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The claimant filed this Complaint on claiming against the defendant 22nd January, 2013 as follows: Payment of 18 months’ salary owed the claimant by the defendant which sums up to (#1,584,536) One Million, Five Hundred and Eighty four Thousand, Five Hundred and Thirty Six Naira only. The Claimant’s Case The Claimant averred that he was employed as a lecturer on contract by the defendant through a written and binding agreement between them and dated 19th September, 2006. At the expiration of the said agreement, the parties, by conduct, entered into a fresh employment agreement until the defendant defaulted in payment, necessitating this suit taken out by the claimant to recover the arrears of his salaries. The defendant’s STATEMENT OF DEFENCE AND COUNTER CLAIM were dated and filed on 7th February, 2013. The Defendant deny that she (the defendant) is indebted to the claimant to any amount of money as claimed and that the claimant is a contract officer whose contract of service ended in August, 2007 by a letter dated 5th September, 2007, of which the contract appointment was not renewed and claimant did not apply for the renewal of same. The defendant averred that the letters from the claimant’s solicitors were received by the respondent and that does not entitle the claimant to any monies from the defendant. Defendant stated that from March, 2008 to August, 2009, the claimant was not a contract staff of the defendant, and therefore not entitled to any claim of salary made for this period. COUNTER CLAIM 1. That apart from their prior agreement, the defendant wrote to the claimant a letter dated September, 2006 renewing his contract and informing the claimant that his contract terminates in August, 2007. 2. That the claimant was supposed to collect his salary only to the month of August, 2007 when his contract terminates; but the claimant collected salary for 6 months after the termination of his contract appointment from September, 2007 to February, 2008 when it was discovered, despite the claimant knowing fully well that is contract has ended. 3. That the salaries collected by the claimant for the six months totaling #514,499.64 (Five Hundred and Fourteen Thousand, Four Hundred and Ninety Nine Naira, Sixty Four Kobo) are unearned salaries which the defendant/counterclaimant wants a refund. 4. The defendant therefore counterclaim on the above premises against the claimant was follows: a. Payment of refund of the sum of #514,499.64 excess or unearned salary. b. 10% interest from the day of February, 2008 to the day of judgment. c. 10% interest from the day of judgment till final liquidation. The CLAIMANT’S DEFENCE TO COUNTER-CLAIM was dated 21st February, 2013 and filed on 25th February, 2013. The claimant stated that the contract of employment Agreement took effect from 3rd October, 2006 in accordance with the terms of the relevant agreement dated 19th September, 2006 and signed by both the Vice Chancellor and the Registrar on 3rd October, 2006. The claimant averred that the letter dated 5th September, 2006 cannot be said to have renewed a contract that was yet to take effect on the 3rd of October, 2006 when it was signed by the defendant, the claimant averred that the contract was not terminated and the salaries earned within the period was legitimately earned by the claimant since the contract was not terminated but renewed by the conduct of the parties. Therefore, that the defendant is estopped from denying the existence of the renewed contract by conduct of the parties. He stated that a Calendar year will start running from 3rd October, 2006 to end in 3rd October, 2007, thus, it is wrong for the defendant to claim that the contract terminated or expired in August, 2007. Denying paragraph 5 of the Statement of Defence, claimant averred that salaries earned after August, 2007 by the claimant were worked for and legitimately earned under both the old and renewed contract of Agreement by conduct of the parties, therefore not refundable and claimant is not in any way whatsoever indebted to the defendant. WHEREOF, the counter-claimant counter claims against the defendant as follows: #5,000,000.00 (Five Million Naira) exemplary damages for causing the counter-claimant psychological and mental trauma and torture. At the trial the claimant testified as CW, adopted his statement on oath which was marked Exhibit C1 and proceeded to tender 5 other documents. Under cross examination CW testified that although D1 stated the contract was to determine on the 26th August 2007, he was expected to apply for a renewal and that Clause 5 of D1is the contract for renewal. That the defendant did not give him a letter of renewal although he applied, he further testified that he worked until he resigned on the 3rd September 2009, and that the University allowed him to teach until he resigned, without a letter of renewal, re stating that he had applied and received no response. After August 2007, he continued working even setting questions for exams, and supervising projects. While the defendants called one witness Gift Asien the Legal Officer of the defendants who testified as DW, adopted her witness statement on oath and tendered one other document. Under cross examination DW testified that Exhibit C3 the letter of renewal was signed by the defendant on the 3rd October 2006, that the date of commencement of the contract was stated therein as 19th September 2006 and it was for one year and would terminate in August 2007. She further testified that the date of the defendant signing was not the date of commencement but that the delay may have been due to executive purposes. As regards Exhibit C6, the claimants Application for renewal the appointment, DW testified that they (the defendants) never received it and if they had it would have been stamped as received by the Vice Chancellor’s office for consideration for the Dean to recommend. At the close of trial the parties were directed to file their written addresses in line with the rules of this court. The WRITTEN ADDRESS OF DEFENDANT was dated 23rd June, 2016 and filed on 24th June, 2016. Wherein he formulated the following ISSUES 1. Whether the claimant has proved his case to be entitled to the reliefs sought. 2. Whether an employee can determine contract of his employment and renew same unilaterally. 3. Whether the defendant/counter is entitled to refund of unearned salary paid to claimant after the contract has ended. 4. Whether the court can compel an employer to pay and keep an employee whose contract services has ended. 5. Whether the claimant has proved his claim for psychological and mental trauma and torture and is entitled to #5 Million damages. ON ISSUE 1 Whether the claimant has proved his case to be entitled to the reliefs sought. Learned defence Counsel Moses Ivi Esq. submitted that the claimant’s appointment is distinguishable with that of regular staff and therefore he is not supposed to continue teaching or working when his appointment has not been renewed; and that the burden of proof is on the party that asserts. SEC. 131 & 132 EVIDENCE ACT, 2011 as amended. Defence Counsel argued that the claimant never called his Head of Department to verify or corroborate his claim, when asked if he supervises students project and sets examination questions, he never tendered any project supervised by him nor tender examination question or answer/marking scheme for that period. Thus, the inference is that the claimant never taught or lectured after August, 2007. FIRCHARLES ORGAN & ORS. v. N.I.N.G. LTD. & ORS. (2013) 5-7 MJSC (PT. II) 173 @ 202 HOLD 7. He submitted that it is the duty of the claimant to place before the Court his contract of employment that entitles him to earn a salary after August, 2007 and to show how much such terms are breached by the defendant. AMOBU v. AMODE (1990) 3 NWLR (PT. 1590; IWU CHUKWU v. NWIZU (1994) 3 LRCN 70; KATTO v. CBN (1999) 69 LRCN 1119 @ 1136. ON ISSUE 2 Whether an employee can determine contract of his employment and renew same unilaterally. Counsel to the defendants submitted that it is common knowledge that it is the employer who determines the condition of service of his workers and that the Senior staff condition of service of the defendant specifically provide for appointment on contract. ON ISSUE 3 Whether the defendant/counter claimant is entitled to refund of unearned salary paid to claimant after the contract has ended. Learned Defendant’s Counsel submitted that the claimant is not entitled to the salaries collected between the months of September, 2007 and March, 2008 because the salary rests on nothing. MILITARY ADMINISTRATOR OF BENUE STATE v. ULEGEDE (2001) 91 LRCN 3044 @ 3064 E; U.A.C. LTD v. MCFOY (1961) 3 ALL ER 1160. It is counsel’s contention that having received monies for the six months illegally when his contract ended, the claimant is entitled to return same, he urged the Court to make an order for the refund. ON ISSUE 4 Whether the court can compel an employer to pay and keep an employee whose contract services has ended. Counsel to the defendants submitted that the Court cannot make an order it cannot supervise, therefore, asking the Court to make an order that his contract be extended beyond August, 2007 is against the principles of law and equity. ON ISSUE 5 Whether the claimant has proved his claim for psychological and mental trauma and torture and is entitled to #5 Million damages. Defence Counsel submitted that the claimant never proved nor gave evidence of cruelty, malice, fraud, disregard to law and blackmail, as pleaded in paragraph 1 (a) of his counter claim, thus, the fact that the defendant did not Honour claimant’s contract appointment is not sufficient to cause trauma, therefore, the claimant is not entitled to any claim for trauma. MAJA v. OKE (2013) VOL. 2-3 MJSC (PT. 1) 31 @ 50, PARAS. D-E. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 12th July, 2016. Wherein the claimants framed four issues for determination; ISSUES 1. Whether the initial written appointment of the claimant by the defendant was based on the “CONTRACT APPOINTMENT AGRREMENT FORM” dated the 19th day of September, 2006, Exhibit C3 or on the renewal of contract appointment dated the 5th day of September, 2006, Exhibit D1 or on both? 2. Whether the claimant has proved his case to be entitled to the reliefs sought? 3. Whether the claimant is entitled to exemplary damages of Five Million Naira (#5,000,000.00) based on his counter claim. 4. Whether the defendant has a valid counter claim properly so called and whether she has proved same? ON ISSUE 1 Whether the initial written appointment of the claimant by the defendant was based on the “CONTRACT APPOINTMENT AGRREMENT FORM” dated the 19th day of September, 2006, Exhibit C3 or on the renewal of contract appointment dated the 5th day of September, 2006, Exhibit D1 or on both? Learned counsel to the claimant James I. Ofem Esq. submitted that when on 11th may, 2016, in answer to cross examination, DW1 confirmed defendant’s admission of paragraph 2 of claimant’s Statement of Facts, it follows that a fact admitted need no further proof. REPTICO S.A. GENEVA v. AFRIBANK NIGERIA PLC (2013) LPELR-20662 (SC) RATIO 2. Furthermore, that the defendant is bound by this admission because parties are bound by their pleadings. NNAJI v. LUKA MADAKI & ANOR. (2012) LPELR-200097 (CA) RATIO 7. He submitted that the defendant’s averment in paragraph 2 of the Statement of Defence and Counter claim to the effect that the claimant will be put to the strictest proof of paragraph 2 of the Statement of Facts is not a valid defence in law. NIPOST v. MUSA (2013) LPELR-20780 (CA) RATIO 10. He submitted that the law is that the party that asserts it served the other party a document has to prove such service. SPLINTER NIG. LTD. & ANOR. V. OASIS FINANCE LTD. (2013) LPELR-20691(CA) RATIO 9; REPTICO S.A. GENEVA v. AFRIBANK NIGERIA PLC (2013) LPELR-20662 (SC) RATIO 3. ON ISSUE 2 Whether the claimant has proved his case to be entitled to the reliefs sought? Claimant counsel answered this in the affirmative submitting that the claimant has proved his case having testified in proof of his Statement of Facts without the defendant filing any valid Statement of Defence and Counter claim. He contended that the defendant’s Statement of Defence and Counter Claim filed on 7th February, 2013 is not competent because it was not properly signed by the defendant’s counsel. SLB CONSORTIUM v. NNPC (2011) 3-4 MJSC 145 @ 148-151.He pointed out that in paragraphs 4, 5, 6, 7, 10, 11, 12, 13 and 14 of the Claimant’s Defence to Counter Claim, claimant pleaded facts of the renewal of the contract by conduct. Also, in paragraphs 4, 5, 7, 9, 10, 11, 12, 13 and 16 of his Written Statement on Oath, Exhibit C2, testified in proof of the averments establishing the renewal of the contract by conduct, however, it is noteworthy that these averments in the defense to the defendant’s Counter claim were not challenged by the defendant when it was highly necessary to have done so. AJERO v. UGORJI (1999) 71 LRCN 2875 @ 2882 RATIO 12, per Onu, JSC @ 2904 BC; NZE v. ONYAECHUGWO (2013) LPELR-20678 (CA) RATIOS 3 & 4. Furthermore, that defendant having also failed to cross examine the claimant on this issue of renewal of contract by conduct of the parties when she had opportunity to do so means that she has conceded to the said fact and claimant therefore, needs no further proof of same. MOBIL PRODUCING NIG. UNLTD. V. MONOKPO (NO. 2) FWLR (PT. 78) 1210 @ 1218 RATIO 6. Claimants Counsel submitted that in civil proceedings, it is the party that will fail if no further evidence is called that has the burden of proof. KARA v. WASSAH (2001) PT. 78 FWLR 1191 @ 1195 RATIO 9. ON ISSUE 3 Whether the claimant is entitled to exemplary damages of Five Million Naira (#5,000,000.00) based on his counter claim. Claimant’s Counsel submitted that contrary to the defendant’s opinion that the claimant adopted a novel procedure by counter-claiming against the defendant’s counter claim, that this procedure is very normal and is provided for in Order 9 Rule 1 of the National Industrial Court Rules, 2007. OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (PT. 220) 647 @ 658 RATIOS 12 – 16; NAL MERCHANT BANK PLC v. ONU (2001) 5 NWLR (PT. 705) 11 @ 12 & 13 RATIOS 1 & 2.He contended that the defendant by paragraph 4.26 of her Written Address admitted that she filed no defence to the claimant’s Counter claim and that the legal consequence of not filing a defence to counter claim is that, the facts as averred by counter claim have been admitted. AKHIGBE v. PAULOSA (NIG.) LTD. (2008) ALL FWLR (PT. 423) 1412 @ 1415 RATIO 6. Furthermore, that where there is sufficient evidence to support a counter claim which is not challenged, the onus of proof on the defendant is on a minimum of proof. APROFEIN ENGINEERING CONSTRUCTION (NIG.) LTD. v. BIGOURET (2012) ALL FWLR (PT. 622) 1740 @ 1741 RATIO 5. ON ISSUE 4 Whether the defendant has a valid counter claim properly so called and whether she has proved same? Counsel to the claimant, answering this issue in the negative submitted that a valid claim can be founded only on a competent process brought before the Court in accordance with the due process of the law. The defendants filed their REJOINDER ON POINTS OF LAW dated 20th July, 2016 and filed on 21st July, 2016 On the issue of pleadings and admissions, counsel submitted that under the law of pleadings, what is to be pleaded is facts not evidence so the evidence of the witness DW1 that Exhibit CW2 and DW1 both from the contract of appointment and unchallenged ought to be admitted, and that it is the employer that determines the condition of service. ESSAYS ON CIVIL PROCEEDINGS VOL. 1 by Obi Okoye, P. 264, para. 213. Defence Counsel submitted that address of counsel not matter how beautifully worded does not take the place of evidence and that the complainant never in his evidence said he was not served with Exhibit D1. He argued that all the authorities cited NNAJI v. LUKA (supra); REPTICO GENEVA v. AFRIBANK (Supra) are inapplicable. Counsel to the Defendants submitted that on the authority of Kara V. Wassah (2001) (supra), evidence given under cross examination cannot be said to be at variance with pleadings or that it is not supported by pleadings. That the purpose of cross examination is to test the veracity of a witness and the accuracy and completeness of his story. OPUTA, MODERN BAR ADVOCACY P. 68. Regarding the submission that claimant’s counterclaim was not challenged as defendant did not file reply to counterclaim, counsel submitted that a counter claim in law is as a claim which has to be proved with evidence, as it is trite that pleading is not evidence, therefore, that claimant is caught by Sec. 49 (d) of the Evidence Act. ROYAL EXCHANGE ASSURANCE (NIG.) LTD. v. ASWANI TEXTILE INDUSTRIES LTD. (1992) 2 SCNJ 346 On 5th October 2016, parties adopted their final written addresses and adumbrated their respective positions accordingly. . The matter was then adjourned for judgement 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 is entitled to the reliefs sought in this suit.. The claimant’s reliefs for avoidance of doubt are as follows: Payment of 18 months’ salary owed the claimant by the defendant which sums up to (#1,584,536) One Million, Five Hundred and Eighty four Thousand, Five Hundred and Thirty Six Naira only. The crux of the claimants case is that the claimant worked under a contract extended by contract for 18 months after his last payment and the defendant referred to the claim of the claimant as unearned salary. The stance of the defendants is that the claimant work with the defendant was governed by a contract; a yearly contract renewal subject to the approval of the defendant. It is the contention of the defendant that the claimant worked under a written contract which required a written renewal i.e. their approval to be extended and that the last contract executed with the claimant ended in August 2007, and that the six months thereafter for which, the claimant collected salary they argue was unearned, and not based on any contract and such they are entitled to reclaim it; hence their counterclaim. The claimant maintains that he worked for the defendants for two years after the August 2007 and he is being owed the salary for 18 months. Arguing that his contract was renewed by conduct. In law contracts can be made by word, deed, paraole or by the conduct of the parties. See the case of SHENA SECURITIY COMPANY LTD vs. AFROAK (NIGERIA ) LTD & ORS 2008 LPELR 3052 SC, I am aware that a contract in writing can ONLY be varied by the parties in writing See CBN Vs. IGWILLO 2007 LPELR 835 SC. The Supreme Court in that case also stated that “It must always be borne in mind and this is also settled firstly that where a contract (which includes a contract of employment) involves several documents, the trial court can only determine the issues before it on the basis of the documents including the letters relating to the contract and the conduct of the parties”, The claimants have tendered Exhibit C3, being the contract appointment agreement form creating an initial contract of 12 month renewable thereafter. The claimant also tendered Exhibit C5(6) a letter dated 5th September 2006 reproduced below: From the second paragraph it is evident that this letter was written retroactively to cover the earlier contract of the claimant from 2005 to 2006. And went on in the 3rd paragraph to stipulate that the contract would determine in August 2007 unless a renewal is approved. It continued to state that the claimant would be required to re apply within three months to the end of the contract if he was desirous of renewal. And if no such application is received it means the claimant is no longer desirous of continuing the contract. The claimant also tendered Exhibit C5(8)(1) a letter from the claimant to the defendants dated 18th June 2007 with the title Re Renewal of Contract of Appointment wherein the claimant applied for a renewal of his contract with the defendants. This letter bares two minutes the first is addressed to ”DEAN” recommending the claimant and dated 19th June 2007, whilst the second minutes was addressed to “VC” and reads “Recommended and forwarded for your kind approval based on the attached correspondence from the Registrar” and this second minute was dated 25th June 2007. The contention of the defendants that they (the defendants) did not receive C5(8)(1) and if they had it would have been stamped as received by the Vice Chancellor’s office for consideration for the Dean to recommend. I find explanation inadequate cast a doubt large enough to negate the obvious contention that this letter was in fact received by the defendants. Especially as the defendants were unable to present to the court any samples of the ordinary correspondence procedure operational in their institution to prove or indicate that all correspondence received in the dean’s office are without exception stamped received for the dean’s consideration. I believe that Exhibit C5(8) was written by the claimant and received by the defendant, I am satisfied that the claimant had applied for the renewal of his contract within the time frame stipulated in Exhibit C5(6). Having done his part and without any correspondence form the defendants rejecting the application I find that the claimants appointment was duly renewed, the counterclaim of the defendants therefore fails and the claimant is entitled to the salary already paid. The claimants maintains that he worked for 18 months thereafter without salary and the defendants denied that the claimant is being owed 18 months salary stating as they contend that the claimant contract had ended , was not renewed and the claimant never applied for renewal. At no time during their defence did that deny that the claimant actually worked for 18 months. I am aware that the law of traverse is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, ………, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 ALL NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. However beyond and before the admission the claimant is required to prove his pleadings. Exhibit C5(8)(1) establishes the claimants claim to one years (2007-2008)contract bearing in mind the parties had always created one year contract and even Exhibit C5(4) which covered a two year period referred to the duration as two separate one year contract, beyond that the claimant have put nothing before the court to entitle him to payment of salaries for the period of 2008-2009. The claimant is required to prove his case and not rely on the weakness of the defendants case, See AJA &ANOR Vs. OKORO & ORS 1991 LPELR 276 SC, I find that the claimant is entitled to the remaining 6 months unpaid by the defendants for the period of March 2008-August 2008, exhibit C5(8) puts the claimants salary N65, 120. 33 the defendant paid the claimant the sum of N514,499.64 for the period of September 2007 to February 2008 which equates to N85, 749.94 monthly, therefore the defendants shall pay the claimant the same amount for the period of March 2008- August 2008. I hold. The claimant no evidence in support of his counter counter-claim, I find the counter counter-claim unproved and it is hereby dismissed. The case of the claimant therefore succeeds but only this far; The defendants shall pay to the claimant the sum of N514,499.64 being unpaid salary for the period of March 2008- August 2008, Cost of this suit is put at N300, 000.00 All sums to be paid within 60 days thereafter shall attract an interest of 10% per annum This is the Court’s judgement and it is hereby entered. …………………………………… Hon. Justice E. N. Agbakoba Judge