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REPRESENTATION I.B BATIMEHIN Esq. for the claimant CHRIS EKONG for the defendant holding the brief of BOLU. A. AGBAJE JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 27th March, 2013 against the defendants for the following reliefs: 1. A declaration that the termination of the claimant’s appointment by the defendant is unlawful, null and void, ill meditated. 2. A declaration that the claimant is not indebted to the defendant in the sum of #1,244,831.00K (One Million Two Hundred Thousand, Eight Hundred and Thirty One naira). 3. A declaration that the Four Runner Jeep HX 655 AAA lawfully belongs to the claimant. 4. A sum of #6,384,000.00K being service gratuity payable by the defendant to the claimant. (Six Million Three Hundred and Eighty Four Thousand). 5. A sum of #2,749,905.00K being medical allowance, deductions from plaintiff salary on expired stocks sent to Lagos Office, deduction from float from July, 2009 to February, 2010, unpaid incentive from November, 2009 to February, 2010, salary deductions, outstanding salary, salary in lieu of notice, February and March salaries, 2010 and salary in lieu of accumulated annual leave. 6. A sum of N2, 749,905.00k being medical allowance, deductions from plaintiff salary on expired stocks sent to Lagos Office, deduction from float from July, 2009 to February, 2010, unpaid incentive from Nov. 2009 to Feb. 2010, salary deductions, outstanding salary, salary in lieu of notice, February and March salary, 2010 and salary in lieu of accumulated annual leave. 7. The sum of N12,206,326.00k (twelve million, two hundred six thousand, three hundred twenty six naira) being money paid on behalf of the defendant to various customers which the claimant serves as a link between the defendant and the various customers and local governments. 8. The sum of N157,677.00k payable to SUNDAY ASUNDE which the claimant guarantee the payment of same should the defendant’s vehicle with SUNDAY ASUNDE is released to the defendant and which the claimant had collected the vehicle and handed over same to the defendant but the defendant has refused to live to her words. 9. General damages of N10,000,000.00k for character assassination and libellous contents of the letter of termination dated March 12, 2010 written by the defendant to the claimant. 10. 30% interest on the adjudged sum due to the claimant from March, 2012 till judgment is delivered and 10% interest from the date of judgment sum is fully paid. Hearing in this case resumed before this Court while sitting In Ibadan on 12th July 2014 the case proceeded to trial and the defendants witnesses testified on June 18th 2014 whereupon the defendants counsel informed the court that he is required to call his other witness /recall his previous witness then the matter was adjourned to 22nd July 2014 which unfortunately fell within the 2014 JUSUN strike when the court did not sit. On resumption for sitting after the strike this court had been transferred to Calabar with the remit that all pending trial matters should start de novo before my Learned sister F. I. Kola-Olalere JNICN in Ibadan. The matter was mentioned and slated for hearing when upon consent of both counsel that the defendant had opted not to call further witness and application to the President NICN the matter was assigned under fiat of the President of the National Industrial Court dated 16th September 2016 directing this court to conclude proceedings and render judgment in this matter in Calabar. The Claimant’s case on the record is that he was employed by the defendant in 2005 as the defendant’s Regional Sales Manager and since his employment and subsequent confirmation; he has tremendously improved the sales of the defendant’s stock in all the states he covers. The Claimant further pleaded that up till March, 2012, all he received from the defendant were praises and recommendations on his performance and he was surprised to get a letter of termination from the defendant purporting that the claimant incurred of some doubtful debts. The Claimant maintains that he does not owe the defendant and has not at any point been indebted to the defendant, rather, it is the defendant that owes him variously for the monies he spent in his official capacity, unpaid allowances and entitlements; and that no panel of enquiry was set up to investigate the allegation made against him. The defendants filed their STATEMENT OF DEFENCE dated 16th December, 2013 on 17th December, 2013. The Defendants case on the pleading is that the claimant was only offered a probationary employment as Regional Sales Manager – West at the defendant’s Ibadan depot vide letter dated 28th May, 2005 and the claimant’s employment was subsequently confirmed in line with the defendant’s administrative policy to take effect from 26th April, 2006. The Defendant pleaded that the claimant was, at all material time to this suit, issued with queries by the management of the defendant for poor sales performance and poor supervision of the claimant’s subordinates. The Defendant pleaded that a Four Runner Jeep (HX 65 AAA) was given to the claimant as official car with an increase in his salary to reflect his new status as Divisional Sales Manager and that the claimant was not in any way entitled to any medical allowance under his letter of employment or at all. With regards to the operational float, the defendant stated that it is part of management’s policy to give operational cost, known as “float” to each of its Divisions for the day to day operations and that the amount given to each division is determined solely by the defendant, taking into consideration the peculiar circumstances of each division in relation to the profit derived from each division and also subject to review from time to time. The Defendant denying paragraph 23 of the Statement of Facts and pleads that it did not authorize the claimant to carry out repairs of any of the defendant’s vehicles, as the defendant has a maintenance culture in place. With regard incentives the defendant maintains that by its management policy, incentives are paid on the basis of performance appraisal of individual employee and not as a right. Whereof the defendant states that the claimant’s claims are mere conjectures, frivolous, vexatious and gold-digging and should be dismissed with substantial cost. The defendant also filed the under listed COUNTER CLAIM WHEREOF the counter-claimant claims against the defendant by counter-claim as follows: 1. A sum of #1,800,000.00 (One Million Eight Hundred Thousand Naira) only, being the value of the Four Runner Jeep Official car attached to the office of the defendant by counter claim and which car the defendant by counter claim has refused to hand over to the counter claimant following the termination of the employment of defendant by counter claim and despite demands. 2. The sum of #13,155,583.14K (Thirteen Million One Hundred and Fifty Five Thousand Five Hundred and Eighty Three Naira, Fourteen Kobo) representing the amount of defendant’s goods sold by the defendant to counter claim without the consent or authority of the counter claimant which proceeds the defendant counter claim has failed, refused and neglected to remit to the counter claimant. 3. Cost of this action. The claimant filed a REPLY TO STATEMENT OF DEFENCE dated 13th February, 2014 on 14th February, 2014. Wherein the claimant further pleaded that at the time of his employment he was not given an official car despite his area of operation and was using his own personal car to the knowledge of the defendant. The claimant pleaded the contrary to the defendants position that he, the claimant, had received several queries and warning and stated that by a letter dated 1st March, 2007, he was commended as a brand builder and should put more effort in developing other branches. And that in appreciation of his dedication, loyalty and outstanding success, the defendant elevated the claimant’s status to an Acting Divisional Sales Manager with corresponding increase in his area of coverage and salary vide a correspondence dated 30th June, 2006. The Claimant restated his entitlement to medical allowance in line with the letter of appointment and the defendant’s hand book. The claimant pleaded that that there was no mechanism put in place by the defendant to mop up the expired products in circulation and as such the responsibility lies on the staff especially the claimant to send such expired products back to Lagos. The claimant pleaded that the defendant has refused to pay all the floats and incentives payable to the claimant and some operational costs incurred by the claimant in the course of performing his duty. At the trial the claimant testified as CW1, adopted his written statement on oath as Exhibit C1 and proceeded to tender 49 other exhibits. During cross examination the claimant tendered Exhibit 51 and went on to testify that he was 49 years of age and had worked at two other companies before joining the defendant, he further testified that as at the time he joined the defendants as Regional Sales Manager, the defendant were in the process of closing down depots, morale was low, bureaucracy, unpaid salaries and lack of support for sales. The claimant brought this to the attention of management and that following his liaison with the Sales Director things started improving. He further testified that when he started working with the defendants he had no official car and that he used his personal card for work, that when he was acting Divisional Sales Manager he had access to several card and that when he became Divisional Sales Manager he was given a Forerunner Jeep which the claimant maintains he bided N300, 000.00 for the jeep and it was agreed that this sum would be deducted from his salary. The claimant also called Sunday Usume a former Senior Sales Representative of the defendants who testified as CW 2. CW2 adopted is written statement on oath which was marked Exhibit C52 and identified Exhibit C17 stating that he was the maker of that document. C W2 went on to testify that he resigned from the defendants around February or March 2009, that he was using a Mitsubishi Bus while in the defendants employ and that the defendants had refused to acknowledge his resignation or pay him his gratuity and other monies and he held on to the vehicle. The defendants now wrote that he had stolen the bus he replied back to the defendants, demanding his entitlement, at that point the claimant intervened and paid him his entitlements and he gave over the bus to the claimant. CW further testified that he is unaware if the defendants ever reimbursed the claimant for the monies paid to him as his entitlements. The claimants Exhibits S/N EXHIBIT NO DESCRIPTION WITNESS DATE TENDER 1. C2(1-29) Condition of service CW1 - 2. C3 Situation report CW1 12/01/07 3. C4 Meoney float on stationeries CW1 7/02/10 4. C5(1-2) Expired and near expired products CW1 31/03/07 5. C6 Termination of employment CW1 3/03/10 6. C7(1) Offer of employment “” “” 28/05/05 7. C8 Confirmation of appointment “ “ “ 1/08/05 8. C9 Acting divisional sales manager (DSM) “ “ “ 30/06/09 9. C10 Letter of promotion “ “ “ 4/07/07 10. C11 Official introduction of new DSM “ “ “ 21/10/06 11. C12 Salary deduction “ “ “ 26/11/07 12. C13 Mis-appropriation of company’s fund “ “ “ 29/10/07 13. C14(2) June float “ “ “ 23/05/09 14. C15(1) Incentive “ “ “ 18/02/06 15 C16 Expired stock deduction “ “ “ 12/11/07 16. C17 Stealing of vehicle “ “ “ 18/04/09 17. C18 Stealing of vehicle “ “ “ 15/04/09 18. C19 Stealing of company vehicle “ “ “ 16/04/09 19 C20 Full and final settlement of account “ “ “ - 20. C21 Introduction of Asunde Sunday “ “ “ 14/07/07 21 C22 Non-payment of working float “ “ “ 15/06/07 22. C23 Recommended working float “ “ “ 10/04/07 23. C24 Sub-closure of Ilorin CW1 7/12/09 24. C25 Stock tacking of transfer to Ibadan CW1 21/12/08 24. C25 Stock tracking of transfer to Ibadan CW1 21/12/09 25. C26 Termination of agreement between Toba School and the defendant CW1 8/12/09 26. C27 Strong warning/surcharged “ “ “ 10/04/07 27. C28 Letter liquidation of near expired “ “ “ 17/07/06 28. C29 Ajibola Salami’s salary “ ‘ “ 14/07/06 29. C30 Bayo Oyediran’s wedding “ “ “ 14/12/09 30. C31 Meeting at HO “ “ “ 4/03/10 31. C32 Depot regional meeting “ “ “ 2/06/07 32. C33 Outstation allowance “ “ “ 10/02/10 33. C34 Credit note “ “ “ 13/08/10 34. C35 Credit note “ “ “ 31.12.09 35. C36(1-13) Vehicle repairs “ “ “ 20/02/10 36. C37(1-2) Outstanding expenses “ “ “ 7/01/10 37. C38 Approval of vehicle branding “ “ “ 16/06/10 38. C39 Replacement of returned stocks “ “ “ 3/06/09 39. C40(1-4) Xray report “ “ “ 9/01/09 40. C41 (1) Re stock transfer to Ilorin “ “ “ 8/09/09 41. C42(1) Re-imbursement on vehicle repairs “ “ “ 30/11/07 42. C43 Unpaid float on delivery truck “ “ “ 2/11/09 43. C44 (1) Re Bankole Waridh recommendation for promotion “ “ “ 10/02/06 44. C45(1) Target for March 2007 “ “ “ 1/03/07 45. C46 46. C47(1-4) Appraisal for promotion “ “ “ 28/01/09 47. C48 Local Government papers “ “ “ 4/03---- 48. C49 Sundry Punch “ “ “ 17/11/02 49. C50 Saturday Tribune “ “ “ 10/04/07 50. C51 Query-poor sales performance ‘ “ “ 7/03/07 The defendants witness was Abayomi Oyediran, the Logistics Manager of the defendant; DW and his written statement on oath that was marked Exhibit D1 and the defendants 10 other exhibits which were duly marked Exhibit D2-D11, Exhibit C2-C51 were duly acknowledged by the defendants. Defendants Exhibits. EX NO DOCUMENT TENDERED WITNESS WITNESS D2 Termination of appointment letter 2009 DW1 18/12/02 D3 2009 Annual leave/encashment DW1 18/07/2009 D4 Salary Increment DW1 6/5/06 D5 Petition DW1 29/3/2010 D6 Query-poor sales performance DW1 7/03/2007 D7 Local government permit with certificate DW1 11/01/2010 D8,1-3 Up-country float with certificate Dw1 07/09 D9, 1-35 Transaction for vehicles maintenance with certificate DW1 08 &09 D10 Summary details of Ibadan customers outstanding DW1 9/5/05 D11 Full and final settlement of account DW1 This matter was called up in Calabar on the 28th October 2015 and on 2nd of February 2016the counsel for the defendant formerly closed their case, parties adopted their final written addresses and the matter was adjourned for judgement. The DEFENDANT’S FINAL WRITTEN ADDRESS was dated 3rd December, 2015 and filed on 7th December, 2015. Wherein the defendants raised along with their issues the question of the ADMISSIBILITY OF EXHIBITS C14 (1-2), C15 (1), C20, C23, C25, C30 AND C37 (1) TENDERED BY THE CLAIMANT. Learned Counsel Bolu. A. Agbaje submitted that if in the course of a trial, inadmissible evidence is received whether with or without objection, it is the duty of the trial court to reject it when giving judgment. UBA PLC v. AYINKE (2000) 7 NWLR (PT. 663) 83 @ 100; AJAYI v. FISHER (1956) 1 NSCC 82 @ 84; IPINLAIYE II v. OLUKOTUN (1996) 6 NWLR (PT. 453) 148; ITA v. EKPENYONG (2001) 1 NWLR (PT. 695) 587 @ 613. Submitting that Exhibits C14 (1-2), C15 (1), C20, C23, C25, C30 AND C37 (1) being computer generated evidence are not admissible as a matter of course, that admissibility of computer generated documents or document downloaded from the internet is governed by the provision of Sec. 84 of the Evidence Act, 2011. KUBOR v. DICKSON (2013) 4 NWLR (PT. 1345), per Onnoghen, JSC; AKEREDOLU & ANOR. v. MIMIKO (2013) LPELR-20532 (CA). He contended that the failure of the claimant to accompany the aforesaid exhibits with a certificate confirming their authenticity, more so that the documents are purported documents emanating from the defendant, have rendered the said exhibits inadmissible as statutorily proscribed documents and same having been wrongly admitted by the Honorable Court must be expunged from the Court’s record. According to the defendants counsel this point is not diminished by the salient provision of Sec. 12 (2) of the National Industrial Court Act, 2006 which provides that the NIC is bound by the provisions of the Evidence Act but allow a departure there from in the interest of justice. ADEYINKA & MORETIME Vs MORETIME CO. GAS PLANT LTD. (2010) 18 NLLR (PT. 50) 215 NIC. The defendant also raised OBJECTIONS TO RELIEFS F, G AND H. Learned Defence Counsel submitted that this Court lacks jurisdiction to entertain the claimant’s claim for general civil claim, enforcement of guarantee, libelous and character assassination as contained in reliefs f, g and h respectively. SEC. 7 of the NATIONAL INDUSTRIAL COURT ACT, 2006; SEC. 254 C of the 1999 CONSTITUTION (as amended); SUIT NO. NIC/LA/08/2009 – MR. LAWRENCE IDEMUDIA v. THE LAGOS STATE UNIVERSITY, per Kanyip Okobi, Obaseki-Osaghae, JJ; SUIT NO. NIC/LA/412/2012 – ETOH CHARLES v. SHALOM INVESTMENT & FINANCIAL SERVICES LIMITED & 2 ORS, per Kanyip, J. He submitted that this Honorable Court is a court of limited jurisdiction and cannot entertain a claim for any relief not connected to the primary reliefs as conferred by its enabling statute and that this Court does not in any way confer with power or jurisdiction on the National Industrial Court to entertain the claimant’s aforesaid reliefs as presently constituted. JAMES OKPETA v. NIGERDOCK NIGERIA PLC (2010) 20 NLLR 419; MARITIME WORKERS UNION OF NIGERIA & ORS. v. NIGERIAN LABOUR CONGRESS & ORS, DIGEST OF JUDGEMENTS OF NIC (1978-2006) 422 @ 424; SENIOR STAFF ASSOCIATION OF STATUTORY CORPORATION & GOVERNMENT OWNED COMPANIES, NPA BRANCH & ANOR. v. SENIOR STAFF ASSOCIATION OF STATUTORY CORPORATIONS & GOVERNMENT OWNED COMPANIES & ORS. – DIGEST OF JUDGEMENTS OF NIC (1978-2006) 412 @ 414. The defendants raised the following ISSUES;- 1. Whether having regard to the facts and circumstances of this case, particularly the case put forward by the claimant, the claimant has been able to discharge the burden of proof on him to justify his entitlement to the reliefs before this Honorable Court? 2. Whether the defendant is not entitled to succeed in his counter-claim. ON ISSUE 1 Whether having regard to the facts and circumstances of this case, particularly the case put forward by the claimant, the claimant has been able to discharge the burden of proof on him to justify his entitlement to the reliefs before this Honorable Court? Learned Counsel for the defendants submitted that a plaintiff has the duty to prove his case to the satisfaction of the trial court and has a burden of proof to establish his claim and that burden cannot shift to the defendant unless the claimant has adduced enough evidence that will warrant the defendant to also adduce evidence in rebuttal. OYEDEJI v. OYEDEMI (2008) 6 NWLR (PT. 1084) 485; KONDILINYE v. MBANEFO ODU (1953) 2 WACA 336 @ 337; DALHATU v. ATTORNEY GENERAL, KATSINA STATE (2008) ALL FWLR (PT. 405) 1651 @ 1677-1678; SEC. 136 (1) EVIDENCE ACT, 2011. It is Defence counsel’s submission that an employer can terminate the employment of his employee at any time and for any reason and no reason at all and that the motive which impels the employer to terminate such a contract of employment with his employee is irrelevant. WR & PC LTD. v. ONWO (1999) 12 NWLR (PT. 630) 312, per Tabai, JCA @ P. 327, PARA. G; OSISANYA v. AFRIBANK (NIG.) PLC (2007) 6 NWLR (PT. 1031) 565. He argued that notwithstanding the above, the claimant without pleading necessary facts as to the ill meditation of the defendant in terminating his employment and leading any credible piece in proof of same is seeking the declaration of the Honorable Court that the determination of his employment by the defendant was ill meditated and wrongful. EMOKPAE v. UNIVERSITY OF BENIN (2002) 17 NWLR (PT. 795) 139 @ 151 – 152, PARAS. G-A. To the defendant, the claimant seeking a discretionary power of the Court to make a declaration that will enable the claimant convert a Four Runner Jeep, property of the defendant to that of the claimant, counsel cited the case of EDOZIEN v. EDOZIEN (1998) 13 NWLR (PT. 580) 133 @ 147 – 148, per Rowland, JCA; ODOFIN v. AYOOLA (1984) 11 S.C. 72 @ Pp. 119 – 120, per Oputa, JSC. ON NON-PAYMENT OF MEDICAL ALLOWANCE As regards the claimant’s claim of non-payment of medical allowances, Counsel submitted that parties are bound by the terms of their contract. UBN LTD. v. FAJEBE FOODS LTD. (1998) 6 NWLR (PT. 554) 380 @ 406, per Muktah, JCA. The defendants counsel further argued that the claimant’s claim for #2,749,905.00 has not been specifically proved and urged the Court to refuse the relief. DEDUCTIONS OF SALARY ON EXPIRED STOCKS To the defendants and from the state of evidence adduced by the claimant at the trial of this suit, it is clear in the fact of Exhibits C3, C16, C27 and C28 respectively that the claimant’s salary or incentive was never deducted at any time without justification. DEDUCTION FROM FLOAT AND UNPAID INCENTIVES Regarding the claimants claim for float on unpaid incentive, defendant’s Counsel contended that the claimant has not in any way adduced cogent, convincing and verifiable evidence on these assertions and urged the Court to also refuse this claim of the claimant. With regard to the claimants CLAIMS ON BEHALF OF THIRD PARTIES (SUNDAY ASUNDE & SPARE PART INVOICES) Counsel to the defendant submitted that it is trite that only parties to a contract can sue on the contract and no stranger who is not a party to the contract can sue or be sued on it. OKOEBOR v. EYOBO ENG. SER. LTD. (1991) 4 NWLR (PT. 187) 553 @ 561; A.G. FEDERATION v. A.I.C. LTD (2000) 10 NWLR (PT. 675) 293. ON ISSUE 2 Whether the defendant is not entitled to succeed in his counter-claim. Defence Counsel argued that at the trial of this suit, the defendant led credible evidence both documentary and oral in proof of its assertions that the Four Runner Jeep was an official car given to the claimant at a point when he was promoted to Regional Sales Manager and that it is apparent from there that parties are in agreement as to the status of the said jeep; and that facts admitted need no further proof. OKESUJI v. LAWAL (1986) 2 NWLR (PT. 22) 417; IPINLAIYE II v. OLUKOTUN (1996) 6 NWLR (PT. 453) 148; NASAMU v. THE STATE (1979) 7 SC 153 @ 158-159. The CLAIMANT’S FINAL WRITTEN ADDRESS was dated and filed on 9th December, 2015. Learned Counsel to the claimant I.B Batimehim Esq. submitted that contrary to the defendant’s submission, Exhibits C14 (1-2), C15, C20 C25 are documents that emanated from the defendant while Exhibit C23 was duly received by one of the directors who amended the amount payable before signing it as indicated on the said document. He argued that the onus is on the defendant to prove otherwise and that the defendant cannot turn around after he had the opportunity to object to the admissibility of same but chose otherwise. Furthermore, that most documents admitted as exhibits came from the defendant and neither party objected to their admissibility, hence, written address of a counsel cannot take the place of evidence. TALBA v. TALBA ALL FWLR (PT. 522) 1780 @ 1803, PARAS. C-D. Regarding the CLAIMS ON BEHALF OF THIRD PARTIES (SUNDAY ASUNDE & SPARE PART INVOICES) Learned claimant’s Counsel submitted that is trite only that the parties to a contract can sue and no stranger who is not a party to the contract can sue or be sued on the contract. OKOEBOR v. EYOBO ENG. SERV. LTD. (1991) 4 NWLR (PT. 187) 553 @ 561; A.G. FEDERATION v. A.I.C. LTD (2000) 10 NWLR (PT. 675) 293. The claimants in their final written address raised the following ISSUES;- 1. Whether the claimant has by evidence and the exhibits tendered before this Court has established his claim against the defendant as to entitle him to his claim. 2. Whether the defendant has been able to prove his counter claim against the claimant. ON ISSUE 1 Whether the claimant has by evidence and the exhibits tendered before this Court has established his claim against the defendant as to entitle him to his claim. Claimant’s Counsel contended that contrary to the argument of the defendant that the claimant is not entitled to the declaratory reliefs sought for, paragraph 18 of the Written Statement on Oath of the claimant which is the evidence of the claimant settles the matter. PETER OBI v. INDEPENDENT ELECTORAL COMMISSION & 7 ORS. – CONSTITUTIONAL LAW CLASSICUS VOL. 3 P. 750 @ 784, RATIO 6; THE WEST AFRICAN EXAMINATION COUNCIL v. OSHIONEBO (2006) 3 JNSC 28 @ 46 RATIO B. To the claimant. where an employer acts outside the pale of bona fide i.e. within the pale of mala fide, unfairness, vindictiveness and victimization as is in the instant matter, then the equitable jurisdiction of the court, which enjoins the court to do away with the rigidity of the common law in preference for the rule of equity, then SEC. 15 of the NATIONAL INDUSTRIAL COURT ACT, 2006, must necessarily be called to aide and assuage the hapless employee. ENGINEER AKINYEMI v. NIGERIA WIRE & CABLE – SUIT NO. NICN/IB/02/2013 delivered on 30th April, 2014. He submitted that the claimant tendered the condition of service which is Clause 4.2.3.0 of Exhibit C2 and that facts admitted need no further proof. ALIU ADAMS & ORS. Vs. UNION BANK NIG. PLC – NICN/JOS/23/2012 (Unreported) delivered on 2nd October, 2013; DORNIER AVIATIONS NIG. LTD. v. OLUWADARE (2007) 7 NWLR (PT. 1033) 336. Learned Counsel to the claimant pointed out that there were various exhibits tendered in favour of the claimant and that the rule of thumb in evaluating the claimant’s evidence in this case is as follows, per Pats Acholonu, JSC in OBASI BROTHERS MERCHANT COMPANY LTD. v. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) LPELR 2153 (SC) (P.9, PARAS. A-B):- “the law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claimant that the court should on balance decide in his favour”. ON ISSUE 2 Whether the defendant has been able to prove his counter claim against the claimant. Claimant’s Counsel submitted that in line with Sec. 91 of the Evidence Act, and according to paragraph 40 of the Complaint thereof, notice has been duly given to the defendant to produce and as such he cannot turn around to complain against all the Exhibits tendered especially Exhibits C38, 41, 23, 17, 19, 20, 14 (1-2), 46 (3) and every other documents to mention a few. He submitted that a claimant has the duty to prove his case to the satisfaction of the trial court which the claimant has done in this case via the claimant’s written statement on oath, various documents jointly agreed to be admitted as exhibits before the court. OYEDEJI v. OYE DEMI (2008) 6 NWLR (PT. 1084) 485; KODINLINYE v. MBANEFO ODU (1935) 2 WACA 336 @ 337; DALHATU v. ATTORNEY GENERAL, KATSINA STATE (2008) ALL FWLR (PT. 405) 1651 @ 1677 – 1678; SEC. 136 (1) of the EVIDENCE ACT, 2011. Learned claimants Counsel posed the question: “how could the claimant be held responsible for the indebtedness of the defendant’s official distributor more so that the claimant never stood as guarantor for any of the official distributors of the defendant? And that there is no internal or external auditor’s report indicting the claimant. He submitted that these claims are just an afterthought hence all the counter claim is bound to fail. KODINLINYE v. MBANEFO ODU (supra); KHALEED BARAKAT CHAMI v. UNITED BANK FOR AFRICA PLC (2010) ALL FWLR (PT. 1287) @ 1307 @ 1308, PARAS. D-A. On the 1st of February 2013 parties adopted their respective addresses and the matter was slated for judgment. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having prudently reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement, specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the parties are entitled to the reliefs claimed in this suit. Before I delve into the merit of the claimants claim and the defendants counterclaim it is necessary to address some issues raised by the parties in the course of this trial. The defendants during trial raised an objection to some of the claimant’s documents particularly Exhibits C14, C15 (1), C20, C23, C25, C30 and C37 on the basis that the documents were computer generated and required to be tendered in line with the provision of Section 84(2) which provides that computer generated evidence to be tender in court needs to be accompanied with a certificate of compliance indicating the computer from where the documents was produced, had the said document been used regularly, during the period during that such information as was contained in the document was regularly supplied to that computer, that the computer was operating properly and in the event of any malfunction it would not have affected the production of the document or its accuracy and that the information contained in the document was such that is ordinarily supplied to that computer in the course of business. The claimant counter argued that all the documents complained of, originated from the defendants and that they the claimant had given the defendants notice to produce these document and as they had failed to do so, the claimant was within his rights to rely on the copies he had, A similar argument was put forward before in this court in the case of SUIT NO. NICN/LA/32/2012ESTHER OGBODU VS. GLOBAL FLEET OIL & GAS LTD & ANOR delivered 5th December 2014. Where the court held “Now, it must be noted that the defendants are not contesting the authenticity of Exhibits C20 and C27, only that they are computer printouts and were not tendered in accordance with the Evidence Act. The crux of the defendants’ objection is the manner of tendering Exhibits C20 and C27, not its evidential value (the informality enjoined on this Court by section 12 of the NIC Act 2006 and as explained in KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED does not permit the approach of the defendants). The interest of justice does not warrant this kind of technicality that the defendants are introducing here. Accordingly, it is my finding and holding that in the interest of justice, the relevant provisions of the Evidence Act cited by the defendants shall be departed from for the purposes of this judgment. The argument of the defendants in that regard accordingly fails and is hereby discountenanced. Exhibits C20 and C27 shall accordingly remain admitted; the only issue left is their evidential value as far as this suit is concerned. The defendants made much of their submission regarding the admissibility of Exhibits C20 and C27 especially in paragraph 3.9 of their reply on points of law to the extent that they submitted that the claimant failed to address the case of KUBOR V. DICKSON [2013] 4 NWLR (PT. 1345) 534, which is most applicable to the instant case as the case has similar facts to the instant case and was decided on the same provisions of the Evidence Act in issue here. That in KUBOR V. DICKSON the Supreme Court expunged documents tendered without the provisions of section 84 being complied with despite no objections by the respondents during trial. In stating that KUBOR V. DICKSON has similar facts with the instant case, the defendants did not inform this Court whether section 12 of the NIC Act 2006 was in issue in that case. At least in paragraph 3.10 of their reply on points of law, the defendants conceded that where there is a strong case for departing from the Evidence Act in the interest of justice, this Court may do just that. I accordingly find and hold that such a strong case does exist in the instant case. As such and like I indicated earlier I shall in the interest of justice depart from the strict requirements of sections 84 and 90 of the Evidence Act as regards the admissibility of Exhibits C20 and C27. I must point out similar arguments were made in LUCKY IHANZA & ANOR V. GLOBAL FLEET OIL & GAS LIMITED UNREPORTED SUIT NO. NIC/LA/217/2011, the judgment of which was delivered on March 27, 2013, MR. IROKO A. LATEEF V. GLOBAL FLEET OIL & GAS LTD UNREPORTED SUIT NO. NIC/LA/222/2011, the judgment of which was delivered on May 13, 2013 and MR. OLUBAYO ADEYEMI V. GLOBAL FLEET LTD [2013] 35 NLLR (PT. 105) 384 regarding the admissibility of computer generated evidence and this Court rejected them”. What that means is that the informality and structure off this court being the National Industrial Court where is not suited to the technicality enshrined in Section 84(2) of the Evidence Act. The argument of the defendants is that Exhibits C14, C15 (1), C20, C23, C25, C30 and C37 are inadmissible given sections 84(2) of the Evidence Act 2011 and so should be discountenanced by the Court. Now by section 12(2) (a) and (b) of the National Industrial Court (NIC) Act 2006, this Court (a) may regulate its procedure and proceedings as it thinks fit; and (b) shall be bound by the Evidence Act but may depart from it in the interest of justice. In KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED [2012] 27 NLLR (PT. 78) 374 AT 454, this Court clarified the informality and flexibility expected of it when adjudicating; and citing the instructive and incisive holding of the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, explained that the task of this Court is to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. In addition the defendants were perfunctorily given notice to produce these exhibit and in the circumstance the defendants cannot refuse to produce the said documents and turn around and demand their expulsion based purely on the technical application of the law. I shall however decide the probative value to be attached to these and all the exhibits tendered while considering the relief to which the exhibit relates accordingly. I shall now look at the claimants reliefs;- a) A declaration that the termination of the claimant’s appointment by the defendant is unlawful, null and void, ill meditated. b) A declaration that the claimant is not indebted to the defendant in the sum of #1,244,831.00K (One Million Two Hundred Thousand, Eight Hundred and Thirty One naira). c) A declaration that the Four Runner Jeep HX 655 AAA lawfully belongs to the claimant. d) A sum of #6,384,000.00K being service gratuity payable by the defendant to the claimant. (Six Million Three Hundred and Eighty Four Thousand). e) A sum of #2,749,905.00K being medical allowance, deductions from plaintiff salary on expired stocks sent to Lagos Office, deduction from float from July, 2009 to February, 2010, unpaid incentive from November, 2009 to February, 2010, salary deductions, outstanding salary, salary in lieu of notice, February and March salaries, 2010 and salary in lieu of accumulated annual leave. f) Add relief g) Add relief h) Add relief In relief a) the claimant is seeking a declaration that the termination of his appointment by the defendant is unlawful, null and void, ill meditated. In law a servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. OKUMU OIL PALM CO. LTD VS. ISERBIENRHIEN [2001] 6 NWLR (PT. 710) P. 660. IDONIBOYE-OBU VS NNPC [2003] 2 NWLR (Pt. 805) P. 589.In the case of OKOEBOR VS. POLICE COUNCIL [2003] 5 SCNJ 52 it was held that “When an employee complains that his employment as been unlawfully terminated, or that he was lawfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer” Also in ANAJA Vs. UBA PLC [2011]15 (Pt.1270) 377, the apex court held that an employee in a master and servant relationship has to plead his condition of service and the way and manner the terms were breached by his employer. The claimant in establishing their employment relationship tendered Exhibit C7 the letter of appointment reproduced below:- May 28, 2005 Mr. Adenmola Olumuyiwa Bodnnrin 9 Coast Ufeli Street Ikate, Surulere Lagos Dear Mr. Bodunrin, OFFER OF EMPLOYMENT We refer to your application for employment and series of interview with the above company, and are pleased to offer you employment as Regional Sales Manager- west (Sales/Marketing Department) at our Ibandan depot with effect from May, 28, 2005. The salary and allowances attached to the position are as follows: =N= Annual Basic salary - 267,000.00 Annual Housing Allowance - 156,000.00 Annual transport allowance - 126,000.00 Annual meal subsidy - 51,600.00 TOTAL - 600,000.00 Furthermore you are entitled to a free medical scheme and all other conditions of service applicable to your position in the company. You are undergo six months period of probation after which your appointment will be confirmed subject to satisfactory performance and conduct. The company reserves the right to extend your probationary period to not more than three (3) months if your performance is found to be unsatisfactory. During probation either party could terminate the appointment by giving one week notice or payment in lieu of notice. After confirmation the notice required is one month or a month salary in lieu of notice. We operate a mandatory forty – five (45) hours per week between 8.00 and 5.00pm (Monday – Friday) including a break period of one hour. And on Saturdays (timing to be determined by management) however, you may be required to operate irregular schedules as exigencies of your appointment may dictate. Details of your Job description shall be discussed with you upon starting duties his appointment is subject to your passing a medical examination of fitness conducted by our a trainer hospital. Please note that the offer is provisional/temporary for two months until all our guarantors and characters reference are duly completed. The employee shall not work for or with any milk producing marketing company in related line of business as that of the employer for a period of two (2) years following the employee’s disengagement from the employer. Furthermore, the employee shall not work for any other organization while in the service (Rofico Limited) Be informed that the company reserves the right to transfer you to any of its operations in any art of the country. Also you are to ensure strict compliance with the rules and regulations of the company, as well as the provisions of the staff hand-book which shall be issued to you upon our starting duties. Lease indicate your acceptance of the conditions of service by signing the duplicate copies of the appointment letter. We welcome you to Rofico family and hereby count on your co-operation, dedication and loyalty. Congratulations Yours faithfully, For Rofico Limited ------------------ ----------------- AJA EZZEDDINE EDDY EAYAD Sales/Marketing Director Sales/Marketing Director MD FC PF ADEMOLA BODUNRIN hereby accept the above stated conditions of service Full Name ADEMOLA OLUMUYIWA BODUNRIN SIGNATURE DATED 8/6/05 and Exhibit C2-C2(29) the Condition of Service. The law is that “where the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract. ” WESTERN DEV.CORP.Vs. ABIMBOLA [1966]4 NNSCC 172. NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC. [1995]6NWLR Pt.400 Pg184, COLLEGE OF MEDICINE OF UNILAG Vs. ADEGBITE [1973]5SC149 INTERNATIONAL DRILING CO. Vs. AJILILA [1976]2SC115 Also in CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC this court held that in determining the rights and duties of parties to an employment contract, the Court will consider the terms of contract of service between an employer and an employee. These terms of agreement re binding on both parties. FMC IDO-EKITI v. OLAJIDE (2011) 11 (PT. 1258) 256 referred to.] A careful perusal of the law and the evidence, particularly Exhibit C7(1) lends the court to hold that the employment relationship between the claimant and the defendant was one of employer and employee commonly referred to as a master and servant relationship. The law is that an employee who complains of wrongful termination of his employment must place before the Court the terms of the contract of employment and then prove how the terms were breached by the employer. See KATTO V. CBN [1999] 6 NWLR (PT. 607) 390 SC. It is to satisfy these requirements that the claimant tendered, among other documents, Exhibit. It is, however, also the law that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See ANGEL SHIPPING & DYEING LTD V. AJAH [2000] 13 NWLR (PT. 685) 551 CA Now the claimant is asking for a legal pronouncement of this court as to whether or not his termination of appointment by the defendant is unlawful, null and void, ill meditated. Now the learned author Sasegbon in his book SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. in PARAGRAPH 233- Dealing with the DETERMINATION OF MASTER AND SERVANT RELATIONSHIP. States as follows: “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. The term unlawful, null and void only apply to employment governed by statute as these appointments are governed by law and hence can be unlawful but an employment created by the agreement of parties cannot be lawful or unlawful, illegal or legal neither can it be found null and void, this aspect of the claimants claim cannot be granted. I find and hold this leaves the issue of ill motivated By Exhibit D2 Letter of termination produced below March 12, 2010 Mr. Adenmola Olumuyiwa Bodnnrin 9 Coast Ufeli Street Ikate, Surulere Lagos Dear Mr. Bodunrin Re: TERMINATION OF APPOINTMENT Owing to your inability to effectively supervise the activities of staff under you; a situation that has lead to an outstanding doubtful debts of N1,244,831.00 (one million, two hundred and forty-four thousand, eight hundred ant thirty-one naira only), I write to inform you that your service is no longer be required with effect from Friday March, 12th 2010. You are to see the Company’s Accountant to present an acceptable and clear settlement programme to these debts within 30-days from today. Failure on your part to settle these debts within the stipulated period of 30-days would lead to adoption of all legal and necessary measures to recoup the debts from you. In addition, you are to hand-over all company properties in your possession, particularly the official car and your staff identity card to the Head of Human Resources Department to facilitate early processing of your terminal benefits. Yours faithfully, For: Rofico Limited EKEBAFE, ‘biodun Personnel Manager The defendants terminated the claimant’s appointment, the claimants contention is that the action of the defendant was unlawful, null and void and ill motivate the earlier three having be declared not grantable in the circumstances of this case. The law however is that “he who asserts must prove. It is the claimant who is asserting the existence of the contract of employment, (and in this case improper termination) that has the burden to prove same and not the defendant. GEORGE v. FIRST BANK OF NIGERIA PLC (2014) 41 NLLR (PT. 126) 264 NIC @ 271 Exhibit D2 stated that “due to your inability to….. Both parties went to town with documents and pleadings to controvert or deny responsibility for the loss stated above, on the part of the claimant and on the part of the defendant establish that they incurred losses. Yet exhibit D2 clearly stated that it was the inability of the claimant to supervise his subordinates that lead the defendants to issue exhibit D2. The claimant in refuting this rationale would be expected to tender in court evidence of the steps he did take to supervise this subordinate in refuting the basis of Exhibit D2. This has not been done in all the pleadings and copiuos document as to expired goods, closing of depots, reports of staff all go to no issues as none of these documents indicate the supervisory role played by the claimant in contravention to the situation created in paragraph 1 of Exhibit D2. I shall address this issue as concerns the defendant when treating the counter claim. Relief a being a declaratory relief in law the claimant is required to prove entitlement to the legal pronouncement on the strength of the evidence in support of his own case and cannot rely on the weakness of the defendants case to found a declaratory relief. See the case of DR. OLADIPO MAJA Vs. MR. CASH SAMOURIS [2002] 2 SCM 109. I find that the claimant has not proven to this court that the action of the defendants was unwarranted so as to enable this court consider whether the claimants termination was wrongful, I am aware that the claimant himself did not even ask for the only relief to which by law he is entitled in the circumstance. In U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. This court held that generally, where a contract of employment is properly terminated, intention and motive become irrelevant. [TAIWO v. KINGSWAY STORES (1950) 19 NLR 123; AJAYI v. TEXACO (NIG.) LTD. (1987) 3 NWLR (PT. 62) 577; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. I find that the claimant has not shown the court how the termination of his employment is ill motivated particularly as motive is irrelevant in these circumstance. I am also aware that the law is settled that in a master/servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. See the case of AZENABOR Vs. BAYERO UNIVERISTY, KANO (2009) 17 NWLR (PT. 1169) 96 CA. In ODEH Vs. ASABA TEXTILE MILL PLC. (2004) ALL FWLR (PT. 242) 2163, it was held that “a master can terminate the employment of his servant/employee at any time and for any reason or for no reason at all, provided the termination is in accordance with the terms of their contract. In the instant case, the retirement or termination being in compliance with terms of contract of employment of the Appellant cannot make a case for wrongful termination of his employment”. See also IBAMA Vs. SHELL PET. DEV. CO. (NIG.) LTD. (1998) 3 NWLR (PT. 542) 493; NITEL PLC. Vs. OCHOLI (2001) FWLR (PT. 74) 254. From the foregoing I find that the claimant has not established the essential ingredient for the grant of a declaration that his employment was wrongful or unlawful, null and viod or ill motivated. Relief (a) therefore fails and is dismissed. Relief (b) A declaration that the claimant is not indebted to the defendant in the sum of #1,244,831.00K (One Million Two Hundred Thousand, Eight Hundred and Thirty One naira). The claimant is asking the court to make a legal pronouncement that he is legally entitled not to pay the defendant the sum of N1,244,831.00K (One Million Two Hundred Thousand, Eight Hundred and Thirty One naira). Now in law the claimant can only get what he claims if, both on the pleadings and the evidence, he has successfully made out or proved his claim. See BABATUNDE AJAYI Vs. TEXACO NIG. LTD & 2ORS [1987] 9-11 SC 1 In the instant case nowhere in the claimants leadings did he allude to this head of claim, none of the exhibits mentioned this sum and the claimant led no evidence in support of this claim. To what does it relate, the defendants are not claiming this very amount, the claimant tendered copious document 50 in all but led no evidence to link any of these documents to this head of claim. In DR. T. E.A. SALUBI Vs. MRS BENEDICTA E. NWARIAKU & ORS [2003] 4 SCM 127 the Supreme Court held that where a parties makes averments but such averments do not relate to any relief sought in the case the court will not grant the relief….” In the instant case there are no averments relating to this relief, the court is not to speculate on what the claimant’s intention was in drafting this relief but looking through the claimants pleadings I cannot find any specific pleading with either the factual situation giving rise to their relief nor the law giving rise to the substantive claim. This relief (b) I find has been abandoned by the claimant and is therefore dismissed. Relief (c) is for a declaration that the Four Runner Jeep HX 655 AAA lawfully belongs to the claimant. Now the case of the claimant is that upon his promotion to Divisional Sales Manager he was given, by the defendant a Jeep Forerunner HX 655 AAA and he had applied and put in a bid for the said jeep. The claimant further tendered Exhibit C 46(3) as proof that he had bid for the jeep offering N300, 000.00 the claimant continued that the offer was accepted, his bid approved and the money was to be deducted from the claimants salary. The defendant refute the bid and offer and have counterclaimed for the value of the Jeep. I shall address the counterclaim separately later on in this judgement. Now looking at Exhibit 46(3) From : Ademola Bodunrin To: Sales & Marketing Controller Subject: BID FOR THE 4RUNNER JEEP (HX65 AAA) Dated: 18/11/2008 Sir, On assumption of office at Rofico Limited as the Regional Sales Manager (West) I met with Mr. Eddy and the Vice Chairman and I was made to understand that if I was able to turn the situation of West (problematic area then) around that the management was ready to assist and support me in whatever way deem fit. I took this as a challenge and I was able to increase the sales of Ibadan 4m (Abeokuta Inclusive), Ilorin 2m then to between 35m to 45m and 16m respectively. Meanwhile, when I started there was no official vehicle given to me I made use of my personal car. Based on my achievement, I was promoted to the position of Division Sales Manager to cover wider areas, Lagos, West and East (See the attached). Presently I have no personal car hence, I am appealing to the management to allow me bid for the 4rumer Jeep (H x 65 AAA) which I am presently using as a means of compensation. I am ready to by it at rate of N300,000.00 (Three hundred thousand naira only). If my request is granted, it will send signal to my colleagues and subordinates in the system that the management appreciates hard work and that there is reward for it. It will also encourage me to put more effort in making sure that the company get out of it present predicament. I had done it before and I am ready to do it again. God’s willing. Thanks for your anticipated approval. ADEMOLA BODUNRIN (DSM) Cc: Mr. P.V. T Sundaram C. E. O Mr. Raja Executive Director Mr. Eddy Fayad Executive Director This is a memo addressed to the Sales & Marketing Controller. There is no indication that this letter was received by the defendants See the case of NLEWEDIM v. UDUMA (1995) 6 NWLR (PT. 402) 383 @ 394, PARA. B. where it was held that in law, proof of receipt/service of document is established by: a. Dispatch indicating the receipt; or b. Evidence of dispatch by registered post; or c. Evidence of witnesses, credible enough, that the person was served with the document in question. The claimant has not presented any proof that this document was properly served on the defendants, as rightly observed by the defendant counsel, the said exhibit has on the bottom right hand corner a minute which reads “Mr. Raja, kindly release the jeep to Boderin as earlier called by the company”. The claimant has argued that his bid was approved and that the deductions were to be made from his salary. On being asked during cross examination whether the sum he bid was in fact deducted from his salary he was unable to answer categorically. The claimant did not present any other evidence in support of the said approval, the minute the claimant is relied. He merely referred to another person (Mr. Raja?)who was not called as a witness directing that this person that he should release the keys to the claimant as called by the company but no evidence was tendered as to what was called by the company. And more importantly the claimant has not put forward any evidence that the N300, 000.00 was actually accepted or received through installmental deductions from his salary, by the defendants so as to support his claim of ownership neither is there any evidence before the court that he had in fact paid the N300,00000 to the defendant from his salary for the Jeep. And with reference to paragraphs 10, 11 and 12 of the Statement of Fact establishing the Cause of action reproduced hereunder:- (10) The claimant further states that when his personal car broke down and could no longer be used for the defendant’s job coupled with his new status as Division sales Manager, the defendant then provided the claimant with a four Runner Jeep with Registration Number HX 65 AAA. (11) The claimant avers that on the 18th November, 2008, the claimant wrote the defendant through the Sales and Marketing Controller taking the company to task on the promise made to him on appointment by bidding for the 4-runner jeep and same was approved released to the claimant. (The letter to that effect shall be relied upon at the trial) (12) The claimant states that the defendant acting through the Sales and Marketing Controller, Mr. EDDY FAYAD who doubles as an Executive Director and a member of the Board of Directors acceded to the demand and directed that the jeep be given to the claimant; same directive was copied to all the Directors of the defendant. The directive as contained on the correspondence pleaded in paragraph11 shall also be relied upon at the trial. In line “same directive was copied to all the Director of the defendant” presupposes that there is or was a directive that the said vehicle should be given to the claimant on payment of the N3000, 000.00. This if produced would have gone a long way to substantiate the claimants contention but this “directive to all the other Directors” has not been brought before the court. Now the claimant in averments 6 and 7:- 6. That at the time of my employment I was not given an official car by the defendant despite my area of operation covering Abeokuta, Ibadan and Ilorin, that I was using my own personal car to the knowledge and consent of the defendant. 7. That upon the promise made to me by the defendant in paragraph 5 above, I was able to raise the sales of the defendant in the area under my jurisdiction as follows:- a. I increased the sales in Ibadan from N4,000.000.00k per month to between N35,000.000.00k and N45,000.000.00k per month. b. I increases the sales in Ilorin from N2,000,000.00k per month to between N16,000,000 per month respectively. Puts forward a scenario that the Jeep HX was to be part of the promise but the claimant, however in averment 10 states that the vehicle was provided to the claimant as an official car. Even the argument as to biding N300, 000.00 negates that the vehicle was supposed to be the ominous promised gift referred to in averment 7. In all I find I am not satisfied that the claimant is entitled to the award of this relief in respect to the Jeep, this vehicle I find was intended to function as an official jeep and as such barring any evidence that the claimant actually transmitted or exchanged any consideration for the said jeep, this vehicle I find and hold, remains the property of the defendants. Relief (d) is for an order that the defendants pay the sum of #6,384,000.00K (Six Million Three Hundred and Eighty Four Thousand) to the claimant as his due service gratuity. The court has determined that the conditions governing the claimants employment are the letter of appointment Exhibit C6 and the Conditions of Service Exhibit C2. Now exhibit C2 in Part Four at the end of Paragraph 4.21.1.with the side heading “Employees whose services are terminated will be entitled to:” Salary in lieu of notice Salary in lieu of accumulated or earned leave Payment in lieu of overtime works Service gratuity if eligible The position of case law is that “in a contract of employment, where the terms provided for one month’s salary in lieu of notice thereof, the employee who is wrongly terminated is entitled to a month’s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end”. IFETA v. S.P.D.C. (NIG.) LTD. (2006) 8 NWLR (PT. 983) 585 SC. And paragraph 4.23.0 provides under the side heading “End of service benefit (gratuity) scheme” that; Payment of gratuity shall be in accordance with existing national agreement. By the authority of SIDMACH TECHNOLOGIES NIGERIA LTD v. ONUORAH (2014) 46 NLLR (PT. 148). Where it was held that in a written contract of service, the court will not look into any matter outside the terms stipulated and agreed therein between the parties to the contract in determining the respective rights and obligations of the parties. IBAMA v. SPDC (2005) 17 NWLR (PT. 954) 364 @ 379; CADBURY NIG. PLC v. OLUBUNMI O.ONI (2012) LPELR 19821 referred to.] And bearing in mind that in law it is the party that avers who has the burden of proving see GEORGE v. FIRST BANK OF NIGERIA PLC. Supra. The conditions of service Exhibit C2 clearly provides for service gratuity but the modalities as to how an employee is to benefit therefrom or the condition and percentages by which same is calculated is not before the court. The claimant has not told the court how he arrived at 6,384,000.00K as his entitlement under this head. None of the claimants pleadings established this head of claim, the claimant never pleaded he was entitled to that in any of Exhibit C1 or Exhibit C X the claimant merely listed Service gratuity having worked for over 5 years as 6,384,000.00K. Now the claimants salary has been stated in Exhibit C6 as N150, 000.00 per month which translates to N18000, 000.00 per year. Now if we divide 6,384,000.00K by 5 it comes to 1, 290 500.00 which is slightly over 70% of the claimant annual salary, does the condition of service in its national agreement provide that the defendants employees on completion of their 5 year of work shall be entitled to 70% of the annual salary for every year they had worked. The claimant have not put the national agreement before the court to enable it reach this conclusion and in law the court cannot speculate on what is not before it. See the case of AGBOGUNLERI Vs. DEPO (2008) 2 MJSC @ 87, PARAS. E-G. This relief not being properly substantiated before this court therefore fails. Relief (e) is for an order that the claimant is entitled to the sum of #2,749,905.00K being medical allowance, deductions from plaintiff salary on expired stocks sent to Lagos Office, deduction from float from July, 2009 to February, 2010, unpaid incentive from November, 2009 to February, 2010, salary deductions, outstanding salary, salary in lieu of notice, February and March salaries, 2010 and salary in lieu of accumulated annual leave. The claimant in his statement of fact, at the end of paragraph 40 in a tabulation of his claims has as the first entry under the headings of Correspondence, Purpose and Amount the following “since May, 2005- Unpaid Medical Allowance-N350, 000.00 respectively. With regard to the genre known as medical allowance and in a claim for medical allowance;- an allowance has been described as a share or portion allotted or granted See the online version of the Merriam Webster Dictionary (m.w.com) @ 2016 Merriam Webster, Incorporated. Which in this context would be a portion or share of the claimant emolument which is granted to him for his medical requirement. Now the claimant in averment 14 of Exhibit C1 averred that “ ….the defendant had refused and rejected to pay his medical allowances agreed upon between me and the defendant……..”. the claimant has not shown the court the agreement between the parties where it is stated that the claimant was entitled to an allowance or medical allowance in any circumstance. Neither Exhibit C2 not Exhibit C7 mention a medical allowance. The claimant continues in averment 14 that “…especially when I had a gunshot by armed robbers in 2007 in the course of carrying out my official run to the sum of N350, 000.00 (Three Hundred and Fifty Thousand Naira) I find that the there is no express provision for a medical allowance in the documents governing the claimants employment with the defendants. The claimant frontloaded various document from medical institutions which were tendered Exhibit C40-C40(4) being the following receipt and medical documents 1. Intercontinental Bank Deposit Slip from University College Hospital Ibadan X-ray receipt of 4th February 2008 for …… N1000.00 2. Vision House Clinic Registration/Consultation receipt of 9TH January 2008 …… N3500.00 3. Vision House Clinic receipt of 9th January 2008 for Central Field Examination for …… N1000.00 4. Receipt from University College of Medicine Ibadan dated 4th February 2008 for drugs for the sum of …… N50.00. 5. Receipt from Eye Foundation Hospital dated 22nd March 2006 Out Patient Department receipt for Consultation for …… N5000.00 6. Eye Foundation Charge/Bill dated 22nd March 2008 for Injection and Minor Surgery …… N1650.00 7. Receipt from Eye Foundation Hospital dated 22nd March 2006 Out Patient Department receipt for Fundus Retina B/Scam … N10, 000. (indicating a balance of N20, 000.00) 8. Two Tees Diagnostic X Ray Centre Request for Radiological Investigation Form dated 9th January 2008. 9. Two Tees Diagnostic X Ray Report Slip dated 9th January 2008 With the conclusion of “Foreign Body in the eye (gun pellet) The total sum expended from and evidenced by these exhibits is N22, 200.00 (Twenty Two Thousand Two Hundred Naira Only). In Exhibit C2 paragraph 4.12.0 provides that; The company shall provide free medical treatment for all its employees at the designated company clinics. Except in the case of emergencies, attendance at the clinic or hospital must first be authorized by the head of department or head of human resource department. In the case of emergency when an employee is out of his normal station of work, medical treatment can be received from a government or voluntary agency hospital. Such cases must be reported to the management as soon as possible afterwards, but not later than forty eight 48 hours. The provision goes on to exclude maternity treatment, spectacles, denture or artificial limbs, excludes the free medical treatment of employees families and requires that the medical officer giving treatment if required shall give a full report of the treatment given. The claimant has not shown the court where and how he is entitled to a medical allowance specifically so named and by the exhibits provided has not shown the court how he came about the claim of N350, 000.00. The condition of service provides for medical treatment free at specified institutions and in the event that the employee requires emergency treatment he is expected to inform the management within 48 hours. Nowhere in Exhibit 40-Exhibit 40(4) has the claimant presented any document indication that the informed the defendant of his injury, the receipts themselves span from 9th January 2008 to 22nd March 2008 yet the court has not been presented with any documents in verification of this claim, a claim of this type would require additional document to wit a police incident report as well as a detailed medical report, detailing the injury the nature of treatment given / requires as well as the prognosis for the future with a letter of claim written to the defendants to reimburse his expenses incurred in obtaining treatment to the tune of N350, 000.00.None of these have been brought to the court in support of this claim. I also find that the reference in paragraph 14 of the gunshot that ran to N350, 000.00, this claim has not been substantiated the receipts of expenditure put forward by the claimant do not tally or add up to N350, 000.00. The claimant has hence failed to prove the claim for N350, 000.00, I find that this part of this relief cannot succeed and therefore fails. The claimant also claimed for deductions from plaintiff salary on expired stocks sent to Lagos Office, in support of this claim the claimant averred in averment 15 of Exhibit C1 that “the defendant was in the habit of deducting from my salary the cost of expired stock which were transferred by to the Lagos Office of the defendant”. The claimant in the Paragraph 40 tabulation has as the second entry under the headings of Correspondence, Purpose and Amount the following “Ref Letter memo dated 12/11/2007”, “Deductions from plaintiff salary on expired stock” and “N79, 155.00” respectively. Now Exhibit C16 which refers to expired stock deduction clearly refers to Exhibit C5 being a document wherein the defendants gave their employees the directive that goods nearing their expiration date should be disposed of by trade offers and went on to list the various numbers of items available in the defendants depots and their expiry dates ranging from November 2006 to December 2006 and the corresponding promotional trade offer which involved giving a way one item of the said stock with a specified number of purchases. This Exhibit C28 was dated 17th July 2006 and states therein that the Liquidation of near expired goods would be effective on Monday 17th July 2007, the exhibits ends by stating that “It is totally your responsibility should any quantity would expire in any of the above mentioned depots”. The claimant was unable in open court to explain the discrepancy as to the date however a perusal of the 2006 calendar reveals that the 17th July in 2006 was in fact a Monday whereas the 17th July in 2007 was a Tuesday, I find that Exhibit C28 was intended to take effect from Monday 17th July 2006. Now in Exhibit C16 it is clearly stated that sum of the expired goods worth N17, 155.00 was to be deducted from the claimant’s incentive. Notwithstanding the question of the propriety of this claim being one arising from a transaction which took place in November 2006 over six years before this case was instituted considering the limitation law of Oyo State, the claimant has not presented any bank statement or series of payment slips to establish that his salary was ever deducted from to enable the court determine this part of the relief. In the circumstance this part of the relief fails for lack of substantiation i.e. evidence in support of facts. As regards the claim for deduction from float from July, 2009 to February, 2010. The claimant had pleaded in averment 17 of Exhibit C1 that “in the operation of the defendants business certain money is paid to the division by the defendant for the operational costs and this is referred to as float.” See also Exhibit C4; Monthly Float on Stationery 7th February 2007, Exhibit C14(2); June Float, Exhibit C22; Non Payment of Working Float (Oluwasoyin Wale) dated 5th June 2007, Exhibit C23;Recommended Working float dated 10th April 2007. From the explanation of the claimant and the exhibits listed above I understand that through negotiation the claimant arrived at specific sums of money which the defendant was to pay its staff monthly to enable then run the offices and meet incidental expenses. That being the case I find that these sum of money akin to working grants of office impress are not sum claimable in arrears being sums payable in advance to the designated staff for set purposes, in the even that these sums are not made available and the period to which they ought to apply had lapsed and where the designated officer had made some expense in line with the purpose of the float, such an officer is more likely to succeed with a claim for a refund of out of pocket expenses for sums expended in the absence of the monthly float together with a receipt evidencing the payment made duly approved for refund. As such I find that this court cannot entertain a claim for unpaid float in the ilk of which the claimant is thus presenting. Now the claimant is also asking for unpaid incentive from November, 2009 to February, 2010. An incentive is defined as something that motivates, rouses or encourages, it is further described as a bonus or reward often monetary to work harder See the English Oxford Online Dictionary @ 2015 Mobile App for android. The claimant tendered exhibit C15(1) which is a Memo from Sales Marketing Director to Regional Sales attaching a tabulation of the individual set targets against actual achievements decimated and the incentives to be paid to each of the 33 staff for the month of January 2006. The Memo itself reads;- “You are kindly requested to copy and show all your staff this list of January incentives breakdown and let them appreciate the amount received by Maiduguri depot due to their performance. We wish you the same success Good Luck and Happy selling Signed Eddy Fayad.” This Memo was dated 18th February 2006. I find that neither Exhibit C2 nor Exhibit C6 make any contractual provision for incentive From the foregoing I find that an incentive in the context of this case is a bonus payment made by the defendant to their employee based on their performance in the month that is a payment made by an employer to the employee to motivate the employee in appreciation of the work done and encourage him to work harder and in the instant case such an incentive is dependent on the perception of the employer, depended and calculated off the degree to which the employee or in this case the claimant met, achieved or surpassed his target I find that in this case the incentive pay is likened to an ex gratia payment such as was held in the case of PAN V. OJE [1997] 11 NWLR (PT. 530) 625 CA, where the Court of Appeal held that ex-gratia is a term applied to anything accorded as a favour, as distinguished from that which may be demanded ex-debito, as a matter of right. It connotes something given out of grace, favour, indulgence or gratuitous. See also LATEEF ALAO ADESIGBIN AND ANOR V. NIGERIA BREWERIES PLC UNREPORTED SUIT NO. NIC/8/2008 the judgement of which was delivered on July 15, 2009. ADEMULEGUN ADEREMI VS. WEMA BANK PLC. UNREPORTED SUIT NO. NIC/LA/10/2011 delivered on July 16, 2014. From the foregoing I find and hold that this calm fails and cannot succeed. The claimant also claimed in this omnibus relief for salary deductions, outstanding salary; February and March salaries, 2010, salary in lieu of notice and salary in lieu of accumulated annual leave. With regard to salary deduction the claims pleaded Exhibit C12 and Exhibit C13 reproduced below. Dated 26/11/2007 From: Admin manager To: DSMs/ASCs Ibadan & Kaduna Subject: SALARY DEDUCTION Following your non response to our memo dated 29/10/2007 sent to you. The management has decided to deduct the sum of N246,710 AND N396,100 from your monthly salaries with effect from the end of November 2007 Thanks Nosike Michael Cc: CEO ED- Raja ED-Eddy CFO FC AC Dated 26/10/2007 From: Admin manager To: DSMs Ibadan & Kaduna Subject: MISAPPROPRIATION OF COMPANY’S FUND Background: Recall that you were called by this office on the 27th August 2007 to retrieve all company’s property and reconcile the accounts of some sales staff and Regional sales Manager under you and report their clearance in three days time. Rather than complying with this directive, this office received resignation of the RSMs and two cases of misappropriation of fund by the affected staff Findings:- 1. Non compliance with a particular directive. 2. Mismanagement of confidential information which resulted in the above cases. 3. Laxity in carrying out your responsibilities. Decision:- In view of the above the management has decided that the DSMs, ASCs in whose area the fund misappropriation is reported should make effort to recover the amount on or before two weeks from this date or the said amount be deducted from their salaries. You are further advised to be in control of the staff under you to avoid future occurrences. Cc: CEO ED- Raja ED-Eddy ASC-Ibadan ASC-Kaduna Exhibit C12 refers to Exhibit C13 which with community reading portray that the defendants with respect to some transaction in their office involving some sales staff and the Regional Sales Managers and the claimant and others were asked on the 27th August 2007 to retrieve the company’s property and reconcile the accounts within 3 days. The exhibit went to state that rather than comply with the directive the RSM’s resigned leaving two cases of mis-appropriation of funds. The management therein decided that the DSM (one of who was the claimant) and ASC’s covering the areas involved were to recover the amount within two weeks. Exhibit 13 was written following the claimant’s “non response to” Exhibit 12 informing the claimant that N246, 710.00 AND N396, 200.00 would be deducted from his monthly salary with effect from the end of November 2007. The claimant as in the tabulation following paragraph 40 of exhibit C1 has stated as the amount deducted from his salary as a result of Exhibit C13. The claimant also referred to a frontloaded letter dated 12th March 2009 handwritten by the claimant and addressed to Mr. Vats complaining of a deduction of N14. 500.00 made from the claimants February 2009 salary reference a telephone conversation where Mr. Vats had denied authorizing the deduction. Purportedly attached to this letter was “the document allowing the deduction without any reason given for the deduction “the letter continued to request the addressee to assist in ensuring the claimant is paid his balance. The problem with this letter is that it has no notice indicating that it was ever delivered to the defendants as it bears no sign of acknowledgement, See the case of NLEWEDIM v. UDUMA supra, nor has the claimant presented any reply thereto for the court to rely on and infer delivery. The attached letter frontloaded with the one of 12th March 2009 is the printout of an email within the defendants domain mail from sukeshvats to antione on March 3rd 2009 and reads as follows “Dear Antione, You can process the Feb, 09 salaries of Mr. Bodunrin DSM- Ibadan and Mr. Alhaji Ibrahim DSM – Maiduguri. Sukesh Vats.” The document contained two minutes the first dated 3rd March 2009 is directed to A. Shekun with the words “Pls to pay” with a signature and date. The second minute is addressed to no one but reads Deducted N14, 500.00 from February 2008 Salary and is dated 4th March 2009, this minute is unsigned and unreferenced. The attached document does not in my mind create the incidence of deduction the reference contained therein was neither directed to anyone nor was it signed, and an unsigned document is worthless see the case of OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 Where this court held that “it is trite that the courts cannot accord any weight or probative value to an unsigned document or an exhibit. Such will be discountenanced by the court”. EDILCO (NIG.) LTD. v. UBA PLC (2000) FWLR (PT. 21) 792 referred to.] also I find the unsigned minute has no probative value that this court can rely on. As I had stated when dealing with deduction from the claimant salary on account of expired goods the inability of the claimant to present direct evidence such as pay slips or bank statement over the period of time, deprives the court from making a finding that the deductions where or have ever been made from the claimant salary. The claimant in order to succeed with such a claim would be required to present to this court a pay slip showing his salary and regular deductions over a period of time and then show other pay slips of bank statements indicating different amounts received as salary only then can the court be invited to consider that deductions were made requiring explanation, the claimant tendered some letters relating to the deduction but nothing to indicate the actual deductions were in fact made i.e. no evidence of the claimant salary showing the chain of deductions. For the reasons adduced above I find that this arm of the claimant relief also fails. As regards the claim for outstanding salary; the claimant listed two items under this part of the relief the 1st is outstanding salary N19, 540 .00 and Outstanding salary for the months of February and March salaries, 2010 states as N240, 000.00, the claimant in the tabulation in C1 I find that neither Exhibit C2 nor Exhibit C6 make any contractual provision for incentive. The sum of N19, 540. 00. None other claimant’s averments in C1 relate to this part of the relief and the document referred to (dated 27th November 2008 was neither frontloaded nor tendered. This court can only consider facts pleaded and supported by evidence and I find that the fact incidental to this claim where not pleaded, as merely including an item in a list of claims does not amount to pleadings. The claimant in averment 25 of Exhibit C1 stated “That the defendant has refused to pay me my February and March 2010 salary”. The defendant made no mention of the payment or non payment of the claimants salary only stating that the claimant was terminated on the 10th March 2010. The law is that where certain para in the statement of fact were not denied. These facts were thereby admitted and require no further proof. See MR. JEZREEL ELO MAYOR V. ECO EXIM ALLIED LIMITED & ANOR UNREPORTED SUIT NO. NICN/LA/651/2013 the judgment of which was delivered on October 29, 2014. I find that the defendants have admitted that the claimant was not paid his salary for the months of February and March 2010, and accordingly the claimant is entitled to salary for the month of February 2010 and pro rata salary for the 12 days he worked in March 2010. The claimant also claimed his salary in lieu of notice and from the evidence before the court the claimant earned a salary of N120, 000.00 per month, Exhibit C 7 states that “After confirmation the notice required is one month notice or one month salary in lieu of notice”. Now Exhibit C6 does not give the claimant one months notice. In fact the last line of the 1st paragraph reads “ I write to inform you that your services is no longer required with effect from Friday 2010” which is the same date on the said letter;- which means the letter of termination Exhibit C6 took immediate effect. I find. Nothing in Exhibit C6 and nothing before the court which lead the court to hold that the claimant received the payment of one month’s salary in lieu of notice to which I find the claimant is rightly entitled. This part of this relief therefore succeeds and the defendant is indebted to the claimant in respect of this part of the claimants claim. The claimant also claimed for salary in lieu of accumulated annual leave with respect to his 2009 and 2010 annual leave. The defendant deny this claim in averment 20 of their Defendants witness statement on oath and plead the letter of 1st July 2009 marked as Exhibit D3. Dated 01/07/2009 From: Admin manager To: Ademola Bodunrin I.D.NO. 1/158 Subject: 2009 ANNUAL LEAVE/ENCASHMENT We refer to your application form dated 01/07/2009 and hereby inform you that twenty (20) days leave is hereby approved for 2009 annual leave. Due to the exigencies of the period you cannot proceed on your annual leave. Your leave period of 20 days is hereby uncashed. Please see the Accounts department of your annual leave encashment allowance amounting to One hundred and twelve thousand, six hundred and twenty-five naira, fourth-five kobo. (112,625.45) OLUSEGUN .E Kwassi Cc: CEO ED- Raja ED-Eddy AC PF This letter also displays no evidence that the claimant even received it not to mention acknowledge payment. The letter merely directs the claimant to approach the Accounts department for his annual leave payment of N112, 625. 45. The defendant would be required to produce in the court evidence from the accounts department where the claimant actually signed for this 2009 annual leave allowance of evidence of payment in to the claimants bank account e.t.c. In law and relying on the authority of NLEWEDIM v. UDUMA Supra I find that Exhibit D3 falls short of the mark to refute the claimants claim of non payment. This part of the claimants relief therefore succeeds. With regard to the claimants leave annual leave 2010. Exhibit C2 provides in paragraph 4. 11. 2 that “Annual leave period shall be in accordance with the individuals employment leave entitlement as advised in his letter of appointment….Subsequent leave shall be due and taken on the anniversary date of the employees employment with the company.” And in paragraph 4.11.3 (b) provides that “Leave must be taken annually as and when due; accumulation will not be allowed. Payment in lieu of leave will not be permitted either…” Now the rules guiding the claimant employment prohibit payment of money in lieu of leave however the defendants have in Exhibit D3 violated their own rule and having done so the claimant stands entitled to have his enchased leave for 2009 Exhibit C6 makes no mention of leave allowance and the claimant have not put forward in this case the prevailing collective agreement to enable the court evoke the provision be that as it may this court is not permitted to give the claimant what he has not asked for. In ADENUGA & ORS Vs. J. R. ODENERU [2001] 2 SC 1, the apex court held “a court of law must Snot grant to a party which is not sought or which is more that he had claimed. The claimant also made a claim for his Leave in 2010. By virtue of paragraph 4.11.2 that “Subsequent leave shall be due and taken on the anniversary date of the employees employment with the company” joined the defendants on the 8th July 2005 and bearing in mind that the claimant from Exhibit C6(1). I find that the claimant having been terminated in March 2010 was not due for his 2010 annual leave and hence cannot bring a claim for it in the circumstances of this case. Therefore, that aspect of the claim fails the section that succeeds is the claim for 2009 annual leave of N120, 000.00 only as claimed by the claimant. The claimant in the course of his pleadings plead that he had made payments to the Local Government in respect of fines and papers to the tune of N215, 000.00 for the years 2009 and 2010, see averment 22 in Exhibit C1. In support of this pleading the claimant tendered Exhibit C48 being a handwritten letter/memo addressed to Mr. Subair and dated 4th March 2010 informing the addresses that their movement was being impaired due to their incomplete Local Government issued vehicle papers and requesting for an I.O.U. of N145, 000.00 to enable him obtain the local government papers for four areas under the region. The claimant signed off that he would forward the receipt as soon as payment was made. The document also contained a minute which reads Mr. Subir Pls. approve for payment. The claimant had not presented any documentation in respect of the N70.000.00 claimed in averment 22 for 2009. There is no evidence before the court that the claimant ever paid this money the lack of documentation showing approval or the receipt issued on payment render this court unable to grant this claim as it has not been proved to the satisfaction of the court. Relief (f) and (g) are for the refund of money paid on behalf of the defendants to various customers. the claimant in making these claims stated in paragraph 36of the Statement of fact that “he always got approval from the defendants head office through its directors before spending any money on behalf and for the defendants with their signatures on various letters” and pleaded also in paragraph 38 of Exhibit C1 the claimant averred that “the defendant has approved payment of these sums at various times but they were never paid to me” but despite these pleading the claimant has not brought to court a single document bearing an indication that the expense was ever approved. From Exhibit 30 through to 38 even the latter that was titled” Approval of Vehicle Branding” was actually an application for approval transfer funds to the RSM West to be used to brand customers vehicles. Yet it contained no endorsement or minute showing approval. It is trite that in presenting bills to court for reimbursement the claimant must prove he incurred the expenses with the express approval of the defendant for the defendants to be held responsible. I find in all the claimant bills and receipts that there is no indication that the claimant ever obtained the approval of the defendant to enable this court properly consider these claims. Furthermore this claims stem from 2006, 2007, 2008 and 2009. The claimant was terminated in 2010, this raises the question were these expenses made, if they were made at all, with the intention that the defendant would refund them, if so why where they not refunded all these years, I find that with respect to these expenses made prior to when the claimant was terminated, the claimant had actually condoned the non refund of the expenses he incurred if any and to bring these up at this time cannot be considered reasonable. Had the claimant obtained due approval for these expenses the court would have been in a position to consider them on their individual merits but as it is these claims cannot be entertained as not only do they not bear any indication of being served on the defendant the claimant has not satisfied the court that these expenses were incurred with the knowledge and support of the defendant, or that there was ever any intent of refunding these claims therefore all fail, and are dismissed. The claimant is asking in relief (g) for the refund of expenses he made to other persons on behalf of the defendant. Now this court has held that jus terti has no place in a labour court, see the case of UNREPORTED SUIT NO: NICN/CA/125/2013 ENO BASSEY ETIM Vs. ERGIA (NIG.) LIMITED delivered on the 23rdFebuary 2016 where it was held that “the right of a third party cannot be used to sustain a claim. In other word the claimant cannot sue to enforce the right of another person. See the case of UGORJI Vs. ONWU [1991] 3 NWLR (Pt. 178) 177 .The claimant, went beyond being an intermediary between the defendants and these customers or erstwhile staff and has not shown the to court how he is entitled to this sums claimed. For that reason this part of the relief consequently fails. The claimants are also asking for the sum of N10, 000, 000. 00 as general damages for character assassination and libelous content of Exhibit C6. I agree with the defendant that this court the National Industrial Court is a specialized Court with statutory jurisdiction prescribed and limited by the enabling laws which are at this time Sec. 7 of the National Industrial Court Act, 2006; Sec. 254 c of the 1999 Constitution (as amended); and the jurisdiction of this court does not extend to claims for a general civil nature and does not include claims relating to libelous content and character assassination as contained in relief (h) This court in the ruling in case of UNREPORTED SUIT NO: NICN/CA/89/2014 MR. ASIKONG DON ESEGE Vs. SONGHAI NIGERIA PARTNERSHIP LTD & ORS delivered 8th December 2015, where this court decline jurisdiction to entertain a claim in defamation and held that the said claim was “not within the categories provided by the relevant statutes governing the jurisdiction of this court…… The learned Mohammed Bello CJN put the point succinctly while pronouncing on the nature of Jurisdiction in UTIH Vs ONOYIVWE supra “Moreover, Jurisdiction is the blood that gives life to the survival of an action in a court of justice without jurisdiction the action will be like an animal that has been drained of its blood. It would cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise” The supreme court in ONUEKWUSI Vs REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH. Held that the law is well settled, that the nature of the claim placed before the court that determines whether the court has jurisdiction over the subject matter. ADEYEMEI & ORS Vs OPEYON [1976]10 DC 31 at p51. Furthermore, this Court has severally declined jurisdiction in claims for defamation even when the defamatory imputation was said to have arisen from the workplace, See the cases of MR. C. E. OKEKE & 2 ORS V. UBN PLC [2011] 22 NLLR (PT. 61) 161 AT 183 and DR E. G. AYO AKINYEMI V. CRAWFORD UNIVERSITY [2011] 22 NLLR (PT. 61) 90 AT 110. This court cannot entertain relief (h) Relief (i) is for 30% on the adjudged sum till judgment is delivered and 10% interest from judgment until the sum is fully paid. This Court does not grant pre-judgment interest. See KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED supra. For this reason, the claimant is not entitled to this part of relief (i). The defendants raised a counter claim to wit; 1. A sum of #1,800,000.00 (One Million Eight Hundred Thousand Naira) only, being the value of the Four Runner Jeep Official car attached to the office of the defendant by counter claim and which car the defendant by counter claim has refused to hand over to the counter claimant following the termination of the employment of defendant by counter claim and despite demands. 2. The sum of #13,155,583.14K (Thirteen Million One Hundred and Fifty Five Thousand Five Hundred and Eighty Three Naira, Fourteen Kobo) representing the amount of defendant’s goods sold by the defendant to counter claim without the consent or authority of the counter claimant which proceeds the defendant by counter claim has failed, refused and neglected to remit to the counter claimant. 3. Cost of this action. With regard to relief 1 the defendant has not shown the court how it arrived at the sum of N,8 million as the cost of a vehicle assigned to the claimant in 2006 for use in marketing the claimants goods throughout the western region, there is no evidence as to the state of the vehicle the purchase price, the degree of depreciation if any, or of who and how the valuation of N1,8m was arrived at, the court cannot grant vague and nebulous claims see the Supreme Court case of UNIVERSITY OF JOS V. DR M. C. IKEGWUOHA [2013] 9 NWLR (PT. 1360) 478, where the apex court directed that court should refrain from granting vague and nebulous claims. I find and hold that relief (1), is vague and nebulous and so cannot be granted. It accordingly fails and is so dismissed. Relief 2 is for the sum of 13,155,583.14K (Thirteen Million One Hundred and Fifty Five Thousand Five Hundred and Eighty Three Naira, Fourteen Kobo) being the cost of goods sold by the defendant to the counter claim without the consent of the counterclaimant. The counterclaimant in paragraphs 29, 30 and 31 stated that “ …. The claimant is indebted to the defendant to the tune of N14, 252, 472.00 (Fourteen Million Two Hundred and Fifty-Two thousand, Four Hundred and Seventy-Two Naira). Document showing the summary of the indebtedness of the claimant with the defendant with the caption ‘Full and Final Settlement of Account’ will be founded upon at the trial of this suit” Paragraph 30 states” the claimant, owing to the lack of diligence and absolute disregard for his responsibility as the Divisional Sales Manager of the defendant at ensuring the recovery of the proceeds of sale if the defendants goods sold on credit, failed, refused and neglect to recover debt of N13, 155, 583.14k (Thirteen Million One Hundred and Fifty Five Thousand Five Hundred and Eighty Three Naira Fourteen kobo only) representing the proceeds of goods sold on credit to customers of the defendant by the claimant without the consent of the defendant, the defendant will place reliance on documents showing this indebtedness at the trial of this suit. Paragraph 31 goes on that “it was due to the gross incompetence and mischievousness of the claimant that the proceeds of sale were not recovered.” The defendants/ counterclaimant presented what the terms of the summary of Ibadan Customers Outstanding and D11 the Full and Final settlement. First of all no explanation was given for the difference between the amount stated in paragraph 29 and the amount in paragraph 31, Secondly the document presented as Full and final Settlement is merely a tabulation of the claimants entitlement juxtaposed with the defendants claims of the jeep and unremitted sale proceeds. This documents was signed by the ‘Admin Human Resources Department HOD’, ‘The Accounts head’, and another signature designated ‘Authorised Signature’. Once again this court is being presented with a document prepared by one party, this time the defendant counterclaimant, devoid of any evidence of notification that the said document was ever presented to the other side; the claimant. The law has been laid out in NLEWEDIM v. UDUMA supra as to what constitutes proof of service/delivery. From the said Exhibit D11, I find represents a document prepared by the defendant counterclaimant without any input or reference to the claimant and as such commands no probative value beyond being a document prepared by the defendant counterclaimant. In addition the said exhibit is undated as the only dates referenced therein refer to the date the claimant joined the defendant company and the date he left the defendants employ. In law an undated document commands no probative value and the court cannot rely on such an exhibit for any purpose whatsoever. See the case of OGBAHON V. REG. TRUSTEES CCGG [2001] FWLR (PT. 80) 1496; [2002] NWLR (PT. 749) 675 where the court held an undated document to be invalid. As regards the defendant counterclaimants pleadings that it would “place reliance on documents showing this indebtedness at the trial of this suit” I find that none of the defendants are indicative of any such indebtedness, the defendant Counterclaimant Exhibit D 10 described as a summary of Ibadan Customers outstanding relates to outstanding bills from 2005, 2006, 2007 and 2008 and 2009 as well as 2010 after the claimant had left office. Anyway the position of the law is that where an employer who upon the knowledge of an infraction or failing by an employee chooses to condone same cannot thereafter complain. See EKUNDA V. UNIVERSITY OF IBADAN [200] 12 NWLR (PT. 681) 220 CA, ACB PLC V. NBISIKE [1995] 8 NWLR (PT. 416) 725 CA, NIGERIAN ARMY V. BRIG. GEN. MAUDE AMINU KANO [2010] 1 MJSC (PT. I) 151 and LAWRENCE IDEMUDIA OBORKHALE V. LASU [2013] 30 NLLR (PT. 85) 1 NIC. In addition to the above the defendant frontloaded copious documents of the outstanding balances of various customers and the date the defendant’s letters to these customers presenting the customers financial standing and indicating their outstanding balances as at the dates stated therein. And these period being considered I find extends to periods after the claimant had left the defendants employ. The following documents were frontloaded by the defendants all are letter of demand addressed to the defendant’s customers; to wit 1. Sawajara Investment Ibadan in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N147, 115.13 2. Tunfun Ventures Ilorin in a letter dated 30th April 2010 for the period (01/01/2009-31/12/2009) had an outstanding balance of - N1, 424, 747. 81 3. Chief Ude & Sons, Ilorin in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N988, 445.97 4. Ola Jesu Nig. Ltd Offa in a letter dated 3rd August 2011 for the period (01/01/2010-31/12/2010) had an 0utstanding balance of - N 185, 916. 19 5. Oluwakemi Stores Shagamu in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N209, 079.90 6. Nazareth Ventures Ilorin in a letter dated 3rd August 2011 for the period (01/01/2010-31/12/2010) had an outstanding balance of N4,653,815.62 7. Mola Ventures Ilorin in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N363, 788.49 8. Moyin Oluwa Ilorin in a letter dated 3rd August 2011 for the period (01/01/2010-31/12/2010) had an outstanding balance of - N239, 257. 76 9. Ejide Stores Ibadan in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N135. 906.81 10. Double B Ibadan in a letter dated 3rd August 2011 for the period (01/01/2009-31/12/2009) had an outstanding balance of - N2, 420, 720. 15 11. Batoram Investment Ilorin in a letter dated 3rd August 2011 for the period (01/01/2010 to 31/12/2010) had an outstanding balance of - N378. 241.09 12. Mrs. A. Raimi Stores Ibadan in a letter dated 3rd August 2011 for the period (01/01/2009-31/12/2009) had an outstanding balance of - N98, 840. 27 13. Alhaji Baba Ita Ilorin n in a letter dated 30th April 2010 for the period (01/01/2009 to 31/12/2009) had an outstanding balance of - N510. 429.45 14. Ayub Trading Ibadan in a letter dated 30th April 2010 for the period (01/01/2009-31/12/2009) had an outstanding balance of - N783,210. 00 15. Adeb Ent. Ibadan in a letter dated 3rd August 2011 for the period (01/01/2010-31/12/2010) had an outstanding balance of - N203,979. 14 The defendant also front loaded a bound volume exhibit filed on the 9th October 2014, these document were neither regularized in this court neither was the leave of court obtained to enable the court act on them. The total of the sum amount of the 15 accounts duly frontloaded and listed here above sum up to N10, 788, 540.83. (Ten Million Seven Hundred and Eighty Eight Thousand Naira, Five Hundred and Forty thousand Eighty three Kobo, even if the documents summed up to the amount claimed the defendants have not shown to the satisfaction of the court how they arrived at the sum they are now counterclaiming and it is not for the court to speculate;- AGBOGUNLERI Vs. DEPO Supra. More importantly in addition to the fact that the sum of the losses being claimed against the claimant arose as far back as 2005 and seeing that the claimant was promoted in 2007 which presupposes that the defendants had condoned the shortcomings of the claimant if any. The defendants in paragraph 31 attributed their loss to the claimant’s incompetence and mischievousness. That being the case and considering that the defendants in the documents listed above have taken steps to recover the said loss from the customers in some cases rolling over credit and in others threatening legal action, the question arises that seeing as the claimant was terminated for his incompetence and considering that the defendants have frontloaded documents informing their customers as to their individual indebtedness to the defendant company, all of which fall short of the legal requirement of NLEWEDIM v. UDUMA supra, without presenting the respective replies from the individual customers to afford the court make a holistic finding, the question remains; are the defendant counterclaimants entitled to recover these sums from the claimant. Especially as the defendants counterclaimant have not shown to the court from the agreements governing the employment where the claimant is obligated or the defendant is entitled to recover credit sales from the defendant while at the same time (as well as) go after the customer for the outstanding balance. It may however be more rewarding and open to the defendant counterclaimant to have made a claim for the loss they purportedly incurred as a result of the inability of the claimant to recover the outstanding debts within reasonable time. Damages for time wasted. Bearing in mind that a counterclaim is a regarded as an independent action See the case of UNREPORTED SUIT NO: NICN/CA/07/2014 MR. LAWRENCE AKPAN EKONG Vs. HOSPITALS MANAGEMENT BOARD, AKWA IBOM STATE delivered on the 1st of March 2016 the counterclaim of the defendant is required to be proved as a claim in its own right and the burden of proving the substance of that claim I the case of OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224, this court held that in order to be entitled to an award of special damages, the claimant must prove his entitlement to it by pleading same in his pleadings and particularizing the special damages as required by law… MARINE MANAGEMENT ASSOCIATE INC. & BADMUS v. KAMINE MARINE CONSULTANCY LTD. I find that in the circumstances of this case and from the foregoing the defendant counterclaimant has neither proved the relief sought in this counterclaim nor has he shown to the court how the defendant is entitled to the relief. Thus relief 2 therefore fails and is dismissed. The 3rd relief is for the cost of this suit. In law cost follows event and in the circumstances where the reliefs in the defendants counterclaim have failed the defendant’s entitlement to the cost of this suit accordingly fail. I would not end this judgment without decrying the practice of both counsel of frontloading documents on this court without any pleading or submission as to what the party wished to do with the document. Because by the rules of this court all documents frontloaded in a case are deemed automatically admitted is not an excuse to flood the court with irrelevant documents. The claimants frontloaded a document highly undecipherable bearing a date in 2005 relating to a claim made in respect of an official trip outside the claimant station. This document had no bearing on the matter. I had also mentioned earlier other documents tendered with no bearing to the pleading of the claimant. The defendant also fared no better, a particular document frontloaded was titled Reconciliation of Accounts dated 10th December 2010 unsigned the documents stated that the balance payable by Nazareth Ventures stood at N511, 067.00 whereas the formal letter addressed to the said Nazareth Venture list as No 6 in the documents would on which the defendant counter claimant “placed reliance to show indebtedness.” I ask the question why was the document of 10th December 2010 filed in court in the first place? Both parties are culpable in this bad practice, this court judicial time is precious and ought not be wasted sifting through irrelevant and ineligible documents, the system of front loading is designed to ease the judicial process and not further convolute it. Moreover in UCHA & ANOR V. ELECHI & ORS [2012] 13 NWLR (PT. 1316) 330 SC the Supreme Court held that on no account must counsel dump documents on a trial court as no court would spend precious judicial time linking documents to specific areas of a party’s case. SEE ALSO ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 AT 211 and BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 AT 99 – 100. From the foregoing I find and hold that the counterclaim of the defendants lacks merit, therefore fails and is hereby dismissed. The claimant Reliefs (a), (b) (c), (d), part of (e) the claims as regards medical allowance, , deductions from plaintiff salary on expired stocks sent to Lagos Office, deduction from float from July, 2009 to February, 2010, unpaid incentive from November, 2009 to February, 2010, salary deductions, outstanding salary, (f), (g), (h) and part of (i) fail and are hereby dismissed. The claimant case succeeded but only in respect of part of (e) salary in lieu of notice, February and March salaries, 2010 and salary in lieu of accumulated annual leave and post judgement cost. For avoidance of the doubt the defendant shall pay to the claimant the following;- 1. The sum of N120, 000.00 (One Hundred and Twenty Thousand Naira Only being one month’s salary in lieu of notice. 2. The sum of N120, 000.00 being one month salary for the month of February 2010. 3. The sum of N48, 000.00 (i.e. N120, 000.00 being one month’s salary divided by 30 days = 4. 000 multiplied by 12 days= N48, 000.00) which the claimant worked in March 2010. 4. The sum of N120, 000.00 being salary in lieu of accumulated 2009 annual leave. 5. Cost of this suit is put at N100, 000.00 (One Hundred Thousand Naira Only). 6. All sums to be paid within 30 days of this judgment after which interest as 10% per annum will inure. This is the judgment of this court and it is hereby entered accordingly. ……………………………………… Justice E. N. Agbakoba Presiding Judge Calabar Division