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REPRESENTATION J. N. OKARE ESQ. for the claimant SAMUEL AKPABIO ESQ. for the defendant JUDGEMENT The claimant filed this Complaint on 30th October, 2013 and dated 29th October, 2013, accompanied by the Statement of Facts, List of Witness, Claimant’s Statement on Oath and List of Documents, claiming against the defendant as follows: 1. AN ORDER declaring that the Order of indefinite suspension placed on the claimant by the defendant without payment of salaries/allowances upon an unfounded indictment of official corruption and the failure to recall the claimant to the employment of the defendant since March, 2009 till date is illegal, null and void and of no moment in law. 2. AN ORDER directing the defendants to forthwith pay the claimant the total sum of One Million, Nine Hundred and Eighty Seven Thousand, Six Hundred and Thirty Six Naira (#1, 987, 636.70) only, being outstanding monthly salaries/allowances due to the claimant for the months of March, 2009 till July, 2013 which salaries/allowances is assessed at Thirty Seven Thousand, Five Hundred and Two Naira, Fifty Kobo (#37, 502.58) per month. 3. AN ORDER directing the defendant to forthwith pay the sum of #77, 005.16 only owed the claimant being arrears of salaries/allowances for the months of January, 2009 to February, 2009 which sum the defendant has, in spite of repeated demands refused to pay to the clamant. 4. AN ORDER directing the defendant to pay the claimant the sum of Two Million, One Hundred Thousand Naira (#2, 100, 000.00) only, being refund of accumulated accommodation bills incurred by the claimant from 30/09/2007 to 30/07/2013. 5. General damages of Five Million Naira (#5, 000, 000.00) only. The defendants filed their STATEMENT OF DEFENCE dated 27th May, 2014 and filed on 26th May, 2014, together with their Memorandum of Appearance, List of Witnesses, Defendants Witness Statement on Oath, List of Documents and copy of the document to be relied upon. The claimant in reaction field a REPLY TO STATEMENT OF DEFENCE filed on 19th February, 2015 and dated 18th February, 2015, accompanied with an Additional Witness Statement on Oath, List of Documents and copies of the documents to be relied upon. The Claimants Case The Claimant case is that sometime in December, 2004, he was employed by the defendant company as Security Supervisor covering the defendant’s offices in the South-South and South-East States of Nigeria. His employment was later confirmed in 2006. The defendant company in September, 2007 transferred him from Port Harcourt to Calabar to serve as defendant’s Security Coordinator at North-West Petroleum, Calabar. Based on this transfer, the claimant accordingly relocated to Calabar and the defendant company who caused the claimant’s relocation from Port Harcourt to Calabar is, from the terms of the contract of employment, responsible for the settlement and payment of the claimant’s accommodation bills in Calabar. The Claimant further stated that while under the employment of the defendant company, his monthly salaries/allowances for the months of January, 2009 and February, 2009 were not paid to him by his employer. According to him, owing to a spurious allegation of official corruption leveled against him, leading to Charge No. MC/312/2009, the defendant indefinitely suspended him from work pending “… the outcome of the Court’s decision on the matter”. That even when the said Charge was eventually determined in the claimant’s favour, the defendant still suspended him till date and in spite of repeated demands, refused to pay the claimant his salaries/allowances since the month of January, 2009 till date. The claimant now sued the defendant as per the reliefs above. The Defendants Case. The Defendant case is that the Claimant applied for employment in the Defendant Company as a Security Guard at the Defendant’s Regional Office situated in Port Harcourt, Rivers State without any formal background training as a security guard, and was thus recruited in 2004 as a Security Guard with only his School Certificate result and no more. That the Claimant at all times material to this suit was never a Supervisor, was not promoted a supervisor and never acted in the Defendant’s Company as a Supervisor. Furthermore, that during the said recruitment, the Claimant applied under the name John Solomon and was so employed and trained by the Defendant and that the Defendant has never known the Claimant as John Solomon Joshua or John Joshua as his documentations with the Defendant bear John Solomon, as the Defendant is not aware and was at no time notified of any certificate by the Claimant. To the Defendant the employment of the Claimant was in 2006, confirmed in line with the policy of the company and performance appraisals conducted at the material time in accordance with the provisions of the Defendant Company’s Staff Hand-Book and that upon confirmation, the Claimant was placed on a salary of N27, 502.58 per month as stated in the Claimant’s confirmation letter. The Defendant maintained that it had at no time paid the Claimant the sum of N10, 000.00 as part of the Claimant’s monthly salary and neither paid cash of N10, 000.00 or any other sum as part salary to the Claimant nor paid any such money to the Claimant’s bank account. Averring further that the Claimant was at no time material to this suit transferred from Port Harcourt, Rivers State to Calabar, Cross River State. The Defendant states that the Claimant was sent to Calabar at times on a one off assignment to any of the Company’s location around the South-South Region. Rather, that the Claimant was sent to Calabar on such an assignment to North-West Petroleum to investigate an incident and the Claimant’s expenses for such trips are usually given to him before the commencement of the journey. Defendant reiterated that fact that the Claimant was not transferred to Calabar and at no time did the Defendant relocate the Claimant to Calabar. It is the defendants case that about mid-January, 2009, the Claimant had stopped attending work and the Defendant’s Regional Manager in Port Harcourt made a report to the Head Office of the Defendant in Lagos pursuant to which the Claimant’s salary was stopped awaiting him to show up and report himself for dereliction of duty. The Defendant denied owing the Claimant the sum of N75,005.16 or any other sum for that matter, stating that no such sum is due to the Claimant as the Claimant was not on duty to earn any such pay and that the Claimant has never made any demand on the Defendant for such sums. Not then, not until this action. The Defendant averred that it was not served any letter of demand of any kind whether from the Claimant or his Solicitors or the letter dated the 17th of September, 2012, re-stating that the Claimant has not attended work at any of the Defendant’s offices from late December, 2008 till date. The Defendant denying paragraphs 23, 24, 25 and 26 of the Statement of Facts, stated that the claim for N2, 100,000.00 by the Claimant for hotel accommodation does not avail the Claimant as the Claimant was on a frolic of his own and the receipts annexed are suspect. WHEREFORE the Defendant urges the Honourable Court to dismiss this suit with substantive cost for lacking in merit. The Claimants case in Reply to Statement of Defence The claimant maintained that he had formal security background/training and rich work experience prior to his employment as Security Supervisor with the defendant company and that between 1999 – 2001, served as an Administrative Officer with another security company called Adamac Group of Companies based in Port-Harcourt, Rivers State. And that he presently holds a Higher Professional Diploma Certificate in Security & Safety Management from Rivers State Polytechnic, Bori, Rivers State. The claimants also states that at various times before his employment with the defendant, he received various security trainings from Schlumberger Oil Field Services in February, 2000, Risk Trust Group in July, 2004 and B-Safe Certificate issued by TSKJ, among others. The claimants case is that he applied for employment with the defendant company in late 2004 using his complete names – John, Solomon Joshua Udoh as contained in his application letter and accompanying CV, academic, and qualifying and training certificates he submitted to the defendant. And maintains that every staff of the defendant is customarily entitled to certain allowances to wit: phone calls, out-of-station, tourism & transport allowances totaling #10,000.00 only payable by cash and upon signing a monthly allowance voucher. The claimant insists that his assignment in Calabar was not a one-off assignment, rather that the defendant in 2007, transferred him to Calabar to serve as her Security Coordinator at North-West Petroleum, Calabar, where he was to coordinate and oversee the activities of all security personnel of the defendant at the premises of North-West Petroleum, Calabar and other locations within Calabar and that he was never at any material time recalled to the regional office at Port Harcourt during his service period at the North-West Petroleum in Calabar. The claimant states that beginning from September, 2007 when he was transferred and relocated to Calabar to early March, 2009, when the defendant eventually issued him a letter of indefinite suspension, he consistently attended and discharged his duties, rendering reports to the defendant’s Regional Manager in Port Harcourt as required of him. And that he neither absented himself from work for even a day nor stopped/abandoned work for any reason whatsoever and that he never formed his own security recruitment agency before or even after the unfounded/spurious incident of being involved in an illegal North-West Petroleum recruitment exercise. With regard to the unfounded/spurious incident of being involved in an illegal North-West Petroleum recruitment exercise. The claimant maintains that recruitment and training of defendant’s staff were not part of his schedule of duties in Calabar and that neither he alone or in conjunction with Mr. Felix Osulayi or anybody else never partook in the said recruitment exercise and never at any time turned himself into a recruiting agent for any reason or consideration. The claimant maintains that the defendant never at any time issued query on the claimant or warned him of any alleged misconduct or afford him the opportunity to defend the allegation before the defendant prior to placing him on indefinite suspension. To the claimant the letter of his solicitors – Innocent C. Ovat & Co. dated 17/09/2012, was served on the Managing Director of the defendant through EMS Speed post. Trial commenced on the 5th of March 2015 with the claimant calling one witness the claimant himself who testified as CW adopted his written statement on oath of 29th October 2013 and his additional statement on oath of 19th February 2014 as Exhibits C1 and C2 respectively and proceeded to tender16 other exhibits. S/N TENDER BY NICN/CA/154/2013 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel 5/3/2015 CW 2. Written statement on oath 29/10/2013 C1 3. Additional statement 19/2/2015 C2 4. Confirmation of Appt. 21/12/2005 C3 5. Sterling Bank withdrawal C4-C433 6. Indefinite suspension 2/3/2009 C5 7. Police V. John Joshia MC/312c/209 C6-C63 8. Demand for payment of salary 17/9/2012 C7-C72 9. Receipts 4/3/2008 C9-C964 10. Rivers state polytechnic 5/2/2014 C10 11. Letter from oil field service 27/1/2000 C11 12. Risk Trust security 31/7/2004 C12 13. B- SAFE 15/9/2004 C13 14. Curriculum vitae C14 15 Letter from magistrate court 01/4/2009 C15 16. Request for transfer 7/2/2006 C16 17. Request for transfer 7/2/2006 C17 18. Receipt from speed post C18 19 Witness on oath 15/4/15 15/4/15 DW Statement on oath 15/4/15 D1 Staff hand book 15/4/15 D2 Under Cross examination the claimant gave his full name as Solomon Joshua Udo John that he received an after tax salary of N21, 500.00 monthly and that his appointment and confirmation were done in writing. The claimant also admitted paying a hotel bill of N30k monthly while earning N21, 000.00, he went on to state that the hotel where he lodged would issue him with receipts to enable him tender in the office for refund and that the hotel kept a book. A register, he signed as an indication that he had paid but testified. That he did not have a copy of the register. The defendants called one witness Mr. Akintoye Ajala the Regional Manager of the Defendants who testified as DW adopted his written statement on oath 27th May 2014 which was marked as Exhibit D1 and proceeded to tender other Exhibit, the Staff Handbook which was tendered as Exhibit D2 Under cross examination DW testified that the claimant was issued with a letter of dismissal in 2009, prior to this he had been served with indefinite suspension and before that step was taken the claimant had been issued several queries. The DW also testified that the claimant was not assigned or transferred to Calabar that the claimant had been invited to appear before management but he never turned up and that there was a reason for his not being paid his salaries for January 2009 and February 2009. DW in response to the question “Even when many queries were issued tot eh claimant you still kept him in your employ until March 2009” He responded “That is correct” At the close of trial parties filed their final written addresses in line with the rules of this court. The defendant’s final written address dated 12th May, 2015 and filed on 11th May, 2015. With the following issues for determination 1. Whether this Honorable Court is seized of the requisite jurisdiction to hear and determine this suit as constituted, the claimant not being a legal person. 2. Whether the claimant has proved his claims as set out in his Complaint and Statement of Facts. 3. Whether the defendant was within its right in the circumstances of this case to issue Exhibit C5 – the letter of suspension to the claimant. 4. Whether the claimant’s claim for the sum of #5, 000, 000.00 as general damages avails the claimant. The claimant’s written address was dated and filed on 8th June, 2015. Wherein he formulated the following issues 1. Whether or not the claimant is a juristic person to invoke the jurisdiction of this Honorable Court to entertain and determine this action in this present suit. 2. Whether or not from the totality of the evidence on record, the claimant has, on preponderance of evidence prove/established his claims in the present action. 3. Whether the defendant’s right to issue Exhibit C5 – Letter of Suspension, can be arbitrary exercised and in violation of the disciplinary procedures of her Staff Handbook – Exhibit D2. The Defendants Submission With regards to Issue 1;- Whether this Honorable Court is seized of the requisite jurisdiction to hear and determine this suit as constituted, the claimant not being a legal person. Learned Counsel for the Defendants Samuel Akpabio Esq. submitted that the issue of jurisdiction is the bedrock of any proceedings and it can be raised at any time and at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. GBADAMOSI ADEGOKE V. CHIEF NATHANIEL AGBOOLA ADIBI & ANOR (1992 5 NWLR PART 242 PAGE 410; (1992) 6 SCNJ 136; PETROJESSICA ENTERPRISES LTD V. LEVENTIS TECHNICAL COMPANY LTD (1992) NWLR PART 244 PAGE 675; MADUKOLU & ORS V.NKEMDILIM (1962) 1 ALL NLR 587.Defense Counsel argued that the name, SOLOMON JOSHUA UDO JOHN and the sequence in which they appear is further confirmed in the Curriculum Vitae tendered by the alleged Claimant as EXHIBIT C13 and shows as a fact that the proper Claimant is “SOLOMON JOSHUA UDO JOHN” where “JOHN” is the surname and not the first name and that it further shows that the name “John Solomon Joshua” the alleged claimant in this case is non-existent, not a juristic/natural person, not existing in law and the Defendant had pleaded it does not know John Solomon Joshua. He submitted that the position of the law as regards to parties is clear, only juristic or natural persons can sue and be sued. CHIEF ADERIBIGBE JOEBA V. OSHO OWONIFARI (1974) 10 SC 30. Learned Counsel for the defendants contended that the Claimant made matters worse by tendering his alleged professional certificates EXHIBITS C9, C10, C11 and C12 and that these exhibits were tendered to show the professional qualifications of “JOHN SOLOMON JOSHUA” the Claimant in this suit. Furthermore, that under cross examination of CW1, it was proved that those certificates cannot and do not belong to “JOHN SOLOMON JOSHUA”. DR. E. J. ESENOWO V DR. I. UKPONG & ANOR (1999)6 NWLR PART 608 PAGE 611; (1999) 4 SC PART 1 56. To the defendants Counsel the position of the law is that only proper parties, natural or juristic, have the capacity to sue and be sued and that where a wrong defendant is sued or a non-legal person is sued, the Claimant has to apply to the court stating material facts why he should be allowed to amend to change the name and the non-juristic name struck out and that where the offending name or the party is the claimant, it is the suit that is struck out as there was never a competent suit in the first instance. OKECHUKWU V. NDAH (1976) N.W.L.R 368 at page 370.Further submitting that the Claimant under cross examination said his surname is “JOHN” and his first name is “SOLOMON” and that this material fact was also admitted by the Claimant at paragraph 1(e) of the Reply to Defendant’s Statement of Defence and paragraph 3(e) of the Claimant’s additional statement on Oath (Exhibit C2), thus, it follows that facts admitted by a party need no further proof. SENATOR HOSEA EHINLANWO V. CHIEF OLUSOLA OKE & ORS. (2008) 6-7 S.C. (PART II) 123, per ONNOGHEN J. S. C. He contended that the Claimant lied under oath that he applied for work with the Defendant as “Solomon Joshua Udo John” while his letter of confirmation (Exhibit C3), his letter of Indefinite Suspension (Exhibit C5), his bank statement (Exhibit C4) and even the “forged” receipts of his hotel bills (Exhibit C8) all bear “John Solomon”. That this shows the Claimant is not a witness of truth; he cannot bring a suit under a false/pseudo name that makes the suit incompetent and that this should not be allowed by the Honourable Court. ALHAJA RAFATU AYORINDE & ORS V. ALHAJA AIRAT ONI & ANOR (2000) 3 NWLR PART 649 PAGE 348, per KARIBI – WHYTE J.SC (as he then was). With regard to issue 2;-Whether the claimant has proved his claims as set out in his Complaint and Statement of Facts. The defendants contend that the fact that DW1 was not confronted under cross examination as to the effect that the Claimant had abdicated his duty post since December, 2008, Learned Counsel submitted that the position of the law is that evidence not contradicted by the other party and which is credible and reasonable must be believed. BABA V CIVIL AVIATION (1991) PART 1 7SCNJ PAGE 1 at page 22. And YA’U DIKWA (2001) 8 NWLR PART 714 PAGE 127; ODULAJA V. HADDAD (1973) 2 S.C. 357; UNION BANK V. OGBOH (1995) 2 NWLR PART 380 PAGE 647. Praying the court in line with decided cases to uphold the Defendant’s evidence of the Claimant not attending work from about December, 2008 till date. AMERICAN CYNAMID CO.LTD V. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PART 171) PAGE 15; IJEBU-ODE LOCAL GOVERNMENT V BALOGUN & CO LTD (1991) IN NWLR (PART 166) PAGE 136 and IFEAMYI CHUKWU OSONDU CO. LTD V. AKIGBE (1999) II NWLR (PART 625) PAGE 1. To the defendants claims for liquidated damages which are claims in special damages of which there are a plethora of cases supporting the principle that such claims must be specifically pleaded with particularization and specifically proved. This principle also applies for the claim in paragraph 26(2) of the statement of facts. XTOUDOS SERVICES NIG LIMITED & ANOR V. TAISEI (W.A) LTD & ANOR (2006) 15 NWLR PART 1003 PAGE 533.Arguing furthermore, that the Claimant failed to particularize any of the items of special damages neither did he strictly prove the damages with credible evidence and that the onus of proof of special damages is on the Claimant who must show with credible evidence that he is entitled to the award of special damages. IMANA V. ROBINSON (1979) 3-4 SC 1 at page 31; AGUNWA V. ONUKWE (1962) 1 ALL NLR 53. Contending that in discharging this burden, the Claimant has to first of all prove his employment and the terms thereto. B. A MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) NWLR PART 145 PAGE 506; MRS. ROSE E. EFURIBE V. DR. G. M UGBAM & ORS (2010) LAW PAVILLION ELECTRONIC LAW REPORT 4079 (CA); FIICHARLES ORGAN & SORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LAW PAVILLION ELECTRONIC LAW REPORT – 20942. Urging the Honourable Court to hold against the Claimant for failing to plead his letter of employment or the date of his employment as neither of these were established at the trial as required by law. MOROHUNFOLA V. KWARA TECH (Supra). Concerning the Claimant’s assertion that he was redeployed to Calabar as the Regional Coordinator of South-South and South East Regions and that he, to the knowledge of the Defendant lived in a hotel and incurred bills. Learned Defence Counsel pointed the Court to the case of ATTORNEY GENERAL OF BAYELSA STATE V. ATTORNEY GENERAL OF RIVERS STATE (2006) IS NWLR PART 1012 PAGE 596; (2006) 12 SC 134where the Supreme Court held that; “The law is settled that in civil cases, it is incumbent on a party who is claiming a relief against his opponent to prove what he asserts, for unless he provides good and credible evidence to discharge the burden of proof placed on him by law, his case is bound to fail. He who asserts must prove” per MUKHTAR J. S.C see also Section 136 of the Evidence Act 2011. See also the case of ARUM V. NWOBODO (2004) 9 NWLR PART 878 411 where the Court explained the Maxim “ei” qui afirmat non ei qui negatincumbit probation” which means the burden of proof lies on the one who alleges, and not on him who denies”. The Defense Counsel further points out that the Claimant in his Reply to Defendant’s Statement of Defence dated 18th of February, 2015 and filed on the 19th of February, 2015 failed to reference the Defendant’s allegations and doubts concerning the ‘dodgery’ Hotel receipts. KANU C. OFFONRY V. HELEN PRETTY EMEZI & ANOR (2012) LAW PAVILLION ELECTRONIC LAW REPORT 15356 (CA); BAKARE & ANOR V. IBRAHIM (1973) 6 SC 205 and MOBIL V. ASURAH (2001) 16 NWLR PART 740 PAGE 723.It is Counsel’s contention that the Claimant pleaded at paragraph 11 of the Statement of fact and averred at paragraph 9 of the Witness Statement (Exhibit C1) that the hotel room was assessed at N3,000.00 a night and he made the payments monthly and was sending demands to the defendant since 30/9/2007and that these pieces of evidence –in-chief were grossly and materially contradicted under cross examination where the Claimant maintained that he made one off payment in 2009 for the whole sum of N2,100.000 now claimed. HON. JEFFREY MOSES OWOR V. HON. BEREWARE CHRISTOPHER & ORS (2008) LAW PAVILION ELECTRONIC LAW REPORT – 4813 (CA) the court held that; “It is trite that where the evidence of a witness as in this case, is filled with material contradictions, the court or tribunal cannot pick and choose between them but must regard the entire testimony as unreliable”. He submitted that it is also settled law that a witness who makes inconsistent statement in court should be regarded as an untrue witness as regard those statements. CONSOLIDATED BREWERIES PLC & ANOR V. AISOWIEREN (2002) FWLR PART 116 PAGE 949; SALEH V. BANK OF THE NORTH LTD (2006) 6 NWLR PART 976 PAGE 316.Submitting that the Claimant had under cross examination admitted that his salary was N21,500.00 net of taxes whereas Exhibit C2 – confirmation of appointment – shows that the Claimant’s salary is N21,000.00 after tax even by using the Claimant’s figures of N21,500.00, and that there is no way two month’s salary would be N77,005.16. moreover, that the claimant did not plead the particulars of this item of claim and he did not specifically prove same. JOSEPH H. OMEREDE V. OGBONAYA ELEAZU & ORS (1996) 6 NWLR PART 452 PAGE 1. With regard to issue 3;-Whether the defendant was within its right in the circumstances of this case to issue Exhibit C5 – the letter of suspension to the claimant. Learned Defense Counsel submitted that the provisions of Staff Hand Book (Exhibit D2) under “MISCONDUCT AND DISCIPLINE OF STAFF” at page 3 thereof particularly clause 1 paragraph 2 and 3, empowers the Company to suspend the Claimant from the operations of the Company and without wages or salaries for the period under which the Claimant would be on suspension. Submitting further that the provisions of Staff Hand Book (Exhibit D2) under “MISCONDUCT AND DISCIPLINE OF STAFF” at page 3 thereof particularly clause 1 paragraph 2 and 3, empowers the Company to suspend the Claimant from the operations of the Company and without wages or salaries for the period under which the Claimant would be on suspension. And that Exhibit D2 constitutes part of the terms of the contract of service between the Claimant and the Defendant and the court is enjoined to enforce contracts and maintain the sanctity of such contracts. ATTORNEY GENERAL RIVERS STATE V. ATTORNEY GENERAL AKWA IBOM STATE (2011) 8 NWLR PART 1248 PAGE 31.Thereby arguing that the law allows for suspension to be issued within the competence of the relationship between the parties. BERNARD OJIEFOR LONGE V. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR PART 1189 PAGE 1. With regards to issue 4;-Whether the claimant’s claim for the sum of #5, 000, 000.00 as general damages avails the claimant. Learned Counsel for the defendant submitted that the Claimant in making this head of claim at paragraph 26(5) of his Statement of fact failed to avail the court whether in his pleadings or in his testimony either in-chief or under cross examination any shred of evidence to apply in determining this claim; as per ONNOGHEN J.S.C. in GABRIEL ATIVIE V. KABLE METAL NIG LTD (2008) 10 NWLR PART 1095 PAGE 399, The Claimant’s Submissions With regards to claimant issue 1;-Whether or not the claimant is a juristic person to invoke the jurisdiction of this Honorable Court to entertain and determine this action in this present suit. Learned Counsel to the Claimant J. N. Okare Esq. submitted that there are two categories of persons who can sue and be sued in law, these are natural and artificial persons and that a person is said to be a legal person known to law and capable of suing and being sued if he is either natural or artificial. ATTORNEY GENERAL OF FEDERATION v. A.N.P.P. (2003) 18 NWLR (PT. 851) 182; REPTICO S.A. GENEVA v. AFRIBANK (NIG.) PLC (2013) 14 NWLR (PT. 1373) 172 @ 207, PARA. C. Contending that the defendant is neither misled nor confused at all by the variation of the claimant’s names in this case and as such, the variations do not create a misnomer in law. On when difference in the name of a party to a suit will not be fatal, counsel cited the case of KALU v. CHUKWUMEREIJE (2012) 12 NWLR (PT. 1315) 425 RATIO 9; ESENOWO v. UKPONG (1999) 6 NWLR (PT. 608) 611.Claimant’s Counsel submitted further that contemporary jurisprudence eschews technical justice and enjoins courts to always do substantial justice in the determination of disputes between parties. UKIRI v. GECO-PRAKLA (NIG.) LTD. (2010) 16 NWLR (PT. 1220) 544 @ 558, PARA. A; U.B.A. LTD. v. NWORA (1978) 11-12 S.C. 1; SURAKATU v. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD. (1981) 4 S.C. 26; AKAN v. BOB (2010) 17 NWLR (PT. 1223) 421. With regards to issue 2;-Whether or not from the totality of the evidence on record, the claimant has, on preponderance of evidence prove/established his claims in the present action. Answering in the affirmative, Learned Counsel to the claimant contended that the clamant adduced cogent and credible evidence in support of his claims and he has on a balance of probabilities established his claims against the defendant and hence entitled to judgment. ADEDOYIN v. AFRICAN PETROLEUM PLC (2014) 11 NWLR (PT. 1419) 427, PARAS. E-F; S.P.D.C.N. LTD. v. EDAMKUE (2009) 14 NWLR (PT. 1160) 1 @ 32, PARA. A.Submitting that on the strength of FIICHARLES ORGAN & SONS v. NIGERIAN LIQUIFIED NATURAL GAS LTD. & ANOR. (2013) LPELR – 20942, a letter of employment is a document that shows employment and without which no employment can be inferred. That in the instant case, the existence of employment relationship between the parties was not/never in issue. Arguing further that in view of admissions proving the existence of employment by producing and tendering a letter of employment becomes irrelevant and unnecessary and after all, that by Sec. 123 of the Evidence Act, 2011, what is admitted need no further proof. CHUKWU v. AKPELU (2014) 13 NWLR (PT. 1424) 359 @ 387, PARA. E; FADEYIBI v. I.H. (BEVERAGES) LTD. (2013) 4 NWLR (PT. 1344) 353 @ 367, PARAS. D-E. EKE v. OKWARANYA (2001) FWLR (PT. 51) 1974) 1996, PARAS. B-C; Pp. 1997, PARAS. D-F; GOVERNOR OF EKITI STATE v. OJO (2006) ALL FWLR (PT. 331) 1298 @ 1328, PARAS. D-G. Counsel submitted that by the primary rules of pleadings, an averment which is not expressly traversed is deemed to be admitted. To the claimants the testimony of the DW1 to the effect that the claimant was eventually dismissed by the defendant that elicited during the DW1’s cross-examination on 15/04/2015 is inadmissible as that material fact is not specifically pleaded by the defendant, as by law, evidence elicited during cross-examination on facts not pleaded is inadmissible and where such evidence is put on the court’s records, it goes to no issue and must be expunged. THE SHELL PETROLEUM COMPANY NIG. LTD. v. AMARO (2000) NWLR (PT. 675) 248 @ 270; OKWEJIMINOR v. GBAKEJI (2008) ALL FWLR (PT. 409) 405 @ 424, PARAS. D-E; UGO v. OBIEKWE (1989) 1 NWLR (PT. 99) 566 @ 583; ACCESS BANK PLC v. MUHAMMED (2014) 6 NWLR (PT. 1404) 613 @ 625, PARAS. D-E. To the claimant Counsel the Claimant is still in the defendants employment a fact stated in paragraph 23 of the Statement of Facts which was admitted and therefore needs no further proof. SEC. 123 of the EVIDENCE ACT, 2011 (as amended); JOSHUA v. STATE (2000) 5 NWLR (PT. 658) 591 @ 614, PARA. H. Submitting that the failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness and where such piece of evidence has not been challenged in cross-examination, the court is to accept such unchallenged piece of evidence. EMIRATE AIRLINE v. NGONADI (NO. 2) (2014) 9 NWLR (PT. 1413) 506 @ 534, PARAS. D-E; EGUMI v. STATE (2013) 13 NWLR (PT. 1372) 525 @ 552, PARAS. F-H; AMADI v. NWOSU (1992) 6 SCNJ (PT. 1) 59 @ 71 LINES 5 – 12; ODUNEYE v. STATE (2000) FWLR (PT. 13) 2289 @ 2307, PARA. E; FATILEWA v. STATE (2007) 6 W.R.N. 41 HOLDING 15. To the claimant ignoring to the notice to produce the Defendant’s Attendance Register and refusing to produce same, raises the presumption that was this document produced; it would have been unfavourable to the defendant. SEC. 167 (d) of the EVIDENCE ACT, 2011; THE PEOPLE OF LAGOS STATE v. UMARU (2014) 7 NWLR (PT. 1407) 584 @ 620, PARAS. A-H; ODOGWU v. STATE (2013) 14 NWLR (PT. 1373) 74 @ 115, PARAS. B-D; EKWEOZOR v. REG. TRUSTEES, S.A.C.N. (2014) 16 NWLR (PT. 1434) 433 @ 475, PARAS. C-E; GEROGE v. STATE (2009) 1 NWLR (PT. 1122) 325. Submitting further that the defendant denied service of Exhibit C7 but in order to prove service of the document on them, the claimant tendered in evidence, a delivery/dispatch slip of EMS Speed post – Exhibit C17, which in law, amounts to proof of service. NLEWEDIM v. UDUMA (1995) 6 NLWR (PT. 402) 383 @ 394, PARA. B. Learned Counsel submitted that the law is trite that the period of suspension is regarded as period of service which spans till when the employer rejects/refuses to reinstate a suspended employee. EKPEOGU v. ASHAKA CEMENT CO. PLC (1997) 6 NWLR (PT. 508) 280, per Muntaka-Coomassie, JCA @ 291, PARAS. F-G. And that in a contract of employment, the authority of the employer to suspend an employee abated when the employee is exonerated by the Police or Court. On the issue of suspension without pay, he cited the authority of YUSSUF v. VOLKSWAGEN OF NIGERIA LIMTED (1996) 7 NWLR (PT. 463) 747 @ 753, PARAS. B-C; P. 755, PARA. A RATIO 2. To the claimant in law, special damages must be specifically pleaded and strictly proved. BRITISH AIRWAYS v. ATOYEBI (2014) 13 NWLR (PT. 1424) 253 @ 286, PARA. F; OKOROAFOR v. UDENSI (2014) 15 NWLR (PT. 1431) 487 @ 499, PARAS. E-F. Contending that if the defendant had sought to disprove the claimant’s documentary evidence (i.e. Exhibits C8, 1-63) which were used to support the claimant’s averments, the defendant was bound to plead that the claimant’s documentary evidence was fraudulent or forged with the particulars of fraud or forgery clearly disclosed. USENFOWOKAN v. IDOWU & BROS & ANOR. (1969) 1 NMLR 77; FABUNMI v. AGBE (1985) 5 SC 28 @ 76, per Obaseki, JSC. Arguing that is under the old law that a person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of fact establishing the alleged fraud so as not to take the opposite party by surprise. ADEOYE v. JUNADU (1975) 1 ALL NLR 257 @ 261; OJUBAH v. OJUBAH (1991) 6 SCNJ 156 @ 164, per Nnaemeka-Agu, JSC; GBADAMOSI v. KABO TRAVELS LTD. (2000) 8 NWLR (PT. 668) 243 @ 283-284, PARAS. G-C, per Salami, JCA; UNITED AFRICA CO. LTD. v. TAYLOR (1936) 2 WACA (PC) 70 @ 71, per Lord Maugham. Urging the Court to disregard and jettison the defendant’s contention to the effect that Exhibits C8, 1-63 were forged as well as the claimant being a fraudster and a fraudulent person. UKEJE v. UKEJE (2014) 11 NWLR 9PT. 1418) 384 RATIO 7; USEN v. BANK OF WEST AFRICA LTD. 91965) 1 ALL NLR 244 @ 247. To the claimant given the wrongs established against the defendant, the claimant, as the aggrieved party consequently becomes entitled to the claim of general damages for the damage, loss or injury he has suffered, and that these general damages of #5 Million claimed need not be specifically pleaded and strictly proved. AGI v. ACCESS BANK PLC. (2014) 9 NWLR (PT. 1411) 121 @ 159, PARAS. E-F. With regard to issue 3;- Whether the defendant’s right to issue Exhibit C5 – Letter of Suspension, can be arbitrary exercised and in violation of the disciplinary procedures of her Staff Handbook – Exhibit D2.Claimants Counsel submitted that said ruling and/or verdict in Exhibit C6 was not appealed against and by law remains subsisting, final and inviolate in the absence of an appeal. ENTERPRISE BANK LTD. v. AROSO (2014) 3 NWLR (PT. 1394) 256 @ 301, PARA. H. Contending that the claimant and the defendant are equally bound by the contract of employment enshrined in the defendant’s Staff Handbook – Exhibit D2. IDUFUEKO v. PFIZER PRODUCTS LTD. (2014) 12 NWLR (PT. 1420) 96 @ 115, PARAS. C-E; P. 132, PARAS. E-G; IBAMA v. SPDC NIG. LTD. (2012) 4 NILR 75 @ 93-94, PARAS. D-A. Learned Counsel for the claimant submitted that the defendant who never specifically denied/traversed the averment at paragraph 26 (1) of the Statement of Facts is by law deemed to have accepted this material fact and conceded to this strong challenge. EKE v. OKWARANYA (supra) @ 1996, PARAS. B-C; P. 1997, PARAS. D-F; GOVERNOR OF EKITI STATE v. OJO (supra) @ 1328, PARAS. D-G; CHUKWU v. SKPELU (supra) @ 387, PARAS. E-H. The Defendant’s Submissions in their Reply on Points of Law The learned Defence Counsel noted that the Claimant in his brief of arguments at paragraph 4.36 – 4.41 raised the issue of fair hearing on the ground that the disciplinary procedure in sub-paragraph III at pages 4-5 of Exhibit D2 was not strictly followed before the letter of indefinite suspension was issued. He submitted that the contention of the Claimant is not the position of the law. MR. S. ANAJA V. UNITED BANK FOR AFRICA PLC (2010) LPELR – 3769 (CA); YUSUF V. UNION BANK OF NIGERIA LTD (1996) 6 NWLR PART 457 PAGE 632, per KATSINA-ALU, J.S.C (as he then was). To the defendants that the position of the law as espoused in the Supreme Court case of NIGERIAN NATIONAL PETROLEUM CORPORATION V. CLIFCO NIGERIA LIMITED (2011) 4 SCNJ 107is that; “Evidence ought to be lead before an award for special damages is granted. To succeed in a claim for special damages, it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.” Per RHODES –VIVOR, J.S.C. Furthermore, they argue that even where the Defendant did not deny the claim or join issues with the Claimant, the Claimant has a burden to discharge and specifically prove the special damages. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD V. CHIEF G.B.A TIEBO VII ORS (2005) 6 NWLR PART 931 PAGE 439 in underlining the importance of strict proof of special damages held that; “The failure of the Defendant to challenge the items of claims for special damages does not lessen the burden of strict proof on the Plaintiff.” Learned Counsel to the Defendant contended that the Claimant also owes a duty to himself to mitigate his losses not to stay at home for over three years and then show up and claim arrears of salary from the Defendant for staying at home. That in law, the Claimant is under obligation to minimize damages. In the case of ENGR. SAMUEL E. AKINBIYI V. LAGOS ISLAND LOCAL GOVERNMENT COUNCIL & ORS (2012) LPELR 19839 (CA); OWNERS OF DREDGERS LIESBOSEH VOWNERS OF STEAMSHIP EDISON (1933) AC 449 Defence Counsel argued that the Defendant did not plead fraud but pleaded enough facts in the statement of Defence to cast aspersion on the said Hotel receipts to impugn same before this court. Exhibit D1 paragraph 29; MUSA ABUBAKAR V.E.I.CHUKS (2007) 12 SC1; (2007) 18 NWLR PART 1066 PAGE 386Arguing that the Claimant was quarrelling that they only said the receipts are “Suspect” and contend that they are indeed suspect. Citing and relying on Merriam –Webster Dictionary published by Encyclopedia Britannica Company, 2015 Edition which defines the word “Suspect” as something “regarded or deserving to be regarded with suspicion: Suspected. It is something that is doubtful, questionable.” OGUNSAKIN V AJIDARA (2010) ALL FWLR PART 507 PAGE 109. On the 29th September 2015 the court asked that the parties further address the court on the effect or import of the Magistrate Court discharge granted the claimant on their respective positions. To the defendants, the case law authorities are very clear and they would wish to emphasize that the claimant was expected in law to mitigate his damages but did not do so. The claimant was discharged in 2009 but came to court in 2013 arguing that if the defendants had any liability it would not be undetermined or dependent on whenever the claimant decided to surface. To the claimants their position is as stated in their final written address, arguing that the defendant took them to court and following their discharge they wrote for reinstatement and sent the mail by courier as evidence of delivery. The defendants replied that they did not charge the claimant to court he committed an offence elsewhere and was charged to court, based on that he was suspended pending the outcome of that other matter. The matter was thereafter adjourned to judgement. The Courts Decision. Having carefully summarized the position of both sides, the arguments and submissions of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contentions of the parties, and their written submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. The issues for determination to my mind is simply;- 1. Whether the claimant is a legal person. 2. Whether the claimant has proved his claims as set out in his Complaint and Statement of Facts. Both parties but more particularly the defendants made heavy weather of the prolific use of various names by the claimant, to the court the only question of import;- which is of the identity of the party in question, there should be no doubt as the identity of the person of the claimant in this case see NJAMANZE Vs. SHELLB.P. PORTHARCOURT [1966] NSCC (Vol.4) 6. The Court of Appeal in the case of BASHIRU MOHAMMED Vs. THE STATE (2010) LPELR-9019(CA)had this to say as to the meaning of a name "Name means, "a word or phrase identifying or designating a person or thing and distinguishing that person or others." See Black's Law Dictionary 8th Edition P.1048. It depicts the epicenter and essence of an individual's being. Thus, the unmistaken identity of a man, in addition to his physiognomy, is depicted and embedded in his name, among others. It further differentiates one human being from the other and also affords ready identification and recognition." Per OREDOLA, J.C.A. (Pp. 41-42, paras. G-B) Also in the case of THE EXEC. OF THE ESTATE OF GEN. S. ABACHA (DECEASED) V.EKE-SPIFF & ORS (2009) LPELR-3152(SC) or (2009)2-3SC (Pt. II39) the Apex court held “It should also be noted that the name of a competent party to a suit must be the real name by which he is known in the case of a natural person and, its corporate name, in the case of a non-natural legal personality". Per MAHMUD MOHAMMED, J.S.C. (P. 51, paras. A-B). Before the court stands the claimant who described himself during trial as Solomon Joshua Udo John but instituted this suit as John Solomon Joshua, but with respect to his employment with the defendants was known as John Solomon. The defendant his employees on receipt of the claimants processes did not raise the issue of the claimant identity but proceeded to respond to his processes and make their defence. Had they raised the gauntlet the claimant was not their employee and unknown to them the copious contentions of the defendant would have had more bearing and meaning but having said that, and coupled with the lack of a reasonable explanation for the claimant as to the interchangble use of names by the claimant, as it is noted that throughout the trial the claimant was arraigned and referred to as John Joshua and the fact that in Exhibit C7 the claimants counsel referred to the claimant as John Solomon a.k.a. (Also Known as) John Joshua, I find that there is no confusion or doubt as to the identity of the claimant with regards to the reliefs sought in this suit, the question is what name does he bear, the claimant tendered no identification documentation to support his actual nomenclature such as Certificate of birth or the like leaving the court with the task of resorting an exploration based on the preponderance of document to determine the actual name or names of the claimant, the court finding notwithstanding would be of no effect in respect of the authenticity of the exhibits tendered in this court would be determine as they arise where the said exhibit is considered relevant. I find and hold that claimant is a natural person legal and recognizable in law and is an identifiable legal person for purposes of this trial and has been identified as John Solomon, John Joshua and John Solomon Joshua. Issue 2. Whether the claimant has proved his claims as set out in his Complaint and Statement of Facts. The claimants reliefs are as follows;- 1. AN ORDER declaring that the Order of indefinite suspension placed on the claimant by the defendant without payment of salaries/allowances upon an unfounded indictment of official corruption and the failure to recall the claimant to the employment of the defendant since March, 2009 till date is illegal, null and void and of no moment in law. 2. AN ORDER directing the defendants to forthwith pay the claimant the total sum of One Million, Nine Hundred and Eighty Seven Thousand, Six Hundred and Thirty Six Naira (#1, 987, 636.70) only, being outstanding monthly salaries/allowances due to the claimant for the months of March, 2009 till July, 2013 which salaries/allowances is assessed at Thirty Seven Thousand, Five Hundred and Two Naira, Fifty Kobo (#37, 502.58) per month. 3. AN ORDER directing the defendant to forthwith pay the sum of #77, 005.16 only owed the claimant being arrears of salaries/allowances for the months of January, 2009 to February, 2009 which sum the defendant has, in spite of repeated demands refused to pay to the clamant. 4. AN ORDER directing the defendant to pay the claimant the sum of Two Million, One Hundred Thousand Naira (#2, 100, 000.00) only, being refund of accumulated accommodation bills incurred by the claimant from 30/09/2007 to 30/07/2013. 5. General damages of Five Million Naira (#5, 000, 000.00) only. Relief 1: Is for an order declaring that the indefinite suspension placed on the claimant by the defendant without payment of salaries/allowances upon an unfounded indictment of official corruption and the failure to recall the claimant to the employment of the defendant since March, 2009 till date is illegal, null and void and of no moment in law. The position of the law as was stated in the case of ATOKI v. ECOBANK PLC (2014) 47 NLLR (PT. 151) 47 Where this court held that “ the employer has the right to suspend an employee when necessary, with or without pay or at half pay. However, employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay the employer has taken it upon itself (outside of the court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. SHELL PET. DEV. C. (NIG.) LTD v. OMU (1998)( 9 NWLR (PT. 567) 672. The case went on that “ Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Under the Common Law, a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment. An employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service during the suspension period until the contract of employment is determined by the employer or until a decision about such an employee is taken one way or the other. Citing LONGE v. FBN PLC (2010) 6 NWLR (PT. 1189) 1. Suspension is an aspect of the discipline of a staff by an employer and an employer has the right to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. The scope of the right of employer to suspend an employee is thus contingent on the contract of service and/or conditions of service. Both parties agree that exhibit D2 is the staff handbook that governs the employment of the claimant with the defendant and in page 3 Misconduct and discipline of staff state in the 2nd paragraph that;- “ An officer may be SUSPENDED with or without warning for committing any breach of the rules and regulations of the company not grievous enough to lead to dismissal or termination.” “An officer of the company on suspension is not entitled to wage /salary for such a period that he is on suspension.” From the foregoing I find that the right to suspend the claimant without pay has been reserved by the contract of service. Relief 1 therefore fails. Relief 2: The claimant was suspended through the instrumentality of Exhibit C reproduced below;- The law is, as noted by the defendant quite clear as to the position to be followed when a person is exonerated of criminal charges which formed the bases for the reason he was disciplined by suspension or termination as the case may be, The position is typified in the Supreme Court case of NPS Vs. AJOBI[2006] LPELR 2029 SC.(Although this authorities was not addressed by either party the factual circumstances are very similar) Also referred to at length by the Learned Author, Dr. Jerry Amadi in his book Limitation of Actions (Statutory and Equitable Principle) in that case the respondent who at the court below was the plaintiff, was an employee of the appellant authority. Following some unwholesome allegation leveled against the respondents, the appellants caused a panel or tribunal to be set up with the object of investigating these allegations. In fact the appellant instigated a criminal trial against the respondent at the Magistrate Court over the same criminal allegations. At the end of the trial, the respondent was discharged and acquitted in December 1985. Meanwhile the appellants had dismissed the respondent in 1984. After his acquittal the respondent requested that appellants re instate him. The appellants declined, and in 1996 the respondent instituted an action in the High Court Warri against the appellant, the appellant raised the issue of statute bar. In that case the limitation period was provided by the NPA Act which provided that an action must be commenced within 12 months of the accrual of the cause of action. The trial court refused to hold that the suit was statute barred rather holding that the plaintiff could not have taken action while the criminal trial against him was pending, for the trial judge time began to run from the date the criminal trial was terminated in favour of the plaintiff. On appeal Akintan JCA (as he then was ) held….that the learned trial judge was wrong in holding that the date to be used in computing the period is not the date the respondent was dismissed but the date he was acquitted of the criminal charges against him. At the Supreme Court it was held unanimously that the reliefs wherein the claimant sought re instatement and salary up to the date of judgement are not caught up by the limitation law as the Court went on to state that in this case the plaintiff needed evidence among others to prove he was discharged and acquitted of the offences on which he dismissal was based. And that, that being the case time started to run when the plaintiff was discharged and acquitted on 23rd December 1985.See MR. ORAGBADE OLUGBADEVs. SKYE BANK PLC, NICN/IB/66/2013 (unreported) delivered February 12th 2014. In MR. BABATUNDE OGUNSOWO VS. DANA MOTORS LIMITED (UNREPORTED) SUIT NO. NIC/LA/117/2011delivered on the 10th July 2013, this court held that a discharge from a magistrate court was a favourable termination for a recall. The claimant are asking for salaries and allowances from that date of suspension until judgment, while the defendants maintain that the claimant is not so entitled arguing non mitigation of damages, and indolence in approaching the employer accordingly. Apply the ratio in AJOBI’S CASE Supra and OGUNSOWO VS. DANA MOTORS LIMITED supra the claimant would be entitled to his salaries and due allowances for the period of the suspension up to the discharge. The defendants argue that the claimant ought to have mitigated his damages. The legal position is that the claimant must mitigate his damages. ANGELLA CATTENEO Vs. CANDIDO DA ROCHA & ANOR [1932] 11NLR 57, TANKO V KADUNA NORTH LOCAL GOVERNMENT COUNCIL & 2 ORS [2012] LPELR 12211 CA. A wrongfully dismissed servant is under duty to mitigate his own loss which means that he must be reasonably active in seeking an alternative employment. However how tenable is this argument considering that the claimant was not dismissed (rightly or wrongly) but only suspended and suspension has been held to not terminate the employment relationship merely puts it in abeyance, see the case of ATOKI v. ECOBANK PLC (2014) 47 NLLR (PT. 151) 47 where it was held that suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. This notwithstanding the claimant has not provided any explanation for the three year interregnum between 2009 and 2012 when he wrote Exhibit C 7letter initiating his recall. In the circumstance the court cannot say the claimant acted diligently in coming to court diligently.. I find that the period of 23rd June 2009 to 17th September 2012 ought to have been mitigated by the claimant and there is no evidence that this was ever done. Also requiring determination is what the claimant is entitled to as salary. The claimant is asking for N37, 502.58 as his monthly salary, the claimant has offered no further evidence to support his claim to this amount neither pay slip, bank statement or a letter of promotion to support this position. On the contrary Exhibit C4indicates that the claimant salary up to December 2008 stood at 27,502.58 from all indications and the evidence before the court the claimants salaries as at March 2009 stood at N27, 502,58. As I stated earlier the claimant has not put before the court any evidence of the payment of N10, 000.00 allowance no voucher neither did he call any witnesses ( e.g co employers to testify as to the existence of such allowance) hence the claimant has failed to prove any entitlement to any named sum as an allowance(s) I find that the claimant has not proved his entitlement to the sum of One Million, Nine Hundred and Eighty Seven Thousand, Six Hundred and Thirty Six Naira (#1, 987, 636.70) only having failed to prove that N37, 502.08 as his monthly salary. Relief 2 only succeeds in part. Relief 3: It is also the claimant case that the defendant did not pay him for the month of January to March. That the defendant still considered the claimant in his employment until March 2009 is evidence from not only ExhibitC4 - C4(31) but also the testimony of DW under cross examination. I am satisfied that the claimant was not paid his salaries for the months of January –March 2009 and by the admission of DW the claimant is entitled to this I find. Relief 3 therefore succeeds. Relief 4: It is the claimant’s case that the defendants transferred him from Port Harcourt, Rivers State to Calabar, Cross River State. With an arrangement that his expenses would be met by the defendants. This is the bed rock of relief 4 for an order directing the defendant to pay the claimant the sum of Two Million, One Hundred Thousand Naira (#2, 100, 000. 00) only, being refund of accumulated accommodation bills incurred by the claimant from 30/09/2007 to 30/07/2013. The Defendant denies transferring the claimant but states that the Claimant was sent to Calabar at times on one off assignments to any of the Company’s location around the South-South Region and that the Claimant’s expenses for such trips are usually given to him before the commencement of the journey. Defendant reiterated that fact that the Claimant was not transferred to Calabar and at no time did the Defendant relocate the Claimant to Calabar. The claimant in support of this claim tendered Exhibits C8, 1-63, both parties made heavy weather of these exhibits and a close look at these exhibits reveal that these documents purported to be written over a period of six years were all written by the same hand in serially numbered pages of the receipt booklet which would mean at worst that throughout the 6 years in question the claimant was the only guest in this hotel or that at best the booklets in question were dedicated to him. All this is well and good but the basis for this claim has not been put before this court. Nothing has been presented by the claimant to establish that he was in fact entitled to the refund of hotel expenses, no contract of employment containing refund of hotel expenses as one of its terms to enable the court consider these bills. Neither is there any document to prove the claimants transfer but most worrying is the fact that these receipts predate the said transfer and there is not document before the court to show that the claimant ever presented this bill or its ilk before the defendant a fortori any previous approval of same. For the above reason I find Exhibits C8, 1-63 unreliable and the claim unsubstantiated. Relief 4 in consequence fails. I find and hold. I find that the actions of the defendant evince an intention to terminate the employment relationship between it and the claimant, with the indefinite suspension. March 2009 till date as well as the refusal to recall. The claimant, considering the favourable pronouncement of the Exhibit C ordinarily would be entitled to be paid the backlog of his salary and allowances together with all other entitlements that go with repudiation of the employment for the period of the suspension up to the date of this judgment. However having found that the claimant was expected to mitigate his damages and considering the lack of any evidence tendered by the claimant in mitigation particularly with respect to this. I find the claimant shall therefore be entitled to his salaries for the period of suspension until 23rd June 2009 This is because the suspension of the claimant since 2nd March 2009 amounts to a repudiation of the contract of employment of the claimant by the defendant but effective only from the date of this judgment. However having failed to provide mitigation for the period of 23rd June 2009 to 17th September 2012 this court is compelled to deduct this period from the backlog of salaries the defendant ought to pay to the claimant. See the case of MR. JOHN E. AGBOR Vs. CROSS RIVER STATE UNIVERSITY OF TECHONOLOGY unreported SUIT NO: NICN/CA/11/2013 delivered on the 3rd June 2015following OBASUYI Vs. BUISNESS VENTURES LTD [2000] LPELR 2155 SC. This means that the backlog of salary that the defendant ought to pay to the claimant is the salary of March 2009 to date;- October 29th 2015, the effective date of the repudiation of the employment contract. This puts the period to be 79 months 25 days. Less the period of 23rd June 2009 to 17th September 2012 which comes to 38 months and 24 days leave the claimant entitled to all his due salaries and entitlement for the period amounting to 41 months and 1 day, I find. Having found that the claimants salary before this court stood at N27, 502.58 as at the time of his suspension the claimant is therefore entitled to salary of for the period the court has found due to him which is 41 months and day = N1, 127,606.78 + one days salary (N27, 502,58/31 days) = 887.18 The claimant is entitled to the sum of N1, 127,606.78 + 887.18 = N1,128,493.96 Having earlier held that the claimant is entitled to be paid the backlog of his salary and allowances together with all other entitlements that go with repudiation of the employment the claimant would ordinarily be entitled to his due terminal benefits and severance entitlements but in the instant case the has claimed none and Exhibit D2 makes no provision on this for the court to rely on in the wake of CHIGOZIE EZE & ORS V GOVERNOR OF ABIA STATE & ORS(2014) 1 PELR-2327(S.C) and as this courts cannot not father Christmas the court cannot grant any relief not specifically prayed. Relief 5 is for an award of N5,000.000.00 the claimant has not told this court how he came about this figure or given evidence as to how suffering or his injury and etc to grounds this claim, this claim therefore this claim therefore cannot be substantiated in consequence it therefore fails as couched. A reasonable man considering the length of time it took the claimant to repruced the suspension would agree that the claimant is entitled to some days but how much? Deprivety not N5million For avoidance of doubt the claimants claim succeed but only this far;- It is hereby ordered that the defendants forthwith pay to the claimant within 30 days the total sum of N1,128,493.96 One Million One Hundred and Twenty eight Thousand, Four Hundred and Ninety three Naira Ninety-six Kobo being outstanding monthly salaries/allowances due to the claimant for the months of 2nd March 2009-23rd June 2009 and from 17th September 2012 to date;- October 29th 2015 which salaries are assessed at N27, 502.58 per month 41 month and 1 day. AN ORDER directing the defendant to forthwith pay the claimant the sum of #54, 005.16(Fifty –four thousand and five Naira sixteen kobo only) owed the claimant being arrears of salaries for the months of January, 2009 to February, 2009. The sum of N100, 000.000 is awarded to the claimant as general damages. Judgement is hereby entered. …………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division