidence of the said payments were given by either of the defendants witnesses in their witness statement on Oath or under cross – examination. The only evidence of unacknowledged payments was given by DW2 (Mrs Edith Ogu) at paragraph 7 of her witness statement on Oath. The evidence aside from being mere hearsay was not pleaded in the defendants’ joint statement of defence. It is submitted that evidence of facts not pleaded is inadmissible. The said witness (Edith Ogu) under cross-examination admitted that she was neither present when the alleged money was given to the claimant by the 2nd defendant nor when the 2nd defendant informed the said Mr. Ezekiel Ugochukwu (DW1) that he gave the claimant the said sum. He then contended earlier, hearsay evidence as against direct evidence is not valid and should be rejected. That evidence of on pleaded facts go to no issue: OTARU AND SONS LTD V IDRIS (1999) 6 NWLR (PT. 606) 330; UREDI V DADA (1988) 1 NWLR (PT. 69) 237; EKPENYONG V NYONG (1975) 2 SC 71. The learned counsel also referred to the DW2 (Edith Ogu’s) evidence at paragraph 7 of her witness statement on Oath that she was informed by DW1 (Ezekiel Ugochukwu) that he Ezekiel Ugochulwu was informed by the 2nd defendant that he (the 2nd defendant) gave the claimant the sum of N650,000 (Six Hundred Thousand Naira) was never mentioned by the said DW1 Ezekiel Ugochukwu in his evidence in chief (witness statement on Oath). That while the defendants alleged that the total sum received by the claimant as salary advance was N1,756,000 (One Million Seven Hundred and Fifty Six Thousand Naira) at paragraph 15 of the defendants joint statement of defence, DW2 (Edith Ogu) at paragraphs 5 and 6 of her witness statement on Oath testified that the total sum received by the claimant as salary advance was N1,856,000 (One Million Eight Hundred and Fifty-six Thousand Naira). It is trite that evidence at variance with pleadings is inadmissible and unpleaded evidence is equally of no moment OTARU V IDRISS (Supra); UREDI V DADA (Supra); OLANREWAJU V BAMGBOYE (1987) 1 NWLR (PT. 60) 353. He argued the defendants were only able to give evidence of salary advance to the claimant totaling N1,756,000 (One Million Seven and Fifty-six Thousand Naira) by virtue of Exhibits DW 1 – 7 (handwritten acknowledgements of the claimant) which is in tandem with the evidence of the claimant at paragraph 10 of his witness statement on Oath that the defendants always paid him in cash which he always acknowledged. The claimant therefore entitled to his claim less the sum of N1,756,000 (One Million Seven Hundred and Fifty-six Thousand Naira) The counsel further submitted that the afore stated submission is further fortified by the evidence of DW1 and DW2 under cross examination that the claimant had not been paid any sum of money by the defendants since the board meeting of the 1st defendant during which the claimant was asked to resign his appointment with the 1st defendant. That the content of Exhibit PWE (the 1st defendant’s acceptance of the claimant’s resignation) is res ipsa concerning the 1st defendant’s salary arrears liability to the claimant. That Exhibit PWE flies in the face of the contradicting denials of the defendants who claimed in paragraph 10 of their joint statement of defence that the claimant is indebted to the 1st defendant to the tune of N3,000,00 (Three Million Naira) but in the evidence of their witness DW1 (Ezekiel Ugochukwu) at paragraph 20 of his witness statement on Oath, he stated that the claimant is indebted to the 1st defendant to the tune of N8,036,000 (Eight Million and Thirty –six Thousand Naira). As earlier submitted it is settled that evidence at variance with pleadings goes to no issue WEST AFRICAN CHEMICAL LTD V CAROLINE POULTRY LTD (2000) 2 NWLR (PT. 644) 197. The counsel also contended that the defendants’ averment in paragraph 10 of their joint statement of defence that the claimant is indebted to the 1st defendant to the tune of N8,036,000 was never pleaded. The defendants’ allegation of indebtedness against the claimant is further enfeebled by paragraphs 23 and 27 of their joint statement of defence. A close scrutiny of the aforestated paragraphs would reveal that rather than establishing the claimant’s indebtedness to the 1st defendant, the defendants attempted to justify their indebtedness to the claimant. It is therefore submitted that the defendants denial of liability and claim of indebtedness against the claimant is mischievous, misleading and a reprehensible attempt to mislead this Honourable Court. On the Return Ticket to Romania the counsel to the claimant submitted on the issue of the claimant’s return tickets for both himself and his spouse to his home country of Romania, for years 2009 and 2010 as contained in clause 4 of Exhibit PWA (contract of employment), the defendants did not deny the said averment. It is therefore submitted that in the absence of the defendants’ denial, the claimant’s aforesaid averment be deemed admitted by the defendants. OMOREGBE V LAWANI (1980) 3 – 4 SC 108; BANK OF THE NORTH V ALIYU (SUPRA); IKUOMOLA V ONIWAYA (1990) 4 NWLR (PT. 146) 617. Finally, the counsel argued the issue of the claimant’s claim for the value of 5 million shares of the 1st defendant valued at N1 (one naira) per share offered as additional incentive to the claimant in Exhibit PWA, that this honourable court should deem same as admitted by reason of the defendants’ non denial of the said averment. That in paragraph 5 of Exhibit PWA is clear and unambiguous and should be given its literal interpretation. The Oxford Advanced Learner’s Dictionary (international students edition) new 8th Edition defines incentive as ‘something that encourages you to do something’. Paragraph 5 of Exhibit PWA did not request or stipulates any condition attached to the 1st defendant’s allotment of its shares or require the claimant to pay for the said shares. The claimant tendered Exhibit PWF; a certified true copy of form CAC 7 which is the return of allotment of the 1st defendant’s shares filed at the registry of the Corporate Affairs Commission. CAC which did not reflect any allotment of shares to the claimant contrary to the defendants’ claim. That the only feeble denial of the defendants’ to the claimant’s assertion was that a transfer of shares to the claimant was done without adducing any evidence: documentary or otherwise to counter Exhibit PWF. The law is settled that parol evidence is not be allowed to contradict documentary evidence (except in certain conditions). See S. 128 of the Evidence Act (as amended); MANFAG LTD V M.S.O.I. LTD 14 NWLR (PT. 105) 109; KIMDEY V MILITARY GOVERNOR GONGOLA (1988) 2 NWLR (PT. 77) 445. In conclusion the learned counsel submitted that the claimant is entitled to his reliefs as contained in his complaint less the sum of N1,756,000 (One Million Seven Hundred and Fifty-six Naira) and this Honourable Court urged to so hold. Having carefully considered the submission, authorities and oral evidence, the issue for the court to determine is whether the claimant is entitled to the reliefs sought. The brief facts of this case are that the claimant was employed by the defendants as the Managing Director/Chief Operating Officer by a letter of appointment dated 11th April, 2008, Exhibit PWA. The claimant resigned his appointment on the 7th of April, 2011 on the instruction of the defendants. After his resignation he demanded for his unpaid salaries and other entitlement already stated above. In deciding the rights and obligations of the parties the court looks at the contract of service binding the claimant and the defendants. The contractual relationship between the defendants and the claimant was manifested in the employment letter Exhibit PWA. This was the agreement between claimant and the defendants in this suit. This was the consideration the claimant accepted. It is trite that in a contract of employment, parties are bound by the terms of contract Amodu V Amode & Anor (2011) 23 NWLR (Pt. 66) 352 at 576. In this suit the claimant is demanding his 23 months unpaid salaries from May 2009 to 7th April, 2011. In his resignation letter dated April 7th, 2011, Exhibit PWD he claimed the sum 66,560 (Euros) the sum of N600,000.00 per year as his allowance for traveling to country of origin (to and fro) at the expense of the company. However, on the receipt of his letter of resignation the defendants accepted the resignation of the claimant via a letter dated 25th April 2011, making some observation. The letter of acceptance of resignation dated 25th April, 2011 is reproduced under:- Abc Shelters Property Development & Management April 25, 2011. Engr. Lica Orenstein B5 Street (2nd gate) CITEC Estate (By Jabi Airport Road) Abuja. Tel: 08036018026. Dear Engr. Orenstein, ACCEPTANCE OF RESIGNATION I refer to your letter of “RESIGNATION OF APPOINTMENT” dated 7th April, 2011. I am directed by the Board of Directors of abc Shelters Limited, to convey to you its acceptance of your resignation with effect from March 31, 2011. 2. For the purpose of clarification, and avoidance of doubt, kindly refer to item 4(a) of your letter of “OFFER OF APPOINTMENT” dated April 17, 2008. You will notice under this item that your actual monthly salary as distinct from other entitlements is E4,200.00 (four thousand, two hundred euros) per month and not E5,200.00 (five thousand, two hundred euros) per month as you stated in your letter of resignation under reference. 3. Following the decision of the Board of Directors at its meeting held on April 6, 2011, of which you were in attendance, you are to the paid 100% of your outstanding salary from May 2009 to July 2009, and 50% from August 2009 to March 2011, respectively. This amounts to the sum of E54,600.00 (fifty-four thousand, six hundred euros gross). You will recall that before the Board conceded the above payment at its last meeting, one of the issues discussed was the state of the company, especially the fact that the company has neither executed any new project nor earned any income from when you assumed office to date. 4. Therefore, the Board will endeavour to settle the agreed payment as follows:- (a). Within 30 days of receipt and acceptance of this letter, you will be paid E20,000.00 (twenty thousand euros gross) at first instance. (b). Thereafter, another sum of E20,000.00 (twenty thousand euros gross) will be paid to you within 90 days upon submission of all company documents, office keys and the company vehicle in your possession to the undersigned. (c). Recall that your accommodation of N5,000,000.00 (five million naira @ N2,500,000.00 per annum for two years) was paid by the company. However, the Board has graciously conceded the remaining amount of the rent for the first one year (i.e. up to June 30, 2011) to you. The balance of the second year rent (i.e. N2,500,000.00) shall be deducted from your final payment of E14,600 (fourteen thousand six hundred euros gross) at the prevailing exchange rate, or you will be required to hand over your residence and the keys thereof to the undersigned upon the expiration of the first year rent (i.e. June 30, 2011) before collection of your final payment. 5. The Chairman and members of the Board of Directors of abc Shelters wish you success in your future endeavours. Thank you. For: abc Shelters Limited SIGNED Danjuma Rango Company Secretary/Legal Adviser. It is settled law that parties are bound by the terms of their agreement and no party can breach its terms. The Supreme Court in Radle Ventures Ltd V Hon. MIN. FCT (2010) ALL FWLR (PT. 519) particularly at P. 1099 PARAS D – F and P. 1092 PARAS E – G held:- Where a legally permitted contract has been concluded by parties … Parties to a contract and the courts are bound by the terms of the contract. Neither parties to a contract nor the court can be allowed to bring into the contract any extraneous terms not agreed upon by the parties. No party is allowed in law to unilaterally vary the contents and terms of a written contract except by mutual agreement of parties thereto in writing as well. The letter dated 26th April 2011 Exhibit PWE the letter of acceptance of resignation varying the terms of the contract agreed to by parties is a unilateral letter and not parties mutual agreement to vary the written terms of Exhibit PWA. Maryam Isiyaku V Dr. J. S. Zwingina (2001) FWLR (Pt. 72) 2096. In deciding the rights and obligations therefore the court will recourse only to the contents and terms stated in Exhibit PWA. In his claims, the first claims are for the payment of his unpaid salaries for 23 months, from May 2009 to March 2011 at the rate of E5,120 per month. The letter offer of employment put the salary at E4,150 euros as the salary per month and not E5,150 euros as claimed. It is the court’s order that the claimant cannot be paid anything less than his unpaid salary for 23 months at the rate of E4,150 euros. This of course is less any amount he was owing the defendants when he was in the employment. It was the practice of the organization to give loans or salary advance to the claimant while in the service of the defendants. The total amount the claimant is owing the defendants as proved at the trial is N1,756.00 (One Million Seven Hundred and Fifty-six Thousand Naira) Only. The loans and salary advances granted to the claimant identified and submitted by Edith Ogu are as followes:- 1. Exhibit E1 - I.O.U . to M.D. on 1/9/09 - N20,000.00 2. Exhibit E2 - I.O.U. to Engr. Orestein 21/10/09 - N100,000.00 3. Exhibit E3 - Salary advance “ 13/11/09 - N50,000.00 4. Exhibit E4 - Salary advance “ 15/12/09 - 2.500 Euros 5. Exhibit E5 - Loan “ 07/11/2010 - N200,000.00 From Prof. Jerry Gana Chairman Abc Shelters 6. Exhibit E6 - Salary Advance Eng Orestein 18/02/2010 N216,000.00 7. Exhibit E7 – Salary Eng. Orestein - 18/05/2010 N600,000.00 8. Exhibit E - loan Eng Orestein - 23/10/2010 N100,000.00 From Mr. Ike Neliaku The total of this is put at N1,756.00 (One Million Seven Hundred and Fifty-six Thousand Naira) Only. This figure has been verified in the course of trial. It follows therefore that the claimant must be paid his salaries for 23 months less N1,750,000.00 (One Million Seven Hundred and Fifty-sex Thousand Naira) Only. The claimant is demanding for the sum of One Million, Four Hundred Thousand Naira) Only (N1,400,000.00) being the balance of the unpaid accommodation allowance for the year 2009/2010 and the sum of N208,333.3 being the prorated accommodation allowance for 10 months from June 2010 to March 2011. On this issue the defendant submitted that the claimant was paid in excess of what was due. That the claimant received the cumulative sum of N8,600,000.00 only for accommodation over the period. The defendant claimed to be entitled to a refund of N1,516,666.67 from the defendant. Lastly, the claimant is demanding the sum of N1,200,000.00 (One Million Two Hundred Thousand Naira) Only as the cost of return ticket to Romania for the year 2009 – 2010. It is my view, that the claimant can only claim this amount unless he travels to Romania. The claimant has not informed the court that he took such a trip to Romania in the year 2009 – 2020. He himself admitted that the defendant paid the trip to Romania the last time he traveled. The letter of offer of employment did not say money will be paid to claimant in lieu of traveling to Romania. This claim can therefore, be activated if only he travels out to Romania. The court therefore, declines to award the sum of N1.2M to the claimant. The claimant accepted and admitted he collected the sum of N5M only for accommodation. Other sum of money the defendants claimed he collect were denied by him and the defendant did not prove evidence to show that the claimant actually collected the money. For accommodation the claimant only collected the sum of N5M (Five Million Naira) Only. The difference of N3,600M was not proved by the defendants. The next claim of the claimant is for the sum of N5,000,000.00 (Five Million Naira) Only being the cost of 5,000,000.00 shares allotted to the claimant as an additional incentive. To the defendants the 1st defendant has not offered to buy the shares and that he cannot claim indebtedness against other defendants. I agree with the defendants what was offered were shares, and not money in lieu. The defendant cannot therefore pay the sum of N5M the claimant is demanding for. To the claimant Exhibit PWF which is a certified true copy of Form CA C7 which is the return of allotment of the 1st defendant’s shares filed at the registry of the Corporate Affairs Commission did not reflect any allotment of shares to the claimant, contrary to the defendant’s claim. I must also state that the issue of issues of allotment of shares is within the purview of Federal High Court and National Industrial Court of Nigeria. I now proceed to determine the counter-claims of the defendants counter claimant which are as follows. 1. That claimant/defendant to counter has in his possession vehicle a Hilux Double Cabin Pick Up Van which the 1st defendant/claimant bought at N3,030,000 (Three Million Thirty-three Thousand Naira) Only which he has neglected and/or refused to handover after his resignation from service of the 1st defendant. The 1st defendant is hereby claiming the value of the said vehicle. The purchase receipt is hereby attached as Exhibit “D”. 2. That the claimant/defendant to counter claim collected various sums of money which he refused to acknowledge receipt for to the tune of 650,000 (Six Hundred and Fifty Thousand Naira) Only. 3. That the claimant/defendant also collected various sums of monies from the 1st defendant/claimant totaling N1,756,000.00 (One Million Seven Hundred and Fifty-six Thousand Naira) Only as salary advance. 4. That claimant/defendant collected the sum of 8,600,000 from the 1st defendant/claimant as rent and has refused to fund the excess of N3,600,000 (Three Million, Six Hundred Thousand Naira) Only in excess of his entitlement in spite of ceasing to be an employee of the defendant. In fact as at the end of October 2010 the claimant has stopped completely from coming to the office of the 1st defendant and threatened to sue the 1st defendant in a letter written by his Solicitors Festus Keyamo attached to his claim. The claimant is only entitled to rent for the period from June 2008 – June 2009, June 2009 – June 2010 i.e. 2 years. By October 2010 he has stopped coming to work. 5. That based on the board meeting held on the 6/4/2011,it was unanimously agreed by all parties present that rather than sack the claimant/defendant he should be allowed to resign and an agreement was also reached as to how his salaries would be paid to him, hence the letter of resignation and acceptance between the parties and the only gray area as to whether the amount should be 54,600 Euros which the claimant/defendant to counter-claimant unilaterally computed by himself. Almost all the issues raised in the counter-claim have been tackled in the course of the writing of this Judgment. The only issue left for the court to decide is the issue of Hilux Double Cabin Van still in the procession of the claimant. It is the court order that the claimant should release the van immediately. It is not possible for the court to award to the counter-claimants the initial amount paid for the van. The counter-claimant did not produce the current market value of the car. For this reason, the claimant claims succeeds in part is entitled to his full 23 months salaries (from May 2009 – March 2011) excluding his indebtedness to the defendant, his 5,000,000.00 (Five Million) shares. Judgment is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.