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<p class="MsoNoSpacing"><b><u><span style="font-family:"Times New Roman","serif"">Representation:<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"">C. S. Ezem for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"">C. M. Nwankwo for the Defendants<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">By a Complaint filed on March 30<sup>th</sup> 2015, the Claimant commenced this action against the Defendants for the following claims:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">An Order mandating the 2<sup>nd</sup> Defendant to pay the sum of One Hundred and Twenty Thousand Naira (<s>N</s>120,000.00) only to the Claimant being his salary for the months of April and May 2014 at <s>N</s>60,000.00 (Sixty Thousand Naira) per month.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">An Order mandating the 2<sup>nd</sup> defendant to also pay the sum of Sixty Thousand Naira (<s>N</s>60,000.00) only to the Claimant as one month salary in lieu of notice.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">3.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">An Order mandating the 2<sup>nd</sup> Defendant to also pay the sum of One Million Naira (<s>N</s>1,000,000.00) only to the Claimant being the cost of this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">4.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">A Declaration that the assault and abuse on the Claimant by the 1<sup>st</sup> Defendant is wrongful, unlawful and illegal.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">5.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">An Order mandating the Defendants to pay the sum of Three Million Naira (<s>N</s>3,000,000.00) only to the Claimant being damages for bodily assault, humiliation, abuse of the Claimant by the Defendants.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The complaint was filed alongside other originating processes which were served on the Defendant. The Defendants entered a conditional appearance on 30<sup>th</sup> April, 2015 and on the same day filed the Defendants’ witness written statement on oath, List of witness and documents, and the Defendants’ joint Statement of Defence containing a counter-claim of the 2<sup>nd</sup> Defendant as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">a.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">One month salary of</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif""> Sixty Thousand Naira (<s>N</s>60,000.00) only to the Claimant as one month salary in lieu of notice.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">b.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">The cost of defending this suit at the cost of</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif""> Two Million Naira (<s>N</s>2,000,000.00) only</span><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-language:HE">.</span><span style="font-size: 12.0pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Hearing commenced on 30<sup>th</sup> June 2015. The Claimant testified for himself as CW1. The Defendant called two witnesses: Confidence Anyalebechi testified as DW1 while Eusebius Chidiebere testified as DW2. Hearing was concluded on 15<sup>th</sup> February, 2016, and parties were ordered to file their final addresses in accordance with the rules of this court. The Defendants’ final address was filed on 15<sup>th</sup> March 2016 vide a motion for extension of time. This was regularized by order of court on 19<sup>th</sup> April 2016. The Claimant filed his final address on 1<sup>st</sup> May 2016. Counsels adopted their respective Final Addresses on 7<sup>th</sup> June 2016. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">In the Defendants counsel’s final written address filed on 15<sup>th</sup> March 2016, counsel raised an initial objection to the appropriateness of this suit by stating that this court cannot validly entertain the issues in this suit. The reason for counsel’s objection is that the claimant cannot sue the 2<sup>nd</sup> Defendant over the wrongful act of the 1<sup>st</sup> Defendant whom he (the Claimant) has been unable to prove is a staff of the 2<sup>nd</sup> Defendant. Counsel urged the court to dismiss this suit because the Claimant could not prove a master-servant relationship between the 1<sup>st</sup> and 2<sup>nd</sup> Defendants. In the event the court overrules this objection, counsel proceeded to identify two issues for determination thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">Whether the Claimant has proved his case to be entitled to the reliefs sought in this case.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">Whether the 2<sup>nd</sup> Defendant is entitled to his counter-claim before this court.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Arguing the first issue, counsel submitted that the onus is on the Claimant to adduce evidence to prove his case before it becomes necessary for the Defendant to call evidence to rebut the Claimant’s case. See <b>NWAGA vs. REGD. TRUSTEES REVELATION CLUB (2004) All FWLR (Pt. 190) 1360</b>. Counsel submitted further that the Claimant has the burden of proving his assertion that he was beaten, treated in the hospital or that he reported to the police. This burden was not discharged by evidence as the Claimant failed to tender the medical form given by the police in court, a situation that is fatal to his suit. See Sections 135 and 136 of the Evidence Act and <b>UNION BANK vs. OZIGI (1994) 3 NWLR (Pt. 333) 385</b>. Also, counsel submitted that while the Defendants denied the averments of the Claimant, the Claimant did not deny the Defendants’ averment by filing a reply to the Statement of Defence that the Claimant was always involved in excessive alcohol intake which may have caused his ordeal. It is counsel’s argument that pleaded facts which are not denied by the opposing party is deemed admitted and the court can safely act on them. See <b>DEBS vs. CENICO LTD. (1986) 3 NWLR (Pt. 32)</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Furthermore, counsel contended that on cross-examination the Claimant contradicted paragraph 20 of his written deposition by stating it was mobile policemen and not the 1<sup>st</sup> Defendant that stopped him from work. Therefore, counsel is of the view that such inconsistency and material contradictions in the Claimant’s case makes it unreliable and the court is entitled to hold that he has not proved his case. See <b>OGUNBIYI vs. OGUNDIPE (1992) NWLR (Pt. 263) 24 at 33</b>. On the issue of the Claimant’s relief for two months’ salary, counsel argued that the Claimant did not prove that he worked for those two months, neither did he deny the Defendants’ averment in paragraph 9(b) that the Claimant absconded from work after receiving his March 2014 pay. The court was urged by counsel to deem these facts admitted because same was unchallenged and uncontroverted. See <b>LSDPC vs. NL & SF LTD (1992) 5 NWLR (Pt. 244) 653</b>. Also, the counsel submitted that from the pleadings, the Claimant could not prove that he has been sacked without notice. Counsel urged the court to resolve this issue in favour of the Defendants.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">On the second issue, counsel submitted that a counter claim is independent of the original action, in such a way that the failure of the latter does not affect its success. See <b>TOTAL NIG LTD vs. MORKAH (2002) 9 NWLR (Pt. 773) 492 at 496</b>. Counsel submitted further that the counter claimant led uncontroverted evidence that the Claimant abandoned his job without notice. Thus, the Claimant is liable to pay one month of his salary in lieu of notice. Counsel urged the court on the strength of <b>NHDS LTD vs. MUMUNI (1992) 1 NWLR (Pt. 220) 647</b> to grant the counter claim because the Claimant failed to join issues on this point which is a separate action before the court. On the last head of the counter claim, counsel submitted that the cost of Defending this suit is an event which follows the Claimant’s action which the court is required to take judicial notice of, hence the cost succeeds. Counsel urged the court to dismiss the Claimant’s suit and grant the counter-claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">In the Claimant’s final address filed on 9<sup>th</sup> May 2016, counsel identified one issue for determination as follows; whether the Claimant has proved his case against the Defendants by credible evidence. Counsel argued that that the relationship between the Defendants is one which the court is presumed to acknowledge that an employment relationship exists. Counsel referred to Section 167 Evidence Act, <b>ANYANWU vs. UZOWUAKA (2009) 7 MJSC 1 at 23</b> and paragraph 4, 21 of the Statement of Facts in support of his argument. Again, counsel is of the opinion that DW1 under cross-examination corroborated the Claimant’s evidence that drivers from the 2<sup>nd</sup> Defendant including the Claimant were attached to the chairman. DW2 affirmed that he lived at 9F Sani Abacha Road GRA Port-Harcourt, the residence/guesthouse of the Managing Director of the 2<sup>nd</sup> Defendant, Chief Tony Chukwu. Again, counsel pointed to the fact DW1 stated in evidence of his knowledge that the medical report of Lifetime Medical Centre was not issued to the Claimant. Counsel submitted further that the filing of a joint statement of defence and being represented by the 2<sup>nd</sup> Defendant’s lawyer evinces cooperation of the Defendants against the Claimant. Also, in paragraph 28 of the Statement of Facts, the Claimant averred that a complaint letter was written and delivered to the 2<sup>nd</sup> Defendant over the conduct of the 1<sup>st</sup> Defendant, to which the 2<sup>nd</sup> Defendant remained silent over. Counsel referred to <b>ZENON PETROLEUM vs. IDRISIYYA LTD (2006) 8 NWLR (Pt. 982) 221 at 248</b> where it was held inter alia that silence in circumstances where a reply is expected raises an irrebuttable presumption of admission by conduct of facts alleged. From the foregoing, counsel urged the court to conclude that the 1<sup>st</sup> Defendant is the 2<sup>nd</sup> Defendant’s staff.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">It is counsel’s further submission relying on <b>FAWEHINMI vs. NBA (NO.2) (1989) 2 NWLR (Pt. 105) 558</b> that relevant evidence is admissible. In this regard, counsel submitted that Exhibit B which the Defendants’ counsel objected to is admissible as same was pleaded. Counsel urged the court to dismiss the Defendants’ counsel objection to it and hold that the said exhibit is proper in law.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Further, counsel argued that Exhibit A identified the 1<sup>st</sup> Defendant as a Personal Assistant to the 2<sup>nd</sup> Defendant’s chairman. It alleged also that the chairman heard the beating of the Claimant and impliedly consented to it and it was he who ordered that the Claimant be taken to the company’s retained clinic. This letter was not replied and counsel urged the court relying on ZENON’s case to hold that the facts in Exhibits A and B are deemed admitted and by legal implication proved. More so, it is the argument of counsel that the burden of proof shifts in a case, where a Claimant alleging a fact, proves it the burden shifts to the Defendant to adduce evidence in rebuttal. In the instant case, it is the opinion of counsel that having averred and deposed to the fact that he was owed salary, the burden of proving otherwise shifted to the Defendants, which they failed to discharge. See <b>OLOWU vs. OLOWU (1985) 3 NWLR (Pt. 13) 372 at 386</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">With regards to what the Defendants counsel termed as material contradictions in the case of the Claimant, counsel submitted that contradiction occurs when a party asserts the opposite of his previous assertion and not when there are minor discrepancies in details as seen in CW1’s evidence over the location of the 1<sup>st</sup> Defendant when his staff ID card was seized from him. See <b>OGALA vs. OGALA (1991) 2 NWLR (Pt. 175) 509</b>. Counsel urged the court to grant the Claimants all his reliefs.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 2in; text-indent: 0.5in;"><b><u><span lang="EN-GB" style="font-size:12.0pt; font-family:"Times New Roman","serif"">Court’s Decision<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Having heard the submissions of the learned counsels to the parties, I will now determine the case before me. In determining the case, I will adopt the </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">two issues formulated by the defendants counsel for determination in his final written address. The issues are-<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo4"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Times New Roman", serif;">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Whether the claimant has proved his case to be entitled to the reliefs sought in this case.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo4"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Times New Roman", serif;">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Whether the 2<sup>nd</sup> defendant is entitled to its counter-claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">To be able to resolve these two issues, there is need to examine the evidence adduced by the parties in support of their cases. The claimant, as the only witness in his case, testified that he was employed as a driver by the 2<sup>nd</sup> defendant and he worked from 30<sup>th</sup> April 2013 to 17<sup>th</sup> May 2014. His salary per month was <s>N</s>60,000.00. At the time of his employment, the claimant produced one Ibo Abraham who stood as his guarantor and who signed documents to guarantee the claimant’s good behavior in the 2<sup>nd</sup> defendant’s employment. The 1<sup>st</sup> defendant is the Personal Assistant to the Managing Director of the 2<sup>nd</sup> defendant, one Chief Tony Chukwu. The claimant said the way the 1<sup>st</sup> defendant treats the workers without restraint from the 2<sup>nd</sup> defendant’s management, gave him the impression that the 1<sup>st</sup> defendant was the Head of Personnel of the 2<sup>nd</sup> defendant. At about 5.30 pm on 17<sup>th</sup> May 2014, while at one of the 2<sup>nd</sup> defendant’s premises at No.9F, Sani Abacha Road, GRA II, Portharcourt, the 1<sup>st</sup> defendant summoned him into the office but on getting inside the office, the 1<sup>st</sup> defendant questioned him on why he delayed in responding to the call. While trying to explain himself to the 1<sup>st</sup> defendant, the 1<sup>st</sup> defendant slapped him and beat him up severely resulting to the claimant losing consciousness. The claimant said he had reasons to believe the 1<sup>st</sup> defendant also hit him with a bottle. Although there were some policemen on duty in the 2<sup>nd</sup> defendant’s premises at that time, none of them attempted to stop the 1<sup>st</sup> defendant from beating him up. Before losing consciousness, he heard the 1<sup>st</sup> defendant shout at him to leave the premises and never to return.</span><span style="font-size: 12pt; font-family: "Times New Roman", serif;"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The claimant said he regained consciousness in Life Time Medical Centre, one of the 2<sup>nd</sup> defendant’s retained hospitals, at night but he was discharged the following day. On leaving hospital, he reported the matter at Police Special Area Division, Rumuokoro, Portharcourt on 18/5/2014. The police gave him a medical report form to any government hospital but the he could not be treated in the hospital he went to because he could not afford the <s>N</s>15,000.00 demanded before he can be treated. As a result, he returned to his village in Benue state where he was treated by local herbs men. Before he left for Benue State, he contacted the 2<sup>nd</sup> defendant through its MD, Chief Tony Chukwu. After narrating his experience to him, the MD told the claimant to return to work. He returned to work as directed but the 1<sup>st</sup> defendant seized his staff identity card and warned him not to return to the 2<sup>nd</sup> defendant company. Because of this warning from 1<sup>st</sup> defendant, he never made any attempt to return to work. He believed that the seizure of his identity card was termination of his employment. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The claimant said his salary of April 2014 was not paid to him and no salary was paid to him before and after his employment was terminated in May 2014. While he worked with the 2<sup>nd</sup> defendant, his salaries were paid into Eco bank account number 2621025650. He also said he suffered severe pain, psychological distress, humiliation and disgrace as a result of the assault of the 1<sup>st</sup> defendant in his capacity as the P/A of the MD of the 2<sup>nd</sup> defendant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The defendants DW1, who said he is the Admin Manager of the 2<sup>nd</sup> defendant, told thts court that the claimant was a casual staff of the 2<sup>nd</sup> defendant and he abandoned his work when he received his March 2014 salary. DW1 further said the claimant refused to produce the two required guarantors since the time of his employment and the guarantors forms given to him have not been returned till now. As a result, no appointment letter or identity card was issued to the claimant. The claimant accordingly remained a casual staff of the 2<sup>nd</sup> defendant. DW1 testified further that the 2<sup>nd</sup> defendant has only one office which is at KM17, PH-Aba expressway Portharcourt. The address at No.9F, Sani Abacha Road, GRA II, Portharcourt is a personal residence of one of the directors of the 2<sup>nd</sup> defendant. The 1<sup>st</sup> defendant is a personal domestic staff to Tony Chukwu, one of the Directors of the 2<sup>nd</sup> defendant. The 1<sup>st</sup> defendant has no official responsibility to do with the 2<sup>nd</sup> defendant nor is he a management staff of the 2<sup>nd</sup> defendant. The 1<sup>st</sup> defendant also does not have authority to employ or sack any staff of the 2<sup>nd</sup> defendant<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">According to DW1, the claimant is always engaged in excessive drinking of alcohol and most times empty bottles of alcohol were found in the vehicles driven by the claimant. The claimant was not rushed to the hospital as a result of any assault on him by the 1<sup>st</sup> defendant. The 2<sup>nd</sup> defendant became aware of the claimant’s alleged illness when he called Tony Chukwu to apologize for his absence from work for many weeks. Tony Chukwu cautioned him and told the claimant to resume work the following day with an apology letter but the claimant instead went to the private residence of Tony Chukwu at No.9F, Sani Abacha Road, GRA II, Portharcourt to accuse the 1<sup>st</sup> defendant of being the one who reported his drinking habits to Tony Chukwu. A misunderstanding ensued between the claimant and the 1<sup>st</sup> defendant in the process. At that time, Tony Chukwu has already gone to the 2<sup>nd</sup> defendant’s office at KM17, PH-Aba Road.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The 2<sup>nd</sup> defendant did not receive any complaint or official report from the claimant of any assault on him by the 1<sup>st</sup> defendant. The claimant did not also report to police as no police has invited either of the defendants in respect of any alleged assault. The 2<sup>nd</sup> defendant at no time communicated to the claimant that he was sacked. The claimant has no identity card which was collected from him. He abandoned his work without notice. When the 2<sup>nd</sup> defendant discovered the continued absence of the claimant from work, its Admin Manager called the claimant to report to work on 9/6/2014 but what the 2<sup>nd</sup> defendant received was a letter from the claimant’s solicitors demanding for compensation. Tony Chukwu called the claimant to come to the office to sort out the issues in the letter but the claimant refused to show up. The claimant’s salaries were paid up to when he stopped work in March 2014. The claimant did not work in April and May 2014. The defendant does not owe the claimant any salary. The management of the 2<sup>nd</sup> defendant did not stop the claimant from work but the claimant by himself absconded from work. DW1 said in conclusion that the claimant is not entitled to his claims.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">DW2 is the 1<sup>st</sup> defendant. He said he is a personal domestic aide to one of the directors of the 2<sup>nd</sup> defendant whose personal residential home is at No.9F, Sani Abacha Road, GRA II, Portharcourt. He has no official responsibility in the 2<sup>nd</sup> defendant nor does he have any authority to summon the claimant. He did not summon the claimant in the 2<sup>nd</sup> defendant’s office and he at no time assaulted the claimant. The claimant was not rushed to the hospital as a result of any assault by him. He also never shouted on the claimant to leave and never return as he has no such powers as a domestic staff. According to DW2, the claimant was always engaged in excessive drinking of alcohol. On the day the claimant was unconscious, he was not around but heard the claimant became unconscious as a result of his excessive drunkenness and was rushed to the hospital where he was revived. Because he has warned the claimant to desist from drinking alcohol and has threatened to report the claimant to the director if ever caught drinking, the claimant had animosity towards him. The claimant did not report any complaint to the police as no police has invited him over the claimant’s complaint. DW2 also said he did not collect any identity card from the claimant and he has no power to employ or sack staff of 2<sup>nd</sup> defendant<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size: 12pt; font-family: "Times New Roman", serif;">ISSUE ONE</span></u></b><span style="font-size: 12pt; font-family: "Times New Roman", serif;">:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In relief (a), the claimant sought payment of the sum of <s>N</s>120,000.00 being his April and May 2014 salary at <s>N</s>60,000.00 per month. The claimant had said in his evidence that his salary was <s>N</s>60,000.00 per month. His salary for April 2014 was not paid to him and no salary was paid to him in May 2014 when his employment was terminated. But the defendants contended that the claimant abandoned his work when he received his March 2014 salary. DW1 stated that the claimant’s salaries were paid up to when he stopped work in March 2014 and since the claimant did not work in April and May 2014, the 2<sup>nd</sup> defendant did not owe the claimant any salary. By the evidence of DW1, the defendants have clearly admitted that no salary was paid to the claimant for April and May 2014. The reason however is that the claimant abandoned his employment when he received his March 2014 salary. In effect, the defendants’ case is that the claimant did not work in the 2<sup>nd</sup> defendant’s employment in April and May 2014. Therefore, for the claimant to be entitled to payment of his salary for April and May 2014, he has to show that he worked in the 2<sup>nd</sup> defendant’s employment in April and May 2014. The claimant said he worked in the 2<sup>nd</sup> defendant’s employment from 30<sup>th</sup> April 2013 to 17<sup>th</sup> May 2017. On that 17<sup>th</sup> May 2014, he was beaten by the 1<sup>st</sup> defendant at No.9F, Sani Abacha Road, GRA II, Portharcourt, and left unconscious until he was revived in the hospital. The 1<sup>st</sup> defendant, while beating him, told him to “leave the premises and never to return”. He however returned to work as directed by Chief Tony Chukwu but the 1<sup>st</sup> defendant seized his staff identity card and warned him not to return to the 2<sup>nd</sup> defendant company. He believed that the seizure of his identity card was termination of his employment. Under cross examination, the claimant said it was on Monday 26<sup>th</sup> May 2014 he went to the 2<sup>nd</sup> defendant’s office to resume when his identity card was seized and he was turned away. From his evidence, the claimant appears to be saying his employment terminated either on 17<sup>th</sup> May 2014 or 26<sup>th</sup> May 2014. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In his deposition, the claimant stated that his employment was terminated by the 1<sup>st</sup> defendant who seized his identity card and warned him not to return to the 2<sup>nd</sup> defendant company. The claimant also stated that because of the warning from 1<sup>st</sup> defendant, he never made any attempt to return to work as he takes the seizure of his identity card to mean termination of his employment. During cross examination, however, the claimant stated that on Monday the 26<sup>th</sup> May 2014, he went to the 2<sup>nd</sup> defendant’s office at KM17, PH-Aba Road to resume. At the gate, the gate man and some mobile policemen demanded for his Identity card which he gave to them. At that point, they told him management of the 2<sup>nd</sup> defendant has instructed them to prevent him from entering the premises and they pushed him out of the 2<sup>nd</sup> defendant’s premises. The claimant said that was how his appointment was terminated. The evidence-in-chief of the claimant and what he said under cross examination as to the termination of his employment were clearly conflicting. While he said it was the 1<sup>st</sup> defendant who seized his identity card and warned told him not to return to the company, in another breath, he said it was the gate man and mobile policemen who seized his identity card and pushed him away. In fact, under cross examination, the claimant said the 1<sup>st</sup> defendant was not even there at the gate the day he was allegedly prevented from entering the gate. From all these, it is obvious the claimant lied on oath in his deposition when he said it was the 1<sup>st</sup> defendant who seized his identity card. I cannot now believe the claimant that anybody seized his identity card at all or that he was prevented from coming to work. From the facts, I tend to agree with the defendants that the claimant’s employment was never terminated by the 2<sup>nd</sup> defendant but the claimant himself decided to stop attending work. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Furthermore, I find that the 1<sup>st</sup> defendant whom the claimant said seized his identity card was not even a staff of the 2<sup>nd</sup> defendant. The defendants averred that the 1<sup>st</sup> defendant is a personal domestic staff to Tony Chukwu, one of the Directors of the 2<sup>nd</sup> defendant, and that the 1<sup>st</sup> defendant has no official responsibility to do with the 2<sup>nd</sup> defendant neither is he a management staff of the 2<sup>nd</sup> defendant. The defendants also averred that the 1<sup>st</sup> defendant does not have authority to employ or sack any staff of the 2<sup>nd</sup> defendant. The claimant did not challenge these averments nor did he supply any evidence to show that the 1<sup>st</sup> defendant was an employee of the 2<sup>nd</sup> defendant. The claimant described the 1<sup>st</sup> defendant in paragraph 4 of his statement of facts as the personal assistant to the Chairman of the 2<sup>nd</sup> defendant, Chief Tony Chukwu and in paragraph 27, the claimant averred that the 1<sup>st</sup> defendant assaulted him in his capacity as the personal assistant to the chairman of the 2<sup>nd</sup> defendant. All that the claimant said about the 1<sup>st</sup> defendant is that the 1<sup>st</sup> defendant was the personal assistant to the chairman of the 2<sup>nd</sup> defendant. The claimant never said anywhere in his case that the 1<sup>st</sup> defendant is an employee or staff of the 2<sup>nd</sup> defendant. taking into view the status of the 1<sup>st</sup> defendant as given by the claimant and the defendants own position of the status of the 1<sup>st</sup> defendant in relation to the 2<sup>nd</sup> defendant employment, it is clear to me that the 1<sup>st</sup> defendant was not an employee of the 2<sup>nd</sup> defendant. He was just a personal servant or assistant to one Tony Chukwu, who is said to be MD or a director of the 2<sup>nd</sup> defendant. Therefore, the claimant’s allegation that he considered his employment to have been terminated by a person he knew was a mere personal assistant to the chairman/MD of his employer is ridiculous. The claimant had no reason whatsoever to consider his employment terminated by the 1<sup>st</sup> defendant who is not a staff of the 2<sup>nd</sup> defendant. Similarly, if at all such an incidence of seizure of his identity card took place in such an unconventional manner, the claimant is expected to inquire from the management of the 2<sup>nd</sup> defendant before concluding that his employment had been terminated. The defendants said the claimant did not report the incidence and that at no time did it officially terminate the claimant’s employment. The claimant did not challenge these facts nor did he produce evidence of complaint to the 2<sup>nd</sup> defendant. In paragraph 21 of his statement of facts, the claimant stated clearly that he never made any attempt to return to work after the seizure of his identity card. In view of these facts, I find that the claimant’s employment was not brought to an end by the act of his employer, the 2<sup>nd</sup> defendant. The claimant decided to stop work at his own will. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The burden placed on the claimant to prove that he worked in the 2<sup>nd</sup> defendant for the months of April and May 2014 have not been discharged. The claimant, other than the incidence of 17<sup>th</sup> May 2014, did not say anything about the duties he performed for the 2<sup>nd</sup> defendant in April 2014 or in May 2014 up to the said 17<sup>th</sup> May. Even on the said date, it is observed that the alleged incident did not happen in the premises of the 2<sup>nd</sup> defendant. Although the claimant alleged that the 1<sup>st</sup> defendant assaulted him in the 2<sup>nd</sup> defendant’s premises at No.9F, Sani Abacha Road, GRA II, Portharcourt, this address was later shown to be the private residence of Tony Chukwu. DW1 explained that the 2<sup>nd</sup> defendant’s only office is at KM17, PH-Aba expressway, Portharcourt and the address at No.9F, Sani Abacha Road, GRA II, Portharcourt is the personal residence of one of the directors of the 2<sup>nd</sup> defendant. The claimant corroborated this fact under cross examition when he said the 2<sup>nd</sup> defendant’s office is at KM 17, PH-Aba Road and he knows that Chief Tony Chukwu has his private residence at No.9F, Sani Abacha Road, Portharcourt. That is to say the location where the claimant appears to say he was last on duty in the 2<sup>nd</sup> defendant’s employment in May 2014 was not the claimant’s work place. The bottom line is that the claimant has not shown that he attended work in the 2<sup>nd</sup> defendant in April and May 2014.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The claimant having failed to show that he actually worked in the 2<sup>nd</sup> defendant in April and May 2014 coupled with the fact that it was the claimant who left the job on his own, it is my view that he is not entitled to the salaries for April and May 2014.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">It is in view of the foregoing findings that the claimant’s claim for one month’s salary in lieu of notice sought in relief (b) will similarly fail. The 2<sup>nd</sup> defendant did not terminate the claimant’s employment. It was the claimant who left the employment by himself. The issue of being given notice of termination or payment of salary in lieu thereof did not arise at all. Besides this, the claimant did not prove the 2<sup>nd</sup> defendant’s condition of service which requires notice of termination or payment in lieu of notice. No basis was shown at all for the claim. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The claimant also claims the sum of <s>N</s>1,000,000.00 which he said is the cost of this suit. The claimant neither gave any particulars of this claim nor any evidence in proof of it. I cannot also grant this claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In reliefs (e) and (f), the claimant sought a declaration that the assault on him by the 1<sup>st</sup> defendant is wrongful and an order to the defendants to pay him the sum of <s>N</s>3,000,000.00 as damages. According to the claimant, the alleged assault on him was carried out by the 1<sup>st</sup> defendant. There is however no employment relationship between the 1<sup>st</sup> defendant and the claimant. The issue of the 1<sup>st</sup> defendant’s assault of the claimant definitely does not arise from or connected to any labor matter between them as to cloth this court with jurisdiction over the claim. Any claim against the 1<sup>st</sup> defendant in this case is incompetent as this court does not have jurisdiction to entertain it. Similarly, I have observed earlier that there is no employment relationship between the 1<sup>st</sup> defendant and the 2<sup>nd</sup> defendants. The 2<sup>nd</sup> defendant cannot, in any way, be vicariously liable for the alleged act of the 1<sup>st</sup> defendant. Therefore, reliefs (e) and (f) also fail.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">I resolve issue one against the claimant. He is not entitled to any of his claims as they do not have merit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size: 12pt; font-family: "Times New Roman", serif;">ISSUE TWO</span></u></b><span style="font-size: 12pt; font-family: "Times New Roman", serif;">:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The 2<sup>nd</sup> defendant’s counter claim against the claimant are for the sum of <s>N</s>60,0000.00 being on</span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">e month salary </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">in lieu of notice and the sum of <s>N</s>2,000,000.00 being t</span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">he cost of defending this suit. My earlier verdict on the claimant’s reliefs (b) and (c), which have the same terms as the counter claim, also affect the counter claim. The 2<sup>nd</sup> defendant too </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">did not prove the condition of service which requires notice to be given by either party to terminate the contract or payment in lieu of notice. The 2<sup>nd</sup> defendant also did not give any particulars of the cost sought nor did it proffer any evidence in proof of it. The counter claims fail. Issue two is resolved against the 2<sup>nd</sup> defendant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In the final result of this case, I find that the claims of the parties lack merit. The suit is dismissed. Parties are to bear their costs.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Judge<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Times New Roman","serif""> </span></p>