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REPRESENTATION Peter Alonge for the Claimant. F.E. Eke with Omolola Lawal & Victor Ukaegbu for the Defendant JUDGMENT The Claimant approached this Court via her General Form of Complaint dated 25/9/13 and sought the following reliefs - 1. A Declaration that the summary dismissal of the Claimant by the Defendant on allegations amounting to misconduct without fair hearing is unfair, unlawful and constitutes a breach of the contract of employment between the Claimant and the Defendant. 2. An Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of =N4=22,515.49 (Four Hundred and Twenty-Two Thousand, Five Hundred and Fifteen Naira, Forty-Nine Kobo) being the unpaid salaries, allowances, commissions and terminal benefits due to the Claimant from the Defendant. 3. An Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of =N=204.000.00 (Two Hundred and Four Thousand Naira) being the sum not remitted to the Claimant’s pension fund administrator after Claimant’s contributions were deducted from her salaries. 4. An Order of this Honourable Court directing the Defendant to pay to the Lagos State Internal Revenue Service on account of the Claimant the sum of =N=32, 000.00 (Thirty-Two Thousand Naira) being the sum deducted from the Claimant’s salaries as income tax but was not remitted to the Lagos State Inland Revenue Service by the Defendant. 5. The Sum of =N=2,000,000.00 (Two Million Naira) as general damages for wrongful termination of employment and breach of contract. 6. An Order of this Honourable Court directing the Defendant to pay to the Claimant the sum =N=120,000.00 (One Hundred and Twenty Thousand Naira) being Solicitor's fee incurred by the Claimant in prosecuting this suit. 7. Interest on the above mentioned sums at the rate of 21% per annum from the date of filing this suit until judgment is given and at the rate of 10% per annum on the judgment sum till same is fully paid. 8. The Costs of filing this suit. Claimant accompanied his complaint with a statement of facts, list of witness, written deposition of witness list and copies of documents to be relied upon at the trial of this case. Upon service, the Defendant entered an appearance and filed a statement of defence accompanying same with all processes as required by the Rules of Court. The Defendant also sought the following counter claims against the Claimant - 1. The sum of =N=72,868.70k (Seventy-two thousand eight hundred and sixty eight Naira Seventy kobo) only being amount over paid on salary to the defendant to counter claim in Enterprise Microfinance Bank Limited. 2. Interest on the said sum of =N=72,868.70k at the rate of 25% per annum from the 8/1/10 till judgment and thereafter at the rate of 10% per annum until the entire judgment sum is fully and finally liquidated. 3. Cost of this action and/or any other consequential relief as this Honourable Court may deem fit to make in the circumstance. The hearing of this case commenced on 19/3/14 when the Claimant opened her case and testified as CW1. Witness adopted her written witness deposition made on 25/9/13 as her evidence in chief and tendered 17 documents which were admitted and marked as Exh. C1-Exh. C17. The case for the Claimant, in brief, is that she was employed by the Defendant; that her salary was not fully paid at some point; that the arrangement was for the Defendant to pay the shortfall later; that she was subsequently seconded to Enterprise Microfinace Bank Limited; that during her stay with the said Microfinance Bank, the Defendant was not paying her salaries; that her salaries for the period were paid by the Microfinance Bank; that the Defendant neither paid her deducted tax to the appropriate authority nor remitted her pensions deduction during the same period in accordance with Pension Reforms Act; that the Defendant dismissed her without notice and has also failed or refused to pay her terminal benefit despite demands. Under cross examination, CW1 stated that she worked the less 2 years with Defendant; that she worked for Enterprise Microfinance Bank for 2 months and some days; that while she was with Enterprise Microfinance Bank she considered herself as being a staff of Defendant and that he is aware that if found guilty of disobedience to lawful authority or conduct likely to bring the image of Defendant to disrepute that she is not entitled to one month notice. Witness added that there is nothing in Exh.. C6 that she should negotiate with Enterprise Microfinance Bank but she was told orally; that she negotiated with Enterprise Microfinance Bank based on the oral advise she was given; that she was earning =N=10,000.00 at Enterprise Microfinance Bank more than she was earning at the Head office; that at the time Enterprise Microfinance Bank was paying me Defendant was not paying her any salary and that it showed there were agreements between them and that she received queries from the Defendant. According to the witness respecting the queries she complained about the time to the authority and responded accordingly; that while with Enterprise Microfinance Bank she was always reporting to the Defendant as stated in her letter of secondment. Witness added that Defendant deals in Stock broking, Property and Investment.; that reduction of salary by the Defendant was not personal to her alone; that the salary of other staff were also slashed; that Defendant stated that when things normalize all deducted salaries would be restored and paid back; that she does not know if others whose salaries were deducted have been paid back; that mail was sent to all staff by Managing Director stating that when the Defendant stabilized it would pay back all deducted portion of salaries; that to an extent the situation has normalized with Defendant; that she worked in Bureau De Change Department of Defendant and she knew the Defendant was making money there; that she does not know if more people have left Defendant; that even if she knew she would not withdraw her claims; that she did not receive any letter of confirmation and that she only received mail stating that her appointment was confirmed and letter to follow later. On 17/12/14, the Defendant opened its case and called one Kemi Ajilore as its lone witness. DW1 adopted her witness statement on oath made on 25/11/13 as her evidence in chief and tendered 10 documents as exhibits. The documents were so admitted and marked as Exh. D1 - Exh. D10. It was the case for the Defendant that it was not owing the Claimant any outstanding salaries or exit benefits; that it dismissed the Claimant in accordance with her terms of employment; that Claimant was not a confirmed staff; that it indeed over paid the Claimant hence its counterclaim and that the claims of the Claimant are unmeritorious. Under cross examination, the DW1 testified that he is the Head of Corporate Resources of the Defendant; that she has been with Defendant since 2005; that for confirmation of employment a staff will be on probation followed by performance appraisal; that Claimant worked with Defendant for close to 2 years; that as at the time he was not the Head of Corporate Resources; that he is not sure which is higher between executive staff and support staff; that an Executive Officer can do the work of a Financial Controller; that movement from one grade to another is a promotion; that the suspended part of Claimant salary was never paid to her; that it was indeed never paid to any staff; that he could not say precisely how many staff Defendant has at the time but were more than five; that he heard of Pensions Account; that he is aware of the requirement for employers of more than five staff to register under the Account; that he does not have the figure of how much was deducted and how much remitted as tax to the Lagos State Government; that the Defendant has evidence of remission because staff were given Tax Card from Lagos State Government; that he does not have the figure of how much Claimant was to earn between May and September 2009; that he does not know the exact amount paid to the Claimant by the Defendant when Claimant was seconded to Enterprise Microfinance Bank where Defendant have substantial holding; that Claimant did not give the weekly and monthly reports as expected; that Defendant did not pay the Claimant while she was with the Enterprise Microfinance Bank because that was the agreement for her to be paid by the Enterprise Microfinance Bank; that Enterprise Microfinance Bank is a limited liability Company and that there were no complaints from Enterprise Microfinance Bank safe the Board minutes. It was also the evidence of the witness under cross examination that disciplinary procedure is that Defendant gives queries, if no change; there may be suspension or dismissal depending on the weight of the offence; that there is no length of time between the two steps before Claimant was recalled; that Claimant was given opportunity to defend herself before her appointment was terminated; that the first Query was in writing aside the oral ones was given in December 2009 and that he is not aware that Enterprise Microfinance Bank closed for the year. At the close of hearing and pursuant to the direction of the Court, learned Counsel on either side filed their final written addresses. The Defendant's final written address was filed on 17/8/15. In it learned Counsel set down a lone issue for determination as follows - Whether on the preponderance of evidence, the claimant has proved her claims against the defendant. Arguing this lone issue, learned Counsel submitted that the Claimant has woefully failed to prove her claims as required by law; that the law is trite that he who asserts must prove and that the Court has a duty to carefully consider all evidence placed before it citing Afrilec Limited v. Lee (2013)6 NWLR (Pt. 349) 1 at 24, Onuwawav v. Ezeokoli (2002)5 NWLR (Pt. 760) 353, Kaiyaoja v. Egunia (1974)12 SC 55 & Hamza v. Kure (2010) NWLR (Pt. 1203) 630 at 654. According to learned Counsel, the Claimant is not a witness of truth as contradictions were found between her written deposition and oral evidence; that while Claimant as CW1 claimed in her deposition that her appointment was confirmed by Defendant via e-mail dated 7/8/09 under cross examination she admitted that her appointment was not confirmed. Learned Counsel submitted that the foundation for the claims of the Claimant was on whether or not her appointment was confirmed and that since in view of the contradiction it has become obvious that her appointment was not confirmed then she is not entitled to any of the claims. Counsel cited Dagaya v. State (2006)7 NWLR (Pt. 980) 637 at 677, Maduabum v. Nwosi (2010)13 NWLR (Pt. 1212) 623 at 657 & Daggash v. Bulama (2004)14 NWLR (Pt. 892) 144 at 150. Counsel submitted that the Claimant was dismissed by the Defendant for breach of the terms and conditions of her employment referring to Exh. C1 stating further that the Defendant was entitled to so do without giving any notice to the Claimant. Counsel added that although the Claimant claimed the Defendant did not remit her pensions and income tax, there is nothing before the Court to prove that assertion. Counsel submitted that the common law principle is that he who asserts, has a legal duty to prove the correctness of his assertion and that the totality of the evidence of the Claimant is absolutely shaky and contradictory. Learned Counsel added that proved its counter claim by calling DW1, that the Claimant failed, refused and neglected to respond to the Defendant/Counter Claimant's averments and deposition and that the position of the law is that unchallenged facts are deemed admitted, established and require no further proof. Counsel cited Jolasun v. Bamgboye (2010)18 NWLR (Pt. 1225) 285, ABU & Anor. v. Dr. Nwakego Molokwu (2003)9 NWLR (Pt. 825) 265 at 289, NPA v. VAI Co. (2010)3 NWLR (Pt. 1182)487 at 500 & Section 123, Evidence Act, 2011. Counsel urged the Court to grant the counter claims of the Defendant. Finally, learned Counsel prayed the Court to dismiss the case of the Claimant and grant all the counter claims as sought by the Defendant/Counter claimant. On 26/10/15, learned Counsel to the Claimant filed an 8-page final written address. In it Counsel set down the following issues for determination - 1. Whether or not the summary dismissal of the Claimant by the Defendant was unfair, wrongful and a breach of the contract of employment between the parties. 2. Whether or not the Claimant has proved and is entitled to her claim for unpaid salaries, allowances, commissions and terminal benefits from the Defendant as well as unremitted tax and pension deducted from her income. 3. Whether or not the Defendant has proved its counterclaim against the Claimant. Arguing issue 1, learned Counsel submitted that Claimant's appointment was confirmed by the Defendant by Exh. C2 (Exh. D4) and that by virtue of the terms and conditions of employment, the Claimant was entitled to one month notice in writing or salary in lieu of same upon termination of her employment. According to Counsel, by Exh. C1 Claimant's employment was to be on a 6-month period of probation and upon confirmation entitled to a month notice or salary in lieu. Counsel submitted that documents speak for themselves and that oral evidence cannot be admitted to add to, vary, subtract from or contradict the written terms of a transaction citing Larmie v. DPM & Services Limited (2005)18 NWLR (Pt. 958) 438 at 470, Bunge v. Governor of Rivers State (2006)12 NWLR (Pt. 995) 573 and Section 128(1), Evidence act, 2011. Learned Counsel further submitted that in cases of summary dismissal, the employee must be given ample opportunity to defend himself before any disciplinary action is taken against him, citing University of Calabar v. Essien (1996)10 NWLR (Pt. 447) 262, Yusuf v. Union Bank of Nigeria Plc (1996)39 LRCN 1139 at 1154 and Akumechiel v. Benue Cement Company Limited (1997)1 NWLR (Pt. 454) 695 at 703. Counsel thus submitted that though an employer is not bound to give reason for terminating the appointment of an employee, once it gives reason it is then bound to prove same citing Osisanya v. Afribank Nigeria Plc (2007)6 NWLR (Pt. 1031) 565 at 576-577; that the Defendant having given reason in the letter dated 8/1/10 for terminating the employment of the Claimant it is under an obligation to establish same. Counsel urged the Court to hold that the reason is not proved and that the Claimant was not afforded opportunity to defend herself. Furthermore Counsel submitted that having been seconded to Enterprise Microfinance Bank Limited Claimant not subject to the disciplinary procedure of the Defendant; that Exh. D6 & Exh. D7 could not be valid evaluations of the performance of the Claimant as acting Finance Controller of the Enterprise Microfinance Bank Limited and that only the said Microfinance Bank that could complain about the performance of the Claimant. Counsel urged the Court to hold that the Claimant was not given opportunity to defend herself of the allegations raised against her and to resolve the first issue in favor of the Claimant. On issue 2, learned Counsel submitted that Claimant stated in paragraphs 10-15 of her witness deposition on oath in detail how much the Defendant owed her and how same accrued; that Claimant also tendered statement of her salary account and Defendant's letter dated 8/10/08 in proof of how much the Defendant actually paid and the amount it ought to have paid. Counsel added that although by Exh. D5 & Exh. D10, Defendant claimed to have fully paid the Claimant, DW1 under cross examination stated that the Defendant did not pay the Claimant the suspended part of her salary and that she did not know how much the Claimant was entitled to be paid between May and September 2009 or how much the Defendant actually paid the Claimant. Counsel urged the Court to hold that, in the light of the evidence led and the applicable laws, the Claimant has proved her claims. On issue 3, Counsel submitted that it is an elemental principle of law that where a Defendant counter claims against a Claimant, the latter is duty bound to file a reply in defence to the counter claim otherwise the Court is obliged to assume that the Claimant has no defence to the counter claim and may enter Judgment for the Defendant accordingly, citing Ogonna v. A. G. Imo State (1992)1 NWLR (Pt. 220) 647 at 675 and Dabup v. Kolo (1993)9 NWLR (Pt. 317) 254. According to learned Counsel, a counter claim may be traversed by implication in the statement of claim. Referring to paragraphs 17, 18 and 19 of Claimant's deposition on oath Counsel submitted that those averments Claimant laid out the circumstances that led to her working with the Enterprise Microfinance Bank Limited and by paragraph 29 specifically refuted the claim that she was to refund any money to the Defendant; that there is sufficient evidence to the fact that Claimant worked for Enterprise Microfinance bank Limited between 14/10/09 and 8/1/10 during which period the Defendant did not pay any salary to the Claimant and that it only stands to reason that the Defendant expected the Microfinance bank to pay the Claimant. Counsel urged the Court to hold that the Defendant is not entitled to recover the sum claimed as counter claim. Learned Counsel prayed the Court to resolve all the issues in favor of the Claimant and grant all the reliefs sought. On 25/1/16, the Defendant filed a 5-page reply on points of law. I read the said reply on points of law. the process filed as a reply on points of law is a misconception of the intendment and expectation of such a process. A reply on points of law is not meant to be a window to reargue issues already canvassed. A reply on points of law is never an opportunity to have a second bite at the cherry. Essentially, it is meant to address any fresh issues of law canvassed by the Claimant/Respondent in this case. Not having fallen within the ambit of the law as expected, I find no utility in including the said reply on points of law in this Judgment. I carefully read and understood all the processes filed in this case. I reviewed all the exhibits tendered, listened to and watched the demeanor of the witnesses called at trial. In much the same vein, I listened with attention and understanding to the oral submissions of learned Counsel on either side. Having done all this, I have come to narrow the issues for determination in this case down to three as follows - 1. Whether the appointment of the Claimant was confirmed by the Defendant. 2. Whether the Claimant has proved all or any of her claims to be entitled to a grant of same. 3. Whether the Defendant has proved its counter claims to be entitled to a grant of same. In an action for wrongful termination of employment in particular and in action between employer and employee in general, the contract of service is usually the focus of the Court. See Ansambe v. B.O.N Limited (2005) NWLR (Pt. 928) 655. It is for the party seeking relief to exhibit same to the Court and prove to the Court how the said contract document has been breached. See Fakuade v. OAUTH (1993)5 NWLR (Pt. 291) 47 & Idoniboye-Obe v. NNPC (2003)2 NWLR (Pt. 805) 589 at 630. In like manner, in determining whether or not an appointment is confirmed, the contract of service together with other available documents must necessarily be the focus of the Court. Exh. C1 is the offer of employment document in this case. The document, on page 4, under the heading Probation/Confirmation of Appointment states the period of probation to be six months after which, subject to a satisfactory report of performance, receipt of a guarantee from an individual of repute attesting to the character/ integrity of the Claimant and two satisfactory reference, Claimant's appointment would be confirmed otherwise same may be extended for another length. By that same document, either party may give two weeks' pay in lieu of notice during the period of probation while on confirmation ''either party will give the other a month's notice of termination of employment or one month's pay in lieu of notice''. I have in evidence the testimony of the Claimant on oath under cross examination that her appointment was not confirmed. I also have the evidence of DW1 on oath that the appointment of the Claimant was not confirmed. In support of her case, the Claimant tendered, among others, Exh. C2. Defendant also tendered Exh. D4. Both exhibits have at least one thing in common. the name of the Claimant appeared on page 2 of these exhibits under the heading Confirmation of Employment. By these two exhibits, ''... letters shall be forwarded to the above listed staff advising them on their new status''. From these two exhibits can it still be maintained that the employment of the Claimant was not confirmed? Notwithstanding the testimonies of the witnesses called at trial, the available evidence before me points to the fact that the employment of the Claimant was confirmed. Even Exh. D4 tendered by the Defendant attested to this assertion. Claimant was to be issued a letter to that effect. That letter was not issued. The reason for that position was not made known at trial. It was not the business of the Claimant to issue herself with a letter of confirmation. It is important to point out that the recommendation of the Welfare Committee upon which the Management of the Defendant acted to confirm the employment of the Claimant was pursuant to the recent staff appraisal. The holding that the employment of the Claimant was confirmed is notwithstanding the testimonies of the witnesses called that Claimant's appointment was not confirmed. The law is trite that documentary is the best form of evidence upon which a Court may place reliance in resolving an issue in controversy. See Rangaza v. Mien Plastic Company Limited (2013) LPELR-2030 (CA) & Bongo v. Governor of Adamawa State (2013)2 NWLR (Pt. 1339) 403. In any event, the Court will not permit oral evidence to vary, add to or contradict the content of a written evidence. Having so held that the employment of the Claimant was confirmed, I further hold that the Claimant is entitled to requisite notice or payment in lieu of notice of termination. Now the next issue for determination is whether the employment was wrongfully determined or not. The Claimant seeks among others, an order of Court for a ''Declaration that the summary dismissal of the Claimant by the Defendant .... unlawful and constitutes a breach of contract between the Claimant and the Defendant''. Was the Clamant summarily dismissed by the Defendant? This issue is rather very critical. This is because there is a distinction between termination of a contract of employment and dismissal. Termination gives parties the right to determine the contract of employment at any time by giving the prescribed period of notice, Dismissal on the other hand is a disciplinary measure which leaves an employee with no exit benefits. See Adeko v. Ijebu-Ode District Council (1962)1 SCNLR 349 & UBN Plc v. Soares (2012)29 NLLR 329. The argument of both learned Counsel appear to proceed on the premise that the Claimant was dismissed from her employment. This would seem to be a misconception on both sides. The evidence before me in relation to this is Exh. C9 same as Exh. D2. Both exhibits were dated 8/1/10 and signed by Akintunde Kemi as Head, Corporate Resources and Yusuf Adewale as Group Head, Operations. Both exhibits are headed Termination of Appointment. I have decided to bring this to the fore for the simple reason that Termination of Appointment is not the same as Summary Dismissal. Of a truth, both effectively bring employment relationship to an end but with different consequences. For, while an employee whose employment is terminated is entitled to requisite notices or payment in lieu and all end of service benefit, a dismissed employee is not entitled to either of these. See Ante v. University of Calabar (2001)3 NWLR (Pt. 700) 239 CA & Ezenna v. KSHSMB (2011)1 NWLR (Pt. 1251) 89. I hold that by the evidence before me, the Claimant was not summarily dismissed by the Defendant but rather her appointment was terminated. Now on issue 2, the law is trite when an employee complains of wrongful or unlawful termination of his employment, the Court is to consider the contract between the parties and the terms and conditions regulating same. It is then up to the employee to show to the Court how those terms and conditions were not complied with. Exh. C1 is the Offer of Employment it has a 4-page attachment. On page 4 of this exhibit is a provision to the effect that ''On confirmation of appointment, either party will give the other a month's notice of termination of employment or one month's pay in lieu of notice''. I have held before now that the employment of the Claimant was confirmed. By the Termination of Appointment letter dated 8/1/10 (Exh. C9) the appointment of the Claimant was terminated with immediate effect. This is not in compliance with the terms and conditions of employment contract between the parties. The requisite notice or payment in lieu was neither given to the Claimant. I find and hold that the employment of the Claimant was wrongfully terminated for lack of requisite notice. I hold that the Claimant is entitled to be paid and the Defendant is here ordered to pay to the Claimant a one month salary in lieu of notice of termination. The second relief sought by the Claimant is for an Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of =N=422,515.49 (Four Hundred and Twenty-Two Thousand, Five Hundred and Fifteen Naira, Forty-Nine Kobo) being the unpaid salaries, allowances, commissions and terminal benefits due to the Claimant from the Defendant. In paragraph 14 of her witness deposition, the Claimant averred that as at October 14, the Defendant owed her salaries for the months of May to October 2009, leave allowance which became due in July 2009 and 13th Month payment which became due in August 2009. By Exh. D3, I found the salary of the Claimant to be =N=68,028.17 per month, Leave Allowance to be =N=81,033.80 and 13th month pay to be =N=68,028.17. Exh. D10 put forward as evidence of payment of salary to the Claimant by the Defendant was dated 5/6/09 and it was in respect of May, July and August 2009 salary. Even at, that the amount allegedly paid to the Claimant by that Exhibit was as follows - May-=N=45,794.39; July-=N=12,000.00 and August =N=10,000.00 totaling =N=67,794.39. The evidence of DW1 under cross examination was in no way of much help to the case of the Defendant having admitted that she did not know how much was due to the Claimant monthly and how much was indeed paid to her. The total salary of the Claimant from May-September 2009 was =N=340,140.85. The amount paid during the period by Exh. D10 was =N=67,794.46. I find and hold that the Defendant is liable to pay to the Claimant the sum of =N=272,346.46 being the outstanding salary arrears due to the Claimant from the Defendant. The Defendant is here ordered to pay the said amount to the Claimant forthwith. Pursuant to Exh. D3, the Defendant is ordered and directed to pay to the Claimant the sums of =N=81,033.80 and =N=68,028.17 as Leave Allowance and 13th month respectively. The Claimant also seeks an Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of =N=204.000.00 (Two Hundred and Four Thousand Naira) being the sum not remitted to the Claimant’s pension fund administrator after Claimant’s contributions were deducted from her salaries. The intendment of the Pension Reforms Act is that each employee must have a Pension Funds Administrator. It is also the spirit of the law that an employer, once pension deduction is made, must remit same to the Pension Fund Administrator of choice of the employee and keep records as appropriate. See Section 11, Pension Reform Act, 2004. In a civil proceeding as this. It is for the Claimant to adduce sufficient evidence in proof of her case. It is certainly not for the Defendant to prove anything until the evidential burden of proof shifts to it. There is no evidence led by the Claimant to the effect that she has a Pension Fund Administrator; that the Defendant deducted pensions from her salary and that the sum deducted by the Defendant was not remitted to her chosen Pension Funds Administrator. A statement of her pension account from her PFA would have been sufficient regarding this. That was not tendered at trial. Not having been proved, the head of claim is refused and dismissed. The relief for an Order of this Honourable Court directing the Defendant to pay to the Lagos State Internal Revenue Service on account of the Claimant the sum of =N=32, 000.00 (Thirty-Two Thousand Naira) being the sum deducted from the Claimant’s salaries as income tax but was not remitted to the Lagos State Inland Revenue Service by the Defendant is one within the realm of tax law and administration. This Court does not have jurisdiction respecting such matters. See Section 254C, Constitution of the Federal Republic of Nigeria, 1999, (Third Alteration) Act, 2010. I refuse this head of claim and dismiss same for lack of jurisdiction . Respecting the claim for the Sum of =N=2,000,000.00 (Two Million Naira) as general damages for wrongful termination of employment and breach of contract the law is trite that in an action of this nature the measure of damages is the amount the employee would have earned for the period of notice needed. This Court has held that the employment of the Claimant was wrongfully terminated; that she was entitled to a month's notice and that she was not given the said notice. The law is trite that the measure of damages for wrongful termination of employment is the amount the employee would have earned until he could have been lawfully terminated. See Ihezukwu Unijos (1990)4 NWLR (Pt. 146) 598 SC & NEPA v. Adeyemi (2007)3 NWLR (Pt. 1021) 315 at 336. This Court has also ordered the Defendant to pay to the Claimant a month salary in lieu of notice of termination. To again grant the prayer sought by the Claimant for damages for wrongful termination and breach of contract will amount to double jeopardy against the Defendant. This claim for damages for wrongful termination of employment and breach of contract is therefore refused and dismissed. The prayer for an Order of this Honourable Court directing the Defendant to pay to the Claimant the sum =N=120,000.00 (One Hundred and Twenty Thousand Naira) being Solicitor's fee incurred by the Claimant in prosecuting this suit is not grantable. The Courts have held that such a claim is unethical and an affront to public policy for a litigant to pass the burden of his Solicitors' fees to his opponent. See Guiness Nigeria Plc v. Nwoke (2000)15 NWLR (Pt. 689) 135. This claim is accordingly refused and dismissed. The National Industrial Court Rules in Order 21 allows award of interest on Judgment sum. Pursuant to same therefore it is directed that all the sums due under and by virtue of this Judgment, except cost, shall be paid with interest at the rate of 21% per annum from December, 2009 until the date of this Judgment. I examined all the heads of counter claims of the Defendant. The main counter claim is for the sum of =N=72,868.70k (Seventy-two thousand eight hundred and sixty eight Naira Seventy kobo) only being amount over paid on salary to the defendant to counter claim in Enterprise Microfinance Bank Limited. I find evidence led in this case to the effect that the Claimant was not paid salary for the period she was on secondment to Enterprise Microfinance Bank. Indeed the Defendant did not claim to have paid the Claimant during the said period. The basis of this counter claim was thus to recover from the Claimant the salary paid to her while with the Enterprise Microfinance Bank. I find no reasonable basis for this counter claim. I hold that this counter claim was brought in bad faith. I therefore refuse and dismiss same. The success of the remaining two counter claims is predicated on the success of the first counter claim. Same having failed the remaining two are bound to fail. After all it is said that one cannot put something on nothing and expect it to stay there. I refuse and dismiss the counter claims for interest on the sum counter claimed and the cost of the counterclaim. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, 1. I declare that the employment of the Claimant was wrongfully terminated by the Defendant not having been giving requisite notice or payment in lieu. 2. I hold that the Claimant was a confirmed staff of the Defendant. 3. I hold and direct the Defendant to pay to the Claimant one month salary in the sum of =N=68,028.17 as payment in lieu of one month notice of termination. 4. I direct and order the Defendant to pay to the Claimant the sum of =N=272,346.46 being the outstanding salary arrears due to the Claimant for the months of May- September 2009. 5. I direct and order the Defendant to pay to the Claimant the sum of =N=81,033.80 as Leave Allowance for the year 2009. 6. I direct and order the Defendant to pay to the Claimant the sum of =N=68,028.17 as the 13th Month pay for year 2009. 7. The prayer for an Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of =N=204.000.00 (Two Hundred and Four Thousand Naira) being the sum not remitted to the Claimant’s pension fund administrator after Claimant’s contributions were deducted from her salaries is refused and dismissed for lack of proof. 8. The claim for the Sum of =N=2,000,000.00 (Two Million Naira) as general damages for wrongful termination of employment and breach of contract is refused and dismissed Claimant having been awarded a month salary in lieu of notice. 9. I refuse and dismiss the prayer for an Order of this Honourable Court directing the Defendant to pay to the Claimant the sum =N=120,000.00 (One Hundred and Twenty Thousand Naira) being Solicitor's fee incurred by the Claimant in prosecuting this suit is for being both unethical and contrary to public policy. 10. Pursuant to Order 21 Rule 4 of the National Industrial Court Rules, 2007, all the sums due under and by virtue of this Judgment, except cost, shall be paid with interest at the rate of 21% per annum from October 2009 until the date of this Judgment and 10% from the date of Judgment until final liquidation. 11. All the counterclaims of the Defendant are refused and dismissed accordingly. 12. The cost of this proceedings is assessed at =N=50,000.00 payable by the Defendant to the Claimant. The terms of this Judgment shall be complied with within 30 days from the date of this Judgment. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge