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The claimant, by a General Form of Complaint filed on 2nd April, 2014 approached the Court for the following reliefs: 1. The sum of Four Hundred and Twenty Thousand Naira (#420,000.00) general damages being salary owed the claimant from the month of March, 2012 to the month of November, 2013. 2. The sum of Five Hundred Thousand Naira (#500,000.00) being exemplary damages for breach of contract and psychological trauma suffered by the claimant in the hands of the defendant. The case of the claimant is that he was an employee of the defendants who after undertaking a two week training programme on security was equipped with working tools such as beret, security uniform, security boots, security baton and an identity card signed by the defendant’s chairman and deployed to a number of locations. He continued that his payment was made by hand usually at night and he received N20, 000.00 and that he was last paid on the 10th March 2012, he worked until December 2013 and stopped having run into incidentals of financial difficulties such as loss of accommodation and homeless. The defendants STATEMENT OF DEFENCE AND COUNTER CLAIM was dated and filed on 25th September, 2014. The Defendant admitted that the claimant was still under probation due to his unsatisfactory character. And stated that during the interview and training sessions, the claimant was unable to pass through the rudiment of security training as he was not physically strong during trainings, thus, he was placed on probation for six months., the defendant averred that staff on probation are not given company’s identity card until they the confirmed. The Defendant stated that the claimant’s salary was #9,000.00 a month as he was yet to be confirmed and that no staff of the company earned #20,000.00 as at that time. The, defendant averred that the claimant was dismissed from the services of the company on 30th November, 2011 for gross misconduct of perpetual state of drunkenness and that the claimant was not owed any outstanding salary as at the time he was dismissed. The defendant denied ever receiving any letter of demand from the claimant. The defendant having suffered humiliation and lost money through litigation COUNTER CLAIMS against the claimant as follows: 1. An Order of Court restraining claimant or his family or any other person from harassment, litigation or intimidation in any form whatsoever of the defendant. 2. A declaration that the defendant is not owing the claimant any outstanding debt or salary whatsoever. 3. An Order of perpetual injunction restraining the claimant, his agents, servants and his privies from further claims from the defendant. 4. A declaration that claimant was duly dismissed from the services of defendants as a staff on probation. At the trial the claimant testified as CW adopted his statement on oath which was marked Exhibit C1 and tendered two (2) other exhibits. The defendants called one witness Bassey E. Bassey the dfendants General Supervisorwho testified as DW adopted is written statement on oath marked D1 and tendered two (2) other exhibits At the close of trial parties were directed to file their final written addresses The DEFENDANT’S FINAL WRITTEN ADDRESS dated and filed on 17th June, 2016. ISSUES 1. Whether the claimant is entitled to the sum of #420,000 being salary owed him from March, 2012 to November, 2013 having not proven his case as required by law. 2. Whether the claimant is entitled to the sum of #500,000 being exemplary damages for the breach of contract and psychological trauma suffered by claimant in the hands of the defendant. ON ISSUE 1 Whether the claimant is entitled to the sum of #420,000 being salary owed him from March, 2012 to November, 2013 having not proven his case as required by law. Learned Counsel contended that abandoning one’s duty post without notice or permission owing to a person’s salary not being paid is a gross misconduct which attracts summary dismissal and nullifies any contract earlier entered between the parties. Counsel assuming but not conceding that claimant was not paid salary, argued that the proper thing the claimant could have done would have been to resign his appointment by giving the defendant notice in writing as stipulated in the appointment notice. Furthermore, that the irrational act of abandoning his duty post or absenting himself from work is an act of disobedience and insubordination. SULE v. NIGERIAN COTTON BOARD (1985) 2 NWLR (PT. 5) 17, per Obsequy, JSC; EMMANUEL NWAOBOSI v. AFRICAN CONTINENTAL BANK (1995) 7 KLR 1410 @ 1439, per Iguh, JSC. ON ISSUE 2 Whether the claimant is entitled to the sum of #500,000 being exemplary damages for the breach of contract and psychological trauma suffered by claimant in the hands of the defendant. Counsel responding in the negative, argued that claimant stopped going to work for 26 months (2 years and 2 months) before coming to court to demand for arrears of salary and that he was dismissed on 30th November, 2011 for gross misconduct of abandoning his duty post, of which claimant has not disputed or proven to the Court what he suffered or lost as a result of his negligence to duty. Furthermore, that claimant not being able to prove what he asserted cannot therefore be granted what he claims. He urged the Court to discountenance Issue 2 as claimant is not entitled to any exemplary damage against the defendant. CLAIMANT’S FINAL WRITTEN ADDRESS dated 1st July, 2016 and filed on 4th July, 2016. ISSUES 1. Whether Exhibit D1 – Bassey E. Bassey’s Statement on Oath is of any value in this case? 2. Whether the claimant was employed on the 1st of June, 2011 on probation and by the notice of appointment Exhibit D3? 3. Whether the claimant was dismissed by Exhibit D2 in November, 2011? 4. Whether the claimant is entitled to the sum of Four Hundred and Twenty Thousand Naira (#420,000.00) being salary owed him from March, 2012 to November, 2013. 5. Whether the claimant is entitled to the sum of Five Hundred Thousand Naira (#500,000.00) being exemplary damages for breach of contract and psychological trauma suffered by claimant in the hand of the defendant? ON ISSUE 1 Whether Exhibit D1 – Bassey E. Bassey’s Statement on Oath is of any value in this case? Counsel submitted that Exhibit D1 – claimant’s Statement on Oath, being an affidavit, in order to be valid, must comply with Sec. 117 of the Evidence Act. And that it is lacking in that it failed to state the full residential address of the deponent and the occupation of the deponent. Counsel assuming but not conceding that these pieces of evidence are contradictions, submitted that the contradictions border on the identity of the maker of Exhibit D1, that they are too material to be ignored, and being very material contradictions, they are fatal to the defendant’s case. WACHUKWU v. OWUNWANNE (2011) MJSC (PT. III) 87 @ 95 RATIO 2, P. 96, LINES 6-17. ON ISSUE 2 Whether the claimant was employed on the 1st of June, 2011 on probation and by the notice of appointment Exhibit D3? Counsel submitted that where the case of the defendant lends support to the case of the claimant, the trial court cannot ignore it in arriving at a conclusion as to who is entitled to the judgment of the court. I.B.N. v. A.T.M CO. (1996) 42 LRCN 1523 @ 1527 RATIO 2. It is counsel’s contention that claimant in paragraph 6 of his Statement of Facts averred that he was employed in 2010, pleaded his identity card issued to him in 2010 and signed by the defendant’s Chairman and was admitted as Exhibit C2. Yet claimant was not cross examined on the I.D. card at all, which lends to admission on the part of the defendant. I.B.N. v. A.T.M CO. (1996) 42 LRCN 1523 @ 1527 RATIO 3. Counsel submitted that claimant’s appointment letter – Exhibit D3 did not give claimant probationary appointment thereby giving credence to claimant’s evidence that he was a full time employee, who was issued with the I.D. card right from February, 2010. He argued that this contradiction in defendant’s evidence on the issue of ID card and probationary appointment of claimant is in favour of claimant. WACHUKWU v. OWUNWANNE (supra) P. 4. Counsel argued that the defendant failed to tender as an exhibit, the probationary letter of six months appointment dated 1st June, 2011 and that Exhibit D3 though dated 1st June, 2011 did not appoint the claimant on probation and not even for six months, thus, it is not relevant to this case because it was not pleaded and that parties are bound by their pleadings. FRN v. USMAN & ANOR. (2012) 3 MJSC (PT. 1) 25 @ 31 RATIO 6; OKOYE v. OBIASO (2010) 3 MJSC (PT. II) MJSC 1 @ 4 RATIO 2. ON ISSUE 3 Whether the claimant was dismissed by Exhibit D2 in November, 2011? Counsel contended that the evidence adduced by DW1 in court that claimant was dismissed by a letter goes to no issue not having been contained in his Statement of Oath which is his evidence as facts pleaded but not adduced in evidence go to no issue as they deemed to have been abandoned. I.B.N. v. A.T.M CO. (1996) 42 LRCN 1523 @ 1527 RATIO 4. Furthermore, that Exhibit D2 is not admissible and has no probative value because the letter did not show that the author who is a mere Supervisor has the power to dismiss the claimant and that there is nothing to show that the author signed the letter for the appropriate officer. ON ISSUE 4 Whether the claimant is entitled to the sum of Four Hundred and Twenty Thousand Naira (#420,000.00) being salary owed him from March, 2012 to November, 2013. Counsel submitted that the lack of denial by the defendant of non-payment and lack of evidence of the payment is in support of the claimant’s case. That the law is that where the case of the defendant lends credence or support to that of the claimant, the trial judge cannot ignore it in coming to a conclusion as to who is entitled to the judgment of the court. I.B.N. v. A.T.M CO. (1996) 42 LRCN 1523 @ 1527 RATIO 2. ON ISSUE 5 Whether the claimant is entitled to the sum of Five Hundred Thousand Naira (#500,000.00) being exemplary damages for breach of contract and psychological trauma suffered by claimant in the hand of the defendant? Counsel submitted that exemplary damages are normally awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as when it disclosed malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. ELIOCHIN (NIG.) LTD. & ORS. V. MBADIWE (1986) 1 NWLR 47; ODOGU v. THE A.G. OF THE FEDERATION (1996) 40/41 LRCN Pg. 1457 @ 1456 RATIO 2. He contended that the defendant not cross examine the claimant on the point of outrageous conduct of the defendant meaning that the defendant has admitted the said averments. I.B.N. v. A.T.M CO (supra). DEFENDANT REJOINDER ON POINT OF LAW dated 25th July, 2016 and filed on 27th July, 2016. Learned counsel submitted that the claimant’s argument and authorities cited are misleading, not applicable and distinguishable in the instant case. He noted in particular that the case of WACHUKWU v. OWUNWANNE (2011) cited by claimant and the court’s statement in regard to the general principles of law on matters of contradiction of evidence of parties, does not apply to Exhibit D1, as submitted by claimant. He urged the Court to hold that Exhibit D1 is very relevant in this matter, that it was properly filed and attested to, it has not breached any of the mandatory provision of an affidavit, and therefore, it is relevant in this case. NEPA v. EL-FANDI (1986) 3 NWLR (PT. 32) 884 RATIOS 1 & 2. ON ISSUE 2 Counsel argued that the case of Akpan V. Umoh does not apply and is distinguishable. He submitted that the defendant in paragraph 5 of the Statement of Defence did not admit to oral employment of the claimant. That claimant came for recruitment with others and after the training exercise, claimant was issued with Exhibit D2 along with other trainees on a probation period. OGUNDELE v. AGUN (2009) 40 NSCQR 427 @ 449-450. On claimant’s submission that defendant’s case lends supports to his case, defendant submitted that it does not in any way and that the onus of proof of wrongful dismissal and non-payment lies on the claimant. NIGERIAN AIRWAYS v. GBAJUKO (1992) 5 NWLR Pg. 244, 735. He urged the Court to dismiss his submissions as it lacks merit and cannot be considered. NIGERIAN MARITIME SERVICE LTD. v. AFOLABI (1978) 2 SC 79 @ 84; NWAYA v. REG. TRUSTEES RECREATION CLUB (2004) FWLR (PT. 190) 1360 RATIO 2816. Regarding claimant’s averment that claimant was not cross examined on the ID card, defendant submitted that claimant’s was duly challenged as regards the authenticity of the ID card in his possession. AIYETORO COMM. TRADING CO. LTD v. N.A.C.B. LTD (2003) 12 NWLR (PT. 834) 346 RATIO 2. Counsel urged the Court to discountenance this submission as false and misleading as there is no contradiction between the ID card and the appointment notice issued to the claimant on probation period. Defendant accepted the issuance of the appointment but denied the issuance of ID card to the claimant. He submitted that the Court cannot speculate rather it is bound to look at what is before it in delivering judgment. MASADE v. C. ISIKHUEMEN 9. (1978) 2 SC 87. ON ISSUE 3 Counsel submitted that claimant was duly dismissed for gross misconduct as he was always coming to work late and drunk, in addition to abandoning his job which claimant admitted both in his pleadings and evidence and under cross examination, which resulted to the defendant issuing an internal memo through the General Supervisor dismissing him. GAJI v. PAYE (2003) FWLR (PT. 163) P. 1 RATIOS 5 & 8. He argued that claimant’s testimony that he was earning #20,000 a month and that salaries were normally paid by hand in the night could not be substantiated as he who alleges must prove. NIGERIAN AIRWAYS v. GBAJUMO (1992) 5 NWLR (PT. 244) 735. ON ISSUE 5 On claimant’s submission that defendant’s conduct is outrageous to merit punishment for the award of exemplary damages to him, counsel contended that claimant is not entitled to any exemplary damage as he has failed to prove his case and has also failed to prove the breach of contract as required by law. ELIOCHIN (NIG.) LTD. & ORS. V. MBADIWE (supra); ODUDU v. THE A.G. OF THE FEDERATION (supra). On 29th September 2016 the parties adopted their final written addresses and adumbrated their respective positions accordingly. THE COURT’S DECISION I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant has is entitled to the reliefs sought in this suit. Before I delve into the merits of this case it is necessary to address some misconceptions harboured by both the claimant and defendant counsel as regard the evidentiary burden and uses of court processes. Now the claimant spent a lot of time taking apart the defendants witness statement on oath on account of content and form, it is worthy of note that a written statement on oath is not the same or the equivalent of an affidavit. See the case of UDEAGHA Vs. OMERGARA [2010] LPELR 3856 CA on the distinction between an Affidavit and the Witness Written Statement on Oath. Where the Court of Appeal held “Let us not forget that statements of witness which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without oral backup and which are not subjected to cross examination. It is such affidavit evidence which do not meet the requirements of …… the evidence Act that are intrinsically inadmissible”. I find that the argument of the claimant on this issue are untenable. The claimant also made heavy weather of the issue of the signature of DW, bearing in mind that the witness had identified his signature in D1 and considering the definition of signature in Blacks Law Dictionary 7th Edition at page 1387 as “a person’s name or mark by that person or at that persons direction, any name, mark or writing used with the intention of authenticating a document.” Makes the point a non-issue I find. The claimant seemed unaware of the purpose of the reply on point of law. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Defence Counsel instead was readdressing the Court on each issue raised by the claimant, a reply on point of law is not an opportunity for the defendant to re argue or re beautify his previous argument or score new point on the previous argument. Now to the merit of the case the claimant is claiming he worked for the defendants for 21 March 2012 - months without pay, and that he is entitled to his salary at N20, 000 per month for this period. That the claimant worked for the defendants is not in dispute what is to be determined is the salary the claimant earned and at what point his employment was determined. The claimant has presented no evidence as to what he received as salary, beyond his averment in C1, the claimant counsel labored under the misapprehension that when a claimants adopts his witness statement in the box the content become evidence of the content of the statement. The claimant tendered no pay slip or bank statement neither did he call a witness of colleagues to buttress or support the contention of salary of N20, 000.00 per month. This point is even more glaring when considering the claimants 2 paragraph written statement on oath the facts as contained in my particulars of claim as if the facts therein leave reproduced below; 1. “That I am the claimant in this matter and therefore conversant with the facts of the case 2. I hereby adopt the facts as contained on my particulars of claim as I the facts therein have been set in here seriatim in this written statement on oath,” This manner of practice is most undesirable as it does not afford the claimant the liberty of adopting what he swore on oath in the witness box as the oath he adopting itself adopted a document not made under oath. The defendants tendered D3 as the claimants letter of appointment bearing the claimants signed attestation indicating he was recruited at a salary of N9,0000. The defendants claimed the defendants was on probation but Exhibit D3 made no mention of probation. The signature on D3 was never put to the claimant and there is nothing before the court to lend the court to believe exhibit D3. Furthermore the defendant curiously argued that the claim leaving after not been paid for 21 month is contrary to D3 and amounts to abscondment. Looking at paragraph 4 the defendants reserved the right to “terminate the claimant without notice if found wanting” the law of reciprocity guarantees that covenants that give the employer an advantage as in a contract between the claimant and the defendants would ensure the employer the same consideration in equivalent circumstances. In addition the position of the law is that “With regard to pay, however, the obligation is a particularly strong one. This means that any failure to pay that which is contractually owing, or any particular element of it, is likely viewed as a fundamental breach of contract entitling the employee to walk out and claim constructive dismissal”. See “OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224. The defendant have argued they dismissed the claimants in November 2011 and tendered Exhibit D2 yet there is nothing in Exhibit D2 to indicate it had even been presented to any person whatsoeverD6 or D7 to indicate that they had ever been issued to the claimant. This court has held that a lack of evidence of acknowledgment on a document or notice, by way of endorsement, receipt or stamp is indication that the said document or notice was not presented/ delivered to the address or person intended or any person at all. See cases of unreported SUIT NO: NICN/CA/104/2013 AKPAN LAWRENCE IDORENYIN Vs. SKYE BANK PLC delivered on the 18th February 2016 and unreported SUIT NO: NICN/CA/14/2014 ENIANG NDEM Vs MR. NDOMA AKPET & 3 ORS delivered on the 24th February 2016. Also in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082) Where it was held that were there is an allegation that a document was sent to a person and that person denies receipt of such a document proof of receipt by that person can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document, following NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B.. I find that Exhibit D2 being undelivered is of no probative value in this matter and no weight shall be attached to it. The defendants counter claim 1. An Order of Court restraining claimant or his family or any other person from harassment, litigation or intimidation in any form whatsoever of the defendant. 2. A declaration that the defendant is not owing the claimant any outstanding debt or salary whatsoever. 3. An Order of perpetual injunction restraining the claimant, his agents, servants and his privies from further claims from the defendant. 4. A declaration that claimant was duly dismissed from the services of defendants as a staff on probation. Are all claim for which the defendants have adduced no evidence, an order for restraint, a declaration and an injunction are all equitable discretionary reliefs which require sufficient probability that the acts complained of will take place to render it unjust and unreasonable that the court should refuse to interfere. ABC LTD 7 ANOR Vs. AWOGBORO & ANOR [1996] LPELR 200 SC. And that the defendant must prove his entitlement to the declaration. None of these ingredients I find have been met, and in relation to for counter claim 4 I find in addition that the defendants have not satisfied the court that the claimants was in fact dismissed or was on probation as the court found both Exhibits D2 and D3 unreliable. The defendants counterclaim therefore fails and is dismissed. The court has no difficulty in finding that the claimant worked with the defendants; it is also the finding of this court based on the position of the law, that had the claimant walked out of the defendants after months of being owed he would be entitled to claim constructive dismissal, Relief 1 therefore succeeds. The claimant has advanced no proof to support his claim for damages, therefore relief 2 failed. For avoidance of doubt on the court’s judgment, the defendant shall pay to the claimant the sum of Four Hundred and Twenty Thousand Naira (#420,000.00) general damages being salary owned the claimant from the month of March, 2012 to the month of November, 2013. This is to be paid within 60 days thereafter the sum of 10% will accrue as interest until liquidation. This is the court’s Judgement and it is hereby entered I make no order as to costs. …………………………………… Hon. Justice E. N. Agbakoba Judge