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REPRESENTATION G. I. Akhigbe with C.O. Obinyan Miss for the Claimant. N. Amaechina with Abel. O. Osuji for the Defendants. JUDGMENT The Claimant instituted this action on 14/3/13 and sought the following reliefs from the Court - “1. N40,264,245.00 being special and general damages for breach of contract of employment made partly in writing and partly oral. 2. N2 Million general damages for detaining claimant’s documents still in the defendants possession, which they have refused to return to the claimant despite demand letter dated 6/11/2009. 3. Gratuity: N5,864,245.00. 4. An order the defendants return his documents enumerated in letter dated 6/11/2010. 5. Interest of 25% on the sum found due from 2004 – 2009 and 10% interest on judgment debt from date of judgment until debt is paid in full.” The Defendant reacted by filing a statement of defence accompanied by witness deposition on oath and documents to be relied on at trial and counter claim. Defendant counter claimed for the sum of Twelve Million (=N=12,000, 000.00) as damages suffered as a result of the Claimant's actions. The trial of this case commenced on 19/6/14 when Claimant testified as CW1 adopted his written deposition as his evidence in chief and tendered 17 documents as exhibits. The documents were admitted as exhibits and marked Exh. C1 - Exh. C17. The case of the Claimant as deducible from the statement of facts filed is that the 2nd Defendant requested the Claimant to resign from his employment and join in building the 1st Defendant which belonged to the 2nd Defendant as General Manager; that after negotiations Claimant retired from SCOA Plc; that he entered into an unwritten contract of employment with the 2nd Defendant; that the Defendants did not keep their side of the unwritten contract; that his salaries, emoluments and commissions were not paid regularly but when paid, they were written on sheets of paper with names of the Claimant omitted; that he sold many earth moving equipments for which he was not paid commission of =N=300,000.00; that he was lured to keep his personal documents in his office; that the Defendants removed same and refused to return them; that he was locked out of office on 2/11/09 without notice and that the Defendants are owing him arrears of salaries, allowances and commissions. Under cross examination, CW1 testified that he worked with 2nd Defendant at SCOA Plc and both left at the same time; that he was retired at SCOA Plc while he resigned; that the 2nd Defendant compelled him to leave SCOA Plc; that Exh. C7 and Exh. C8 are not originals they are carbon copies of the original; that he used them to claim my commission; that there is nowhere written on Exhibits 7 and C8 that he is entitled to commission; that some of these exhibits were not signed by him; that he once filed a case at the High Court of Lagos and that in his written deposition at the High Court of Lagos State he had stated that he agreed with the Defendant that same condition at the SCOA Plc would be applicable to him. Witness added that Exh. C9 contained his full retirement benefits; that the 1st Defendant did not employ him just to help him after his retirement from SCOA Plc; that the Police Station he reported his matter to did not complete investigation because the 2nd Defendant did not show up at the station; that he went to Force CID over the matter; that Police did not compel him to submit the Defendant’s Hilux vehicle in his custody; that rather it was forcefully taken by the Police headquarters; that he was unable to recover all his property in the office because before he got there 2nd Defendant and his thugs, his then Lawyer had cleared the office and that he was only able to recover few but unimportant things. Witness stated further that he swore to an affidavit on 30/11/09 relating to the property of his which 2nd Defendant took; that he worked with Defendant from December 2000 and locked out of the Defendant October 2009; that he was not paid salary by Defendant from 2004 till 2009; that he survived without salary during the period in question only on allowances paid; that he employed Miss A. Iwu as Company Secretary with the consent of the Managing Director; that her employment was determined at the same time with his; that his office was broken into on 24 or 25 of October, 2009; that he was locked out on 2/10/09; that it was not after he and other workers were locked out that he reported a case of his missing property to the Police; that the document of the vehicle he tendered was the document of his Toyota Hilux official Car; that there were photographs taken of him receiving his property from the Defendant; that vehicle No. XU 874 LSR does not belong to him and that it was the vehicle the Police recovered from him. On 23/9/14, the Claimant called his second witness - one Anthonia Iwu. CW2 adopted her witness statement on oath dated 6/6/13 as her evidence in chief and tendered one document as exhibit. The document was admitted and marked as Exh. C18. CW2 stated under cross examination that she does not know when Claimant joined 1st Defendant; that 2nd Defendant is the Managing Director of the 1st Defendant; that Claimant interviewed and employed her as General Manager of the 1st Defendant; that she continued working with 1st Defendant until she was locked out in October 2009 that she did not see the breaking in into the Claimant’s office; that she does not have a copy of the agreement she mentioned in paragraph 2 of her statement on oath; that she was not the person who paid commission to the Claimant; that herself and Claimant were not the only staff of the 1st Defendant; that the other staff include Marketers, Drivers and Admin; that Officers’ salaries were not paid in full; that it was usually partly paid; that this applied to all staff; that when Managing Director was not there Claimant paid salaries of staff as the General Manager; that the Company prepared the salary vouchers; that the General Manager prepared salary voucher and that the 1st Defendant is owing her arrears of salaries. The Defendants opened their case on 5/11/14 when one Joseph Ndiefe testified as DW1, adopted his witness deposition made on 25/4/13 as his evidence in chief and tendered 9 documents for admission as exhibits. One of the documents was rejected and so marked. The remaining 8 were admitted and marked as Exh. D1-Exh. D8. The case of the Defendants as revealed from the pleadings filed as that the Claimant was on the verge of being sacked by his former employer SCAO Plc; that he appealed to the 2nd Defendant his former colleague to employ him; that the starting salary of the Claimant was =N=20,000.00 which was increased to =N=40,000.00 in July 2003; that the Claimant was paid his salary as at when due; that the Claimant was not to be on any commission; that the Claimant was using the premises of the 1st Defendant to run his private business of importing and selling goods and also as parking vehicles for money; that the Claimant detained the vehicle of the Defendants in his custody and that the Claimant is liable to pay damages to the Defendants. Under cross examination, the witness stated that he used to work at the SCOA Plc as a Driver while the Claimant and the 2nd Defendant were also working there; that he was there when the 2nd Defendant and the Claimant agreed to leave SCOA Plc; that all the equipment in the Way Bill tendered and admitted were supplied by the Claimant; that he did not report to the Defendants that the Claimant was using the Defendant's premises for business and collecting rents from patrons; that the Claimant detained the vehicle of the 1st Defendant; that he took the 2nd Defendant to Obalende Police Station and that nobody broke into the office of the Claimant. There was no reexamination. The final written address of the Defendant was dated 14/9/15 and filed on 15/9/15. In it, learned Counsel slated the following two issues for determination - 1. Whether the Claimant has established his claims against the Defendants. 2. Whether the Defendants have proved their counter claims against the Claimant in this case. On issue 1, learned Counsel submitted that the evidence of the Claimant was aimed at confirming his bogus claims; that although he claimed in one breadth that he was not paid his salaries, he however admitted under cross examination that he was paid his full emoluments between 2000 and 2003 but not paid as from 2004 to 2009; that the admissions by the Claimant are inconsistent with his pleadings and that evidence contrary to pleadings ought not to be relied upon by the Court citing ACB Plc v. Hasting Nigeria Limited (1997)8 NWLR (Pt. 515)110 at 131. According to learned Counsel, the claims of the Claimant relating to salary and emoluments allegedly owed to him are in the nature of special damages which must be specifically pleaded and proved citing Owena Mass Transportation Co. Limited v. Imafidon (2012)4 NWLR (Pt. 1290) 332 at 346. Counsel submitted that the Claimant has failed to establish the basic requirement for the proof of his claim and the same must fail in its entirety. He urged the Court to so hold. Learned Counsel referred to the earlier suit filed by the Claimant at the Lagos High Court where he alleged that the Defendants agreed to use his SCAO Plc employments terms and conditions of service for him and submitted that Exh. C17 which contained the said terms and conditions did not contain the claims of the Claimant in the present suit; that the evidence of the Claimant respecting this is contradictory; that this goes to the root of the Claimant's claims and that the Court should hold that the Claimant has woefully failed to prove his claim before this Court. On issue 2, learned Counsel submitted that the Defendants have led credible and weighty evidence in support of its counter claims. Counsel submitted that the Claimant admitted that he seized and detained at unknown place the Toyota Hilux truck belonging to the Defendants from2/11/09 till January 2010 when it was recovered with the aid of the Police and that the Defendants also proved that they were locked out of their premises by the Claimant for 4 days. Counsel prayed the Court award general damages against the Claimant. Finally, learned Counsel urged the Court to dismiss the claims of the Claimant and enter Judgment in favour of the Defendants/Counterclaimants. The Claimant filed an 11-page final written address dated 10/11/15 on 20/11/15. In it 6 issues were set down and canvassed for determination. They are as follows - 1. Whether the Claimants contract with the 1st Defendant made partly in writing and partly oral must need be embodied in writing in a document to be valid?. 2. Whether the Claimant on the oral and documentary evidence adduced by him established his claims as set out in his pleadings and his statement on oath and his witness statement on oath?. 3. Whether the defendants as sued are jointly and or severally liable to the Claimant is entitled to his claim. 4. Whether the defendant/counter-claimant for damages has discharged the burden of proof on the balance of probabilities?. 5. Whether the Claimants claim of interest is not valid?. 6. Whether the Court has the jurisdiction to entertain the matter or defendant counter claim not being labour matter related issues. On issue 1, Counsel submitted that the Claimant pleaded an agreement which was partly in writing and partly oral; that agreement can be so made citing A.G. Rivers State v. A.G. Akwa Ibom State (2001)All FWLR (Pt. 579) 1063 & S. 54, National Industrial Court Act, 2006. Counsel thus urged the Court to resolve this issue in favour of the Claimant. Arguing issues 2 and 3 together, Counsel submitted that a party alleging an oral agreement has the responsibility of leading evidence as to the modalities of such an agreement, citing Odutola v. Papersack Nigeria Limited (2007)All FWLR (Pt. 350) 1214 at 1233; that all exhibits tendered showed the status of the Claimant as General Manager, his administrative and sales equipment on commission and that CW2 confirmed the status of the Claimant, his salary and entitlement to commission of =N=300,000.00 on each equipment sold by the Claimant and his salary of =N=250,000.00 per month. Counsel submitted that the CW2 was cross examined on her testimony for the Claimant; that the Claimant pleaded and gave particulars of each items referring to Claimant's statement on oath. Counsel cited Joseph v. Abubakar (2002) FWLR (Pt. 91) 1525 at 1542 and urged the Court to hold that the special damages of the Claimant has been proved by unchallenged evidence. Respecting the claim for Gratuity, Counsel submitted that it was on agreement between the parties and based on Exh. C9. He prayed the Court to grant same. Learned Counsel further submitted that the second Defendant did not defend this action; that he did not appear in Court throughout the proceedings; that the statement of defence did not refer to him and did not specifically deny the Claimant's accusations leveled against him in the statement of facts. Counsel therefore urged the Court to hold the Defendants jointly and severally liable to the Claimant on his claims. Again Counsel argued issues 4 and 5 together. In doing so, learned Counsel submitted that by Exh. C6 the ownership of the vehicle was transferred to the Defendant by Jaga Pharma Limited; that it was assigned to the Claimant as official vehicle and that it was not meant for public transportation which earned daily income. He urged the Court to so hold. Respecting the claim for =N=5,000,000.00 as damages for trespass, Counsel submitted that the Defendants have not proven the dates they were locked out of the premises and that the Defendants did not call any of their customer to attest to it or attest to the fact that the Claimant collected money from individuals or group of people or the type of business that the Claimant was engaged in. Learned Counsel finally submitted that the Court lacks jurisdiction to grant any of the counter claims. He prayed the Court to so hold. Learned Counsel filed a reply to the Claimant's final written address. It was dated and filed on 22/1/16. I read the 5-page document. It is nothing within the confines of reply address as envisaged by the law. Rather it was more another window for the Defendant to reargue their case. That is not the essence of a reply address. I find nothing new in it that merits addition in this Judgment. Hence I opt to discountenance same. I have read and understood all the processes filed by the learned Counsel on either side of this case. I listened attentively to and understood the testimonies of the witnesses called at trial and also watched their demenour. I carefully reviewed and evaluated all the exhibits tendered and admitted in this case and listened to the oral submissions of learned Counsel for the parties. Having done all this, I narrow the germane issues for the just determination of this case to be two as follows - 1. Whether the Claimant has discharged the burden of proof on him to be entitled to a grant of all or some of the reliefs sought. 2. Whether the Defendant has also successfully proved its counter claims. On Issue 1, the law is reasonably and fairly settled and generally accepted that in civil trial the burden of proof is usually on he who asserts. This has both statutory and judicial backing. See S. 131, Evidence Act, 2011 & Health Care Nigeria Limited v. Bazza (2004)3 NWLR (Pt. 861) 582, 605-606. The proof here envisaged is proof by credible, cogent and admissible evidence. Failure by a party on whose shoulder lies the requisite burden of proof will leave the Court with no option than to dismiss the claims sought before the Court. The first relief sought by the Claimant is for the sum of Forty Million Two Hundred and Sixty Four Thousand, Two Hundred and Forty Five Naira (=N=40,264,245.00) being special and general damages for breach of contract of employment made partly in writing and partly oral. Claimant asserted that he was on a monthly salary of =N=250, 000.00. The various heads of the claims were contained in paragraph 38 of the statement on oath of the Claimant deposed to on14/3/13 and adopted as his evidence in chief in this case. Now apart from the alleged unpaid salaries from January 2004 - November 2009, there were also claims for annual housing allowance at =N=400,000.00 from January 2004 to November 2009; Earned Commission of =N=300,000.00 per equipment sold for 37 equipment sold; Annual Leave Allowance for 2008 and 2009 and salaries for six months in lieu of notice of termination. In order for the Claimant to succeed in this case, it is both incumbent and mandatory for him to exhibit the contract of service between him and the Defendant. For, it is that contract of service containing the terms and conditions of employment that the Court will invariably construe to determine the employment rights and liabilities of the parties in the employment relationship. It is trite that in the determination of his employment rights, a Claimant must place before the Court the contract of employment that provides for his rights and obligations as well as regulating the relationship between the parties. See Fekuade v. OAUTH (1993)5 NWLR (Pt. 291) 471 & Idoniboye-Obe v. NNPC (2003)2 NWLR (Pt. 805) 589 at 630. On the other hand, it may be that it is a Staff Handbook of the Defendant that forms the basis of the claims of the Claimant. Yet it may be that the basis of the claims of the Claimant is his letter of employment which contains his salaries, allowances and other emoluments such as commissions and so on. The Claimant must certainly exhibit same. In any event, it is for the Claimant to convince the Court by credible and admissible evidence respecting his claim. Now what are the evidence led by the claimant in support of his claims? Exh. C1 a staff I.D Card No. 081 identified the Claimant as the General Manager, Admin/Oprs; Exh. C2 evidenced the entitlement of the Claimant to 10% of his annual basic salary as leave travelling allowance without stating how much his annual basic salary was; Exh. C3 is Police Investigation report; Exh. C4 is an affidavit; Exh. C5 & C6 were Solicitors' letters; while Exh. C7 was a bundle of way Bill, Exh. C8 was Official Receipt of Defendant; Exh. C9 was a letter from Scoa Nigeria Plc former employer of the Claimant; C10 was Claimant's memo to MD of Defendant; C11 was a minute of meeting; C12 was appointment letter of one Anthonia Iwu; Exh. C17 was a copy of writ of summons in suit No: LA/880/2010 while Exh. C18 was yet another appointment letter for one Anthonia Iwu. It is apparent from all the exhibits tendered and admitted on behalf of the Claimant that there is no letter of appointment emanating from the Defendant to the Claimant. There is no contract of service executed by both the Claimant and the Defendant. There is no Staff Handbook or any other document existing between the parties containing the terms and conditions of employment of the Claimant with the Defendant. The entire claims of the Claimant especially as contained in paragraph 6 of his statement on oath could not be reconciled with some of the evidence tendered and admitted in this case. For instance, while Claimant claimed that his monthly salary was to be =N=250, 000.00 by virtue of oral agreement he had with the 2nd Defendant and that his salary was to be hidden from other staff, yet by Exh. D1, D2 & D3, the highest amount he was ever paid as salary was =N=40,000.00. It is on record that the Claimant did not contest any of these exhibits. He also led no evidence to contradict any of them. It is settled principle of law that documentary evidence is the best form of evidence, see Rangaza v. Mien Plastic Co. Limited (2013) LPELR-20303 CA & Bongo v. Adamawa v. Governor of Adamawa State (2013)2 NWLR (Pt. 1339) 403, that parole evidence will not be allowed to vary or add to the content of a document and that when evidence on an issue is untroverted and unchallenged by the other party, the Court is bound to accept the evidence in support of the case at hand. See Nirowi v. Akingbulugbe (2013)37 NLLR (Pt. 114) 317. In the instant case, this Court has no choice than to place reliance on those unchallenged evidence. It was also part of the averment of the Claimant that he retired from the SCOA Plc at the promptings of the 2nd Defendant so as to join the services of the 1st Defendant. Unfortunately, even the evidence led by the Claimant did not support that assertion. For, by Exh. C9 Claimant was retired by the Scoa Plc. By page 12 of Exh. C17, Claimant had admitted that his conditions of service at his former employer SCOA Plc would be used for him while working with the Defendants. Yet Exh. C9 did not contain any of the terms or claims of the Claimant as reflected in paragraph 41 of his statement of facts and paragraph 38 of his witness deposition on oath. I find no credible evidence led by the Claimant in proof of this head of claim. I refuse same and thus dismiss it accordingly. The second claim is for the sum two Million Naira (=N=2, 000,000.00 Million) general damages for detaining Claimant’s documents still in the defendants possession, which they have refused to return to the claimant despite demand letter dated 6/11/2009. Exh. C10 is the said demand letter dated 6/11/09. It was addressed by the Claimant to the Managing Director of the 1st Defendant. It is the original copy of the letter. The question that arises here is whether or not that letter was actually sent or delivered to the addressee. Or how did the Claimant come to still be in possession of the original copy of the letter. There was no explanation by the Claimant respecting how the original came to be in his possession rather than with the Managing Director of the 1st Defendant to whom it was addressed. This is sufficient for me to hold that no formal demand was made for the said property of the Claimant in the custody of the Defendant. Again, the Defendants tendered Exh. D5 - Police Investigation Report dated 16/6/10. Part of the Findings and Recommendations in that Report especially as contained in paragraphs 5 and 9 of Exh. D5 are as follows - ''.... ''5. That the suspect (referring to the Claimant) was allowed to remove his personal effects from his office of F.B.C.O in the presence of operatives and the complainant. However, the suspect complained that some of his properties are missing''. ''.... ''9. The allegation of the suspect that his office was burgled could not be substantiated. There was no evidence of any breaking or forceful entry when operatives in company of the suspect went to evacuate his personal effects''. I hold that by the combined effect of Exh. C10 & Exh. D5 this head of the Claimant's claim is not proved. Same is therefore dismissed. The next claim by the Claimant is for the sum of Five Million Eight Hundred and Sixty Four Thousand Two Hundred and Forty Five Naira (=N=5,864,245.00) as his Gratuity. There is no exhibit before the Court to how the Claimant arrived at this figure. The basis of the calculation resulting in this figure is not made known. The law remains that the Court is neither a Father Christmas nor a place to simply ask and receive. It is open to a party to approach the Court for the grant of a relief. It is also open to the Court to refuse to grant such a request where no proof is led by credible and cogent evidence. There being no cogent and credible in support of this claim same is refused and dismissed. None of the reliefs sought by the Claimant succeeds. There is therefore no basis to grant any interest on the Judgment sum as sought by the Claimant. Indeed, a grant of interest is predicated on a success of monetary claim before the Court. Since all the claims of the Claimant fail, a claim for interest must also fail in like manner. Thus this head of claim is also refused and dismissed for absence of proof. The Defendants counter claimed the sum of Twelve Million Naira (=N=12,000,000.00) as damages as a result of Claimant's actions. The law is trite that a counter claim is akin to a fresh suit of its own. See Potter Dabup v. Haruna Bako Kolo (1993) LPELR-905 (SC), (1993) NWLR (Pt. 317) 254. A counterclaim is explained as a legal procedure which allows the Defendant to maintain an action against the Plaintiff as if it is a separate suit. It is an independent action and does not form part of the original action. A Counterclaimant must with equal force establish it on the strength of evidence in support of the pleadings upon which it was brought. It can only succeed on its strength and not on the weakness of any defence against it, See Christiana Utsu v. Iorna Uju (2011) LPELR-3980 (CA). Therefore, the Defendant/Counter claimant has the burden of proving its counter claims by adducing credible and admissible evidence in order to be entitled to a grant by the Court. The counter claim was particularized as follows - 1. =N=100,000.00 for each day that the vehicle was detained from 2nd November, 2009 to 20th January, 2010; 2. The sum of =N=5,000,000.00 as damages for trespass in locking out the Defendants and their customers unlawfully from their business premises thereby preventing them and their customers from carrying on their lawful business; 3. The sum of =N=5,000,000.00 as damages for using the business premises of the Defendants for his own private business and as vehicle parking lot. The averments of the Defendants are that the Claimant was using their premises to promote his personal business and as parking lot for other persons after collecting money without remission of same to the Defendants; that the Claimant is bound to account for same; that the Claimant prevented the Defendants from using the Toyota Hilux van which the Claimant detained unlawfully for two months thereby causing them to suffer loss of use of same and that for all these actions of the Claimant the Claimant should be made to pay Twelve Million Naira as damages. The Defendant tendered 8 exhibits in support of its counter claims. It is instructive to note that none of these has any direct bearing on the counter claim sought. For instance respecting the vehicle, there is no evidence before me to the effect that the said vehicle which the Claimant was alleged to have detained was being used for a commercial purpose. There is also no proof of the sum of One Hundred Thousand Naira as the daily earning or returns from the use of the vehicle as claimed. Even this aside, Defendant claimed that the vehicle was detained for two months and =N=100,000.00 was claimed for its daily use. When this is added to the sum counter claimed as damages, no doubt the total sum is more than Twelve Million Naira that the Defendant counter claimed. The law is trite that averments without evidence go to no issue. In much the same vein, evidence outside pleadings also goes to no issue. There are averments for the sum counter claimed. However those averments were not supported by evidence to warrant a grant of same by the Court. I find and hold that the Defendants have not discharged the burden of proof required for them to be granted the counter claim sought. For lack of proof by cogent and credible evidence therefore, the counterclaims of the Defendants are refused and dismissed. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, all the reliefs sought by the Claimant are refused and dismissed. In the same vein and like manner the counter claims of the Defendants are refused and dismissed accordingly. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge