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<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Funmi Falana with A.K. Isola-Osobu & Audu Augustine for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Akinyele Ajiboye with L.N. Mbanefo for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant approached this Court on 26/11/12 via his <i>General Form of Complaint </i>and by his amended statement of facts pursuant to order of Court made on 9/7/13 the Claimant made the following claims against the Defendant -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">1. A declaration that the Claimant is entitled to be paid severance packs, backlog of salaries and all his entitlements in line with conditions of service of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">2. A declaration that the non-payment of the Claimant severance packs, backlog of salaries and other entitlements due to him after retirement is a breach of his conditions of service by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">3. An order directing the Defendant to pay the Claimant sum of N8,071,460.85 (Eight Million, Seventy One thousand, Four Hundred and Sixty Naira, Eighty five kobo) being his outstanding salaries and entitlements forthwith.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">4. An order directing the Defendant to pay the sum of N5,000,000.00 (Five Million Naira Only) to the Claimant as compensation for the hardship, mental and Psychological trauma he suffered for non-payment of his entitlements since after his retirement.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">5. Interest on the above stated sum at the rate of 25% per annum against the Defendants from 2003 till judgment (or sooner payment) and thereafter at the rate of 10% per annum until final liquidation of the judgment sum.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The statement of facts was accompanied by all requisite frontloaded processes as mandated by the Rules of Court.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Defendant entered an appearance on 2/6/14<b> </b>and filed its statement of defence together with witness deposition on oath and all other processes as required. The Defendant made a counter claim for the sum of Four Million and Four Hundred Thousand Naira being rent for the period of April, 2004 to March, 2014 made as follows:-<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin: 0in 0in 0.0001pt 1in; text-align: justify;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">April 2003 to March 2004 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2004 to March 2005 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2005 to March 2006 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2006 to March 2007 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2007 to March 2008 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2008 to March 2009 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2009 to March 2010 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2010 to March 2011 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2011 to March 2012 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2012 to March 2013 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify"><span style="font-size:12.5pt;line-height:115%; font-family:"Times New Roman","serif"">April 2013 to March 2014 - N400.000.00<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The Defendant also claims interest on the above sum at the rate of 21% until judgment and thereafter at the same rate till liquidation.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The hearing of this case commenced on 27/10/14 when the Claimant testified as CW1. Claimant adopted his witness statement on oath dated 1/7/14 as his evidence in chief and tendered <i>Doc. 1</i><b> </b>as exhibit. The case of the Claimant from the pleadings filed was that he was employed by the Defendant on the 16<sup>th</sup> day of May 1964 as the Public Relation Officer (PRO) and was issued a letter of employment and Handbook of the Defendant stating the condition of service; that he served in the employment of the Defendant meritoriously for thirty-eight years and nine months; that he contributed immensely to the operation and growth of the Defendant during his time in various capacities as staff, in recognition of which he received an Award; that he retired in 2003 since then his entitlements and backlog of salaries have not been paid by the Defendant; that all efforts both written and oral demand of the said entitlements from me to Defendant proved abortive; that he personally made several representations to the Defendant including using the <i>Office of the Public Defender</i> at Alausa and asking his Solicitors to write demanding my entitlements to be paid to no avail and that several meetings were equally held between him and the Defendant after which the Defendant still refused to pay his entitlements/retirement benefits in accordance with the condition of service and that in spite of repeated demands the Defendant has failed and neglected to pay his entitlements and arrears of salaries from 2003 till date.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination, CW1 stated that he was employed as Public Relation Officer; that he held WAEC at the time; that he was given letter of employment by Defendant; that the Defendant’s Handbook covered his terms of employment; that a Certificate of Long Service award was given to him because he worked for the Defendant for a long time; that he has been living in official quarters since his employment and he is still in the premises till date. CW1 added that he retired from the Defendant in 2003; that while he was with the Defendant my Housing Allowance was =N=34,071 per month; that he is not interested in staying in the staff quarters provided Defendant pays me my entitlements; that he is comfortable staying in the quarters because he has no choice. In re-examination, the witness stated that the Defendant compelled him to stay in the premises and that he has no intention of continuing to stay there once the Defendant pay his entitlements.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant called one Festus Oyedele Odunukan as his <i>CW2. </i>CW2 adopted his witness statement on oath dated 10/9/14 as his evidence in chief. He did not tender any document as exhibit. Under cross examination <i>CW2</i> stated that he retired from Defendant in 2005 having served for 24 years; that he is no longer living in the G. Cappa Estate having left the premises in November 2013; that he is longer the Vice Chairman of Defendant’s Estate Residents Association; that as Vice Chairman of Resident Association for 7 years he was very familiar with the affairs of the Association; that he is a witness of truth in this case and that Residents of the Association were paying utility bills in the Estate.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Defendant opened its case on 15/12/14 and called one Jude Iloba as its <i>DW1</i>. Witness adopted his witness statement on oath dated 28/5/14 as evidence in chief and tendered 9 documents as exhibits. The documents were admitted as exhibits and marked as <i>Exh. D1 - Exh. D9. </i>The case of the Defendant was that the Claimant has been in occupation of its official quarters i.e. two bedroom apartment at No. 102, Bornu Way, Ebute-Metta, Lagos without paying rent or service charge since 2003; that the Defendant did not owe the Claimant any salary and other allowances while he was in the employment of the Defendant except his final entitlements which was calculated as =N=8,071460.85 (Eight Million, Seven-One Thousand, Four Hundred and Sixty Thousand Naira, Eighty-Five Kobo) by the Defendant’s Account Department; that in 2004, after his retirement, the then Management of the Defendant headed by one Mr. J.O. Adegun had written letters intimating tenants of the fact that ex Company staff would be compelled to pay economic rent for the use of the flats occupied by them and which rent would be discounted from their final entitlements; that in furtherance thereof, the Defendant engaged the firm of Messrs Chidom & Co., Estate Surveyors and Valuers who carried out the rental valuation of the said serviced 2 bedroom apartment occupied by the Claimant at the said Defendant’s Official Quarters and issued the valuation report which put the rental income of same of =N=400,000.00 (Four Hundred Thousand Naira) per annum; that the Claimant is indebted to it in the sum of =N=4,400,000.00 (Four Million, Four Hundred Thousand Naira) being rent for the period of April, 2004 to March, 2014.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination the witness said he became Company Secretary of Defendant in 2011; that the Claimant has not been paid his entitlement by the Defendant; that he lives in one of the property of the Defendant; that his salary is =N=200,000.00 per month. and =N=10,000 is deducted from it salary as rent; that the property is a 3 Bedroom flat; that Miss Aruegbe was the Company Secretary before his appointment in 2011; that there was an agreement between Defendant and Claimant for the Claimant to be paying rent on the property and that there was no rate of rent agreed by the parties. According to the witness under cross examination, Mr. Malahi Ndubuzor the Corporate Affairs Manager of the Defendant lived in the same premises with the Claimant; that he does not know where he lives now' that he does not know if he was a member of Resident Association; that the Defendant subsequently became strong and financially buoyant to pay the utility bills and the Residents were aware; that the Defendant did not communicate this fact to the Residents; that since the making of Document he could not say if the Claimant paid any of the bills; that he has never being a member of <i>G. Cappa Resident Association 102, Borno Way, Ebute Metta, Lagos; </i>that he does not know if the members contribute money and that he does not know the Secretary of that Association.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Defendant called one Mr. Raymond Chidom as its DW2. Witness who described himself as Estate Surveyor and Valuer adopted his written witness statement on oath dated 3/3/15 as his evidence in chief and unsuccessfully sought to tender a report. In cross examination, DW2 stated that in carrying out the Defendant’s instruction he did not enter into the Claimant’s flat; that the effective date of the valuation is 21/12/13; that he does not know the value as 2004; that the rental value of a property will not remain same over a ten years period and that he is not aware of any agreement between the parties for the Claimant to pay rent.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">At the close of trial and as directed by the Court, learned Counsel on either side filed and adopted their final written addresses in accordance with the Rules of Court. The final written address of the Defendant was filed on 24/2/16. In it, learned Counsel set down the following 2 issues for determination -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">1. Based on the evidence and documents placed before the Honourable Court, the Claimant has proved his case.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">2. Whether based on the evidence and documents placed before the Honourable Court, the Defendant has been able to prove its counter claim.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Arguing issue 1, learned Counsel submitted that the law is trite that he who asserts must prove same citing <i>Okunade v. Olawale (2014)10 NWLR (Pt. 1415) 207 at 221. </i>Learned Counsel submitted further that letter of employment which normally contains the basic terms of employment of a servant by a master to enable the Court to appreciate the terms of the contract of employment between the parties citing <i>Emmanuel Jeremiah v. Anthony Ziregbe (1996)7 NWLR (Pt. 460) 346 & Layade v. Panalpina World Transport Nigeria Limited (1996)6 NWLR (Pt. 456) 544</i>; that the Claimant has failed and refused to tender before the Court any letter of employment which contains the terms of his employment and that the reason the Claimant failed to submit the said document in support of his case is that such evidence will not be favourable to his claim, relying on <i>S. 167 (d), Evidence Act, 2011, Dupe Olufosoye v. Fakprede (1993)1 NWLR 747. </i>Rather than tender a letter of employment, according to Counsel, Claimant only produced <i>NJIC</i> document, <i>Doc. 7,</i> which cannot take the place of letter of employment; that Doc. 7 being a company document requires authentication by a Director or secretary of the Company by virtue of S, 77 of the <i>Companies & Allied Matters Act </i>and that Doc. 7 did not emanate from the Defendant. Counsel urged the Court not to rely on Doc. 7 being an unsigned document citing <i>Garuba v. KIC Limited (2005)5 NWLR (Pt. 917) 160 at 166 & Dantiye v. Kanyi (2009)4 NWLR (Pt. 1130) 13 at 20.<o:p></o:p></i></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Respecting the claim for =N=5,000,000.00 as compensation for hardship, mental and psychological trauma suffered, ;earned Counsel submitted that the Claimant as failed to demonstrate and/or place evidence before the Court to prove his assertion and that it is the primary duty of the Court to evaluate evidence placed before it, citing <i>UBN v. Ozigi (1994)3 NWLR (Pt. 333) 385 & A.G. Oyo State v. Fair Flakes Hotels (1989)5 NWLR (Pt. 121) 255 at 263. </i>Finally, learned Counsel urged the Court to resolve this issue in favour of the Defendant and hold that the Claimant has failed to prove entitlement to his claims.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On issue 2, Counsel submitted that facts admitted need not be proved, citing <i>S. 123, Evidence Act, 2011 & Adebayo v. Babalola (1995)7 NWLR (Pt. 408)383; </i>that the Claimant admitted the facts that he is still in occupation of the Defendant's official quarters at 102, Borno Way, Ebutte-Meta, Lagos since 2003 till date and that on these facts the Defendant is entitled to its counter claim there being no challenge to the evidence led, relying on <i>Calabar East Coop v. Ikot (1993)8 NWLR (Pt. 311) 324 & N.B.A v. Ekemezie (2008)12 NWLR (Pt. 1100) 326 at 372. </i>Learned Counsel argued further that the <i>Valuation Report dated 5/1/14 </i>which was tendered and marked <i>Tendered & Rejected </i>by the Court on the ground that same was made in anticipation of this suit is indeed admissible under <i>S. 91, Evidence Act 2011 </i>citing <i>Agbaje v. Adigun (1993)1 NWLR (Pt. 269) 216. </i><o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Respecting the counter claim, learned Counsel submitted that the Defendant's official quarters i.e serviced two bedroom flat at 102, Borno Way, Ebute Metta, Lagos allocated to the Claimant while he was in the employment of the Defendant formed part of the contract of employment between him and the Defendant; that upon his retirement the Claimant refused to vacate same which is in breach of his contract with the Defendant; that the Defendant's claim for economic rent is a special damage for denying the Defendant the use of same since 2003 till date and that this Court has jurisdiction to entertain the Defendant's set-off and or counter claim since same flows from the contract of employment of the Claimant with the Defendant. Counsel cited <i>N.U.T, Niger State v. COSST, Niger State (2012)10 NWLR (Pt. 1307) 89 at 97 & Council, Fed. Poly, Mubi v. Dingo (2014)16 NWLR (Pt. 371) 373.<o:p></o:p></i></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Finally, learned Counsel submitted that the Claimant has failed to prove his case. Counsel prayed the Court to dismiss the case of the Claimant and enter Judgment for the Defendant in terms of its counter claims.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The final written address of the Claimant was dated 22/3/16 and filed on 23/3/16. Learned Counsel set down two main issues for the just determination of this case. They are as follows -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">1. Whether the Claimant is entitled to the payment of his severance benefits as contained in the final account issued by the Defendant to the Claimant in his name as well as compensation for the refusal of the Defendant to pay same and interest thereon.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">2. Whether this Honourable Court has jurisdiction to entertain the Defendant's Counterclaim.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On issue 1, learned Counsel submitted that the Defendant admitted Claimant's statement of claim in paragraphs 1 to 5 of the statement of defence safe that it denied owing the Claimant any salary and that there is no need to prove any of those facts admitted. Learned Counsel referred to <i>Chris Ehikioya Eigbe v. Nigerian Union of Teachers (2011)22 NLLR (Pt. 62) 227 at 251 & Seismograph Service (Nig.) Limited v. Chief Keke Oghenegwekwu Eyuafe (1976)9&10 135. </i>Counsel submitted that the admission contained in the final account issued to the Claimant by the Defendant as well as the admission in paragraphs 1 to 5 of its statement of defence prove the truthfulness of the fact that the Claimant is entitled to the sum of =N=8,071,460.85 as contained in the statement of account. Relying on section 123, <i>Evidence Act, 2011, </i>learned Counsel urged the Court to grant the Claimant's claim in paragraph 13c of its statement of facts. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On issue of compensation, learned Counsel submitted that the defendant admitted that it did not pay the Claimant the sum contained in the final account referring to paragraph 4 of the statement of defence; that the act of withholding the Claimant's severance benefit without any just cause ought to attract general damages/compensation.Counsel also cited <i>Folayan Morlap Shipping Company Limited Suit No: NICN/LA/472/2012 & Adetoun-Adekoya v. UBN (2013)35 NNLR (Pt. 103) 139 at 181. </i>Counsel prayed the Court to award compensation accordingly. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On issue of interest, learned Counsel referred to section 19(d) of the <i>National Industrial Court Act, 2006.</i><o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Counsel submitted further that the deliberate and arbitrary withholding of the Claimant's severance benefits for an inordinate long period without any just cause constitutes unfair labour practice and same antithetical to international best practice in labour which this court has jurisdiction to adjudicate on, relying on <i>Mariam v. University of Ilorin Teaching Hospital Management Board (2013)35 NLLR (Pt. 103) 40 at 134. </i>Counsel urged the Court to condemn in strongest terms the anti labour acts of the Defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On the argument of the Defendant on failure of the Claimant to tender his letter of employment and that there is no way to determine the terms and conditions of the employment, learned <i> </i>and submitted that the Defendant's admission in paragraphs 1 to 5 of its statement of defence proves the fact that the Claimant is entitled to the sum of =N=8,071,460.85 stated in the statement of account. Learned Counsel urged the Court to so hold and resolve issue 1 in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">On issue 2, learned Counsel submitted that the Defendant's statement of defence and defence to counter claim discloses no reasonable cause of action against the Claimant. In the alternative, Counsel submitted that the counter claim of the Defendant is not within the jurisdiction of this Court. According to Counsel, the jurisdiction is conferred on this Court by section 254C, <i>Constitution of the Federal Republic of Nigeria, 1999 as amended </i>and that the counter claim which is recovery of rent is not one of the matters covered by the said section. Counsel cited <i>Tukur v. Government of Gongola State (1989)4 NWLR (Pt. 117) 517 at 549 & Ismail Aderemi Adewunmi v. Access Bank Plc (2013) NLLR (Pt. 792) at 810 </i>on the principle of law that jurisdiction is determined by the plaintiff's claim. Learned Counsel thus prayed the Court to decline jurisdiction respecting the counter claim of the Defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Learned Counsel argued further that assuming without conceding that this Court has jurisdiction on the counter claim, that the Defendant averred in paragraph 7 of its Counter claim that the Claimant has been in occupation of its official quarters without paying rent or service charge since 2003 but that it failed to produce any agreement between the parties on payment of economic rent. It was the argument of Counsel that in his defence to counter claim that the Claimant had averred that he remained in his official apartment because of the Defendant's failure to pay his severance benefits. Counsel thus submitted that there is no basis for the Court to grant the counter claim sought in the absence of any agreement to that effect and that it is trite that a Court will not make a contract or agreement for parties where none exist, citing <i>Nwaolisah v. Nwabufoh (2011)14 NWLR (Pt. 1268) 600 at 626. </i>Learned Counsel prayed the Court to resolve issue 2 in favour of the Claimant, grant all the reliefs sought by the Claimant and decline jurisdiction respecting the counter claims of the Defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">I have carefully read all the processes filed by learned Counsel on either side. I understand same. I listened to the witnesses called at trial and watched their demeanour. I addition I reviewed all the exhibits tendered and admitted as well as listened attentively to the oral submissions of learned Counsel on either side. Having done all this, I narrow the issues for the just determination of this case down to 3 as follows -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">1. Whether the Claimant has proved his case to be entitled to any or all his claims.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">2. Whether this Court has jurisdiction to entertain the counter claim of the Defendant. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">3. Whether the Defendant is entitled to its counter claims as sought.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The reliefs sought by the Claimant in his complaint and statement of facts are 5 in number. The first two reliefs are for declaration while the 3rd is for direction respecting payment of alleged sum due, the 4th is for compensation while the 5th is for payment of interest on the sums allegedly due. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The law is trite and long established that he who asserts must prove. However, the need to prove is dispensed with where there is admission of the relevant facts by a party in the proceedings. The Court of Appeal in<span class="apple-style-span"><span style="color:#000099"> <i>Iyeke v. Abu (2015) LPELR-25735</i> asked the question as to what constitutes an admission in law? Their lordships put the position of the law on what constitutes admission in law as follows - ''Black's Law Dictionary 7th Edition at page 48 defines "Admission" as "A voluntary acknowledgment of the existence of fact relevant to an adversary's case." Section 20 of the Evidence Act 2011 defines an admission as a statement, oral or documentary or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances mentioned in the Act. In <i>Anasan Farms Ltd Vs. NAL Merchant Bank (1994) 3 NWLR (Part 331) page 241 at 252</i> paragraphs B - C, An admission was defined as "a statement oral or written by a party or his agent to legal proceedings and which statement is adverse to his case''. </span></span>Thus, once an admission is made the person on whose shoulder lies the burden of proof is relieved of same on the premise that facts admitted need no further proof. <i>See Section 123, Evidence Act, 2011</i><b>. </b>In its statement of defence dated 26/5/14 and filed on 2/6/14, paragraphs 3,4 and 5 of same state thus -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">''3. The Defendant admits paragraphs 6 of the Claimant's Statement of Facts only to the extent that the Claimant retired in 2003 and the Defendant did not owe the Claimants any salary and other allowances while he was in the employments of the Defendant except his final retirement entitlements''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">''4. The Defendant admits paragraphs 7,8,9 and 10 of the Claimant's Statement of Facts that letters of demand were received from the Office of the Public Defender at Alausa as well as the Claimant's Solicitors and several meetings were held, same could not be met because of the management crisis which the Defendant was undergoing at that time but that it however allowed the Claimant to remain in its official quarters up till date without payment of rent or service charge in order to offset some of the entitlements''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">''5. Further to paragraph 6 above, the Defendant states that though the Claimant's entitlement was calculated as =N=8,071,460.85 (Eight Million, Seventy-One Thousand, Four Hundred and Sixty Naira, Eighty-five Kobo) by the Defendant's Accounts Department, it shall by way of Set off and Counter Claim ask that such sums are due to the Defendant be set off from the claims show that the Claimant is not entitled to the said sum of =N=8,071,460.85 (Eight Million, Seventy-One Thousand, Four Hundred and Sixty Naira, Eighty-five Kobo) claimed''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Furthermore, paragraphs 5 and 6 of the Defendant's witness statement on oath of Jude Iloba are as follows -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">''5. I state that though letters of demand were received from the Office of Public Defender at Alausa as well as the Claimant's Solicitors and several meetings were held, same could not be met because of the management crisis which the Defendant was undergoing at that time but it however allowed the Claimant to remain in its official quarters up till date without payment of rent or service charge in order to offset some of the entitlements''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">''.6. The Claimant's entitlement was calculated as =N=8,071,460.85 (Eight Million, Seventy-One Thousand, Four Hundred and Sixty Naira, Eighty-Five Kobe) by the Defendant's Accounts Department, it shall by way of Set-Off and Counter-Claim ask that such sums are due to the Defendant be set off from the claims show that the Claimant is not entitled to said sum of =N=8,071,460.85 (Eight Million, Seventy-One Thousand, Four Hundred and Sixty Naira, Eighty-Five Kobo) claimed''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">I find the above portion of the Defendant's pleadings as sufficient admission respecting the retirement benefit of the Claimant. In all the paragraphs quoted above, the Defendant did not in any way deny the entitlement of the Claimant to the amount claimed. Indeed as apparent from the paragraphs the Defendant only offered excuse as to why the amount was not yet paid to the Claimant. In the other, the Defendant in clear terms admitted the figure as calculated by its Account Department but rather sought to make a set off. By this clear and unambiguous admission of the Defendant, I hold that the need to call the Claimant to prove his retirement benefit is dispensed with. I thus declare that the Claimant is entitled to be paid severance benefit as admitted by the Defendant. I further declare that the non-payment of the Claimant retirement benefits is a breach of his conditions of service by the Defendant. Thirdly, I here order and direct the Defendant to pay the Claimant sum of Eight Million, Seventy One thousand, Four Hundred and Sixty Naira, Eighty Five Kobo (=N=8,071,460.85) being his outstanding retirement benefit as admitted by the Defendant forthwith.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The Claimant also sought an order directing the Defendant to pay the sum of Five Million Naira (=N=5,000,000.00) to the Claimant as compensation for the hardship, mental and psychological trauma he suffered for non-payment of his entitlements since after his retirement. The law remains trite that it is for the Claimant in a claim as this for him to succeed to prove his claim. Throughout the hearing of this case, the Claimant did not adduce any evidence in whatever form to prove this head of his claim. Not having prove same it is not possible for the Court to grant it as the Court is not a Father Christmas. This head of claim is therefore refused and dismissed. The final relief sought by the Claimant is for interest both pre-judgment and post Judgment. Again respecting pre Judgment interest the law is that it is either statutory or contractual, see <i>Dantama v. Unity Bank Plc (2015) LPELR-24448 (CA) </i>In the present case, the Claimant did not adduce any credible, cogent and admissible evidence in support of same as required by law<b>. </b>As regards post Judgment, the Rules of this Court in <i>Order 21 Rule 4, National Industrial Court Rules, 2007<b> </b></i>allows the Court to award interest at a rate not less than 10%. Thus pursuant to the Rules of this Court, the Defendant is ordered to pay interest at the rate of 15% on the Judgment sum from the date of this Judgment until final liquidation.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The second issue set down for determination is whether this Court has the jurisdiction to entertain the counter claim of the Defendant. The counter claim sought by the Defendant is as follows - The Defendant states that the Claimant is indebted to it in the sum of Four Million, Four Hundred Thousand Naira (=N=4,400,000.00) being rent for the period of April, 2004 to March, 2014 as economic rent due on the official quarters of the Defendant which the Claimant occupies.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The jurisdiction of this Court is as provide for in section 7 of <i>National Industrial Court Act, 2006 </i>and further reinforced by Section 254C, <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2011. </i>In particular, by the <i>Third Alteration Act </i>in section 254C(1)(a), this Court is endowed exclusive jurisdiction in civil matters and causes -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> ''Relating to or connected with any labour, employment trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, workers and matters incidental thereto or connected therewith''.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">There is no doubt that there existed employer/employee relationship between the parties which was eventually severed. It is also not in contention that the official quarters concerning which the Defendant now seeks economic rent was allocated to the Claimant by virtue of his being an employee of the Defendant. Thus, the issue surrounding the counter claim is incidental to or connected with employment relationship which only this Court has the exclusive jurisdiction. In any event, by section 14 of the <i>National Industrial Court Act, 2006, </i>this Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided. If there were to be merit in the argument canvassed by the Claimant against the jurisdiction of this Court to entertain the counter claim of the Defendant, the Defendant would have to go and file fresh action to seek remedy respecting the counter claim sought. I find and hold that the combined reading of sections 7 & 14 of <i>National Industrial Court Act, 2006 </i>together with the provision of section 254C(1)(a), <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2011 </i>this Court has jurisdiction to hear and determine the counter claim of the Defendant as sought.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">The third issue for determination is whether the Defendant is entitled to its counter claims as sought. The counter claim of the Defendant is for the sum of Four Million, Four Hundred Thousand Naira only being the alleged economic rent of the property of the Defendant which the Claimant continued to occupy after his retirement. The Court of Appeal in </span><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";color:#000099;mso-ansi-language:EN-GB; mso-fareast-language:EN-GB">See also <i>Ali v. Salihu (2010) LPELR - 3744 (CA)</i> stated that what a counter-claim is and its attributes are settled in law. Counter-Claim is a claim for relief asserted against an opposing party after an original claim has been made; that is, a defendant's claim in opposition to or as a set-off against the plaintiff's claim. It is not only a claim by the defendant against the plaintiff in the same proceedings but it is regarded as an independent and separate action in which the defendant/counter claimant is in opposition of the plaintiff and therefore has the burden of proving the counter claim to be entitled to judgment thereon. See <i>Maobison Inter-Link Associated Limited v. UTC Nigeria Plc (2013) LPELR - 20335 (SC)</i>. Counter-claim is a mode of instituting an action and in respect of which there is a host of decided cases. See also <i>Jeje v. Enterprise Bank Limited & Ors. (2015) LPELR-24829 (CA. </i></span><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">There is evidence before me to the effect that the said property was allocated to the Claimant as an official residence while in the employment of the Defendant. There is however no evidence before me to the effect that the Claimant was requested to vacate the premises upon retirement from the services of the Defendant. The law is trite that a counter claim is akin to a separate suit which the counter claimant is under an obligation to prove by credible and admissible evidence. In other words the burden is on the Defendant/Counter claimant to prove its counter claim by adducing sufficient evidence in support. Failure to do this, in the absence of any admission by the other party, will leave the Court with no choice than to dismiss the counter claim. What are the evidence adduced by the Defendant in support of its counter claim? In paragraph 4 of its statement of defence and paragraph 5 of the statement on oath of DW1 the contention of the Defendant was that ''... ithowever allowed the Claimant to remain in its official quarters up till date without payment of rent or service charge in order to offset some of the entitlements''. Did the Claimant agree to such an arrangement? The Claimant adequately responded to this when he stated in paragraph 11 of his reply to statement of defence and paragraph 10 of his statement on oath in reply to the Defendant's statement of defence and counter claim that he never agreed with the Defendant that his rent should be discounted/deducted from his final entitlements as there is no basis whatsoever for same. Tenancy relationship ordinarily requires some form of agreement between the parties. Such agreement will, among others, identify the property in question, the duration of the tenancy, the rent agreed to by the parties and the mode of payment of same. This is in addition to any other covenants that the parties may decide to bind themselves with. No such agreement is tendered or proved before me. Even the <i>DW2 </i>testified that he was not aware of any agreement between the parties respecting payment of rent on the property in question. It is certainly not the duty of the Court to draft agreement or contract document for the parties. To do so will amount to the Court abandoning its primary constitutional responsibility of adjudication and jumping into the arena. I find no credible evidence in support of the counter claim of the Defendant and hence no basis for the grant of same. The counter claim is therefore dismissed. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Before leaving this point, it is important that I comment on a submission of learned Counsel to the Defendant. At the trial of this case, Counsel to the Defendant tendered a document titled <i>Valuation Report. </i>That document was successfully objected to by the Claimant. It was thus rejected and so marked. In his written address learned Counsel devoted a noticeable portion of his address to the rejected document and argued that it ought to be admitted. Counsel cited <i>Agbaje v. Adigun (1993)1 NWLR (Pt. 269) 216 </i>and quoted page<i> 264 </i> where the Supreme Court said as follows -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> ''Where a trial court, as in the instant case, has rejected a document but subsequently realises its error and wishes to admit same, it should not do so suo motu. It should instead call the parties to first address it on the issue of admissibility of the document.''<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">It is critical to point out, obvious though, that learned Counsel either deliberately or ignorantly quoted the Supreme Court out of context. It is apparent from the quotation that their lordships at the Supreme Court were giving direction as to what a trial Judge ought to do where he realises that a document rejected indeed ought not to be rejected and desires to admit same. In the instant case, this Court rejected that document and marked it as such. This Court has not at any time in the course of this Judgment deemed it necessary that the said rejected document will be of any utility to the just determination of this case. Once a trial Court rejects or admits a document and the Court has not deemed it necessary to reverse its position, it appears unprofessional for a Counsel to chose the address stage to cite appellate judicial authorities for the purpose of misleading the Court. In some other jurisdictions, such a conduct by a learned Counsel who ordinarily ought to know the law and guide the Court as appropriate, will attract sanction.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Finally and for the avoidance of doubt, <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">1. I declare that the Claimant is entitled to be paid severance benefit as admitted by the Defendant. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">2. I further declare that the non-payment of the Claimant retirement benefits is a breach of his conditions of service by the Defendant. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">3. I order and direct the Defendant to pay the Claimant sum of Eight Million, Seventy One thousand, Four Hundred and Sixty Naira, Eighty Five Kobo (=N=8,071,460.85) being his outstanding retirement benefit as admitted by the Defendant forthwith.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">4. Prayer for an order directing the Defendant to pay the sum of =N=5,000,000.00 (Five Million Naira Only) to the Claimant as compensation for the hardship, mental and Psychological trauma he suffered for non-payment of his entitlements since after his retirement.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">5. The Defendant is ordered to pay interest at the rate of 15% on the Judgment sum from the date of this Judgment until final liquidation.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">6. I hold that this Court has the jurisdiction to hear and determine the counter claim of the Defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">7. The counter claim of the Defendant is dismissed for lack of proof by credible and cogent evidence.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">8. The sum of =N=150,000.00 is awarded as cost of this proceedings.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">All the sums due and payable under this Judgment shall be paid within 30 days from the date of same.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:0in;mso-add-space:auto; text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">___________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p>