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JUDGMENT The claimant by a complaint dated and filed on the 10/5/2017 sought the following relieves from the court. a. A DECLARATION that the suspension of the Claimant indefinitely without pay by the Defendant is wrongful, unjustifiable, unwarranted and unreasonable for being contrary to the terms and conditions of the Claimant’s contract of service with the Defendant. b. A DECLARATION that the Contract of Service between the Claimant and the Defendant still subsists. c. FOR AN ORDER awarding and mandating the Defendant to pay the Claimant the total sum of N2, 520,000.00={Two Million Five Hundred and Twenty Thousand Naira only) at the rate of N105,000.0Q per a month being the Claimant’s unpaid salaries for the period of 24 months from 5th January, 2015 to January, 2017; thereafter the sum of N 105,000.00 per month until judgment is delivered. d. AN ORDER of the Court nullifying the indefinite suspension of the Claimant by the Defendant since 5th January,2015 for being unreasonable, unjustifiable, unlawful and ultra vires the terms and conditions of service between the Claimant and the Defendant. ALTERNATIVELY AND/OR IN ADDITION:- e. AN ORDER of the Court mandating the Defendant to formally terminate the Claimant’s Contract of Service with the Defendant to take effect from the dated of the judgment; and for the Defendant to pay the Claimant all his outstanding salaries from 5th January, 2015 until judgment is delivered to be calculated at the rate of N 105, 000.00 per month. OR f. AN ORDER of this Honourable Court formally terminating the Claimant’s Contract of Service with the Defendant to take effect from the dated of the judgment; and for the Defendant to pay the Claimant all his outstanding salaries from 5th January, 2015 until judgment is delivered to be calculated at the rate of N 105, 000.00 per month. g. FOR AN ORDER awarding in favour of the Claimant the sum of N 10, 000, 0000.00 (Ten Million Naira only) as a general damages and compensation for loss of jobs, severe pains, untold hardship, psychological trauma, stress and highly embarrassed existence which the Claimant was subjected to by the Defendant for placing him on suspension indefinitely without pay since 5th January, 2015 till date. h. For an Order awarding in favour of the Claimant, the Claimant’s Solicitors professional fee for this action being the sum of N700, 000.00 (Seven Hundred Thousand Naira) as special damages. i. 10 % interest from the date of the judgment until the judgment is finally liquidated. j. Costs of this action. k. AND for such orders or further orders as this Honourable Court may deem fit to make in the special circumstances of this case. The claimant filed his particulars of claims and the claimant witness statement on oath along with the originating process. Upon being served with the statement of defence and counter claim, the claimant filed a reply to the statement of defence and a further witness deposition on the 22/2/2018. The defendant filed their statement of defence and counter claim, and a witness statement on oath of DW1 Mr. Ikenna Unogu on the 9/2/2018. On the 19/3/2018 the defendant filed a Reply to the claimant defence to the counter claim, along with a witness statement on oath of DW2 Uche Okoye. On the 10/7/2018 the defendant filed an amended statement of defence and counter claim. On the 11/7/2018 the DW2 filed a further witness deposition. On the 11/7/2018 the claimant filed a reply and defence to the defendant amended statement of defence and counter claim. Hearing in this suit commenced on the 20/3/2018 and concluded on the 11/7/2018. The parties were directed to file their final written addresses. The defendant filed their final written address on the 3/10/2018 and the claimant filed their final written address on the 8/10/2018. BRIEF STATEMENT OF THE FACTS. The claimant was employed on the 8/7/2006 as maintenance staff of the defendant. He accepted the offer of employment by letter dated 30/11/2006 and was confirmed on the 3/5/2007. His salary was at various times increased until it became N 105,000. He served the defendant up 5/1/2015 when he was placed on indefinite suspension on the grounds that he was alleged to have exhibited lack of interest and carelessness while in the employ of the defendant. Via a letter dated 13/2/2017 the claimant challenged his suspension and made claims against the defendant. The claimant contends that the refusal of the defendant to formally terminate his appointment has resulted in his inability to secure another employment with another organisation. That he attended an interview and was successful but he was asked to present a letter of termination from the defendant which letter the defendant has refused to give to him. He contends that his indefinite suspension was in breach of his contract of employment with the defendant. The defendant position as revealed in the letter of suspension dated 5/1/2015 is that the claimant was placed on indefinite suspension because of lack of interest and carelessness in the performance of his duties and was latter terminated of his employment on the 18/12/2015 because of the above stated reason. The reason for the termination is expressed in paragraph 5 of the defendant amended statement of defence/counter claim thus; The claimant’s employment with the defendant was terminated on the grounds of gross negligence which not only damaged machineries in Awka production plant of the defendant but damaged the batched of pharmaceutical products manufactured by the defendant company. The defendant therefore has counter claimed the sum of £ 18, 630.00 Euros (eighteen thousand six hundred and thirty euros) as cost of the repairs of the of the damaged machine and a further N 5 million naira as the cost of the batch of product lost as a result of the damaged machine. I think this is the brief facts of this case. EVIDENCE LED DURING PROCEEDINGS. In proof of his claims the claimant testified for himself as CW1 and the sole witness. He tendered the following documents in evidence and was cross examined by the defence counsel; 1. Offer of appointment dated2/11/2006, Exhibit C1. 2. Letter of confirmation of appointment dated 3/5/2007 Exhibit C2 3. Memo on salary increment dated 6/5/2010 Exhibit C3 4. Letter of Suspension dated 5/1/2015 Exhibit C4 5. Solicitors letter dated 13/1/2017 Exhibit C5 6. Letter of invitation for interview dated 12/9/16 Exhibit C6 The defendant called two witnesses in his defence DW1 Ikenna Unogu and DW2 Uche Okoye. The defendant tendered the following Exhibits through the witnesses. 1. The defendant file copy of Exhibit C1 (the letter of appointment) marked as Exhibit D1 2. Letter of acceptance of Appointment Exhibit D2 3. The defendant file copy of Exhibit C2 (Letter of confirmation of appointment) marked as Exhibit D3. 4. Internal memo on salary increment Exhibit D4. 5. Memo dated 20/2/2007 titled salary increment Exhibit D5 6. Memo on salary increment dated 13/2/2008 Exhibit D6 7. Internal Memo dated 5/1/2015 titled ‘Indefinite Suspension’ Exhibit D7 8. Letter of termination of appointment dated 18/12/2015 Exhibit D8 9. Internal memo dated 20/03/12 titled Query Exhibit D9 10. Respond to the query dated 20/3/2012 Exhibit D9a 11. Internal Memo titled ‘suspension’ dated28/3/2012 D10. 12. Memo dated 01/05/20013 titled presentation of official receipt for purchases Exhibit D11 13. Internal Memo dated 17/7/2009 titled ‘Surcharge Warning’ Exhibit D12 14. Internal Memo dated 5/8/2009 Exhibit D12a 15. Letter of undertaking written by the claimant dated 13/4/2012 Exhibit D13 16. Juhel Nigeria Limited staff hand book Exhibit D14 17. Defendant time register Exhibit D15 18. Internal Memo dated 18/12/14 Exhibit D16 19. Proforma Invoice dated 24/6/2016 20. Internal Memo dated 28/8/2008 titled ‘Query’ Exhibit D18. • Exhibit D15 to Exhibit D18 was tendered through DW2. Uche Okoye. The defence witnesses were cross examined by the claimant counsel. In their final addresses the parties submitted several issues for determination However this court will compress the several issues formulated by the parties into the following issues. ISSUES FOR DETERMINATION. From the facts and the state of evidence adduced as well as the evidence and the facts and circumstances of this case. This court considers that the issues for determination are; 1) Whether the indefinite suspension of the claimant and the latter of termination of the claimant employment with the defendant is valid as to deny the claimant of the relieves sought in this claim or put differently whether the claimant has proved his entitlement to the reliefs claimed in this suit. 2) Whether the defendant has been able to proof his counter claim in this suit. It is the view of this court that these two issues would address the several issues formulated by the parties in their written addresses. ON ISSUE No.1 The claimant in proof of his claims tendered exhibits C1, C2, to establish his employment status with the defendant. He also tendered Exhibit C3 which is evidence of his salary increment he gave evidence on oath to the effect that his salary was variously increased until it was increased to be N105,000.00 on the 24th September, 2013. These pieces of evidence were corroborated by the evidence of DWI in his witness statement on oath and also Exhibit D4 tendered by DW1 in evidence. The defendant also tendered Exhibit D1, letter of offer of appointment, D2 letter of acceptance of appointment and Exhibit D3 letter of confirmation of . The defendant also tendered the memo on salary increment Exhibits D4, D5 and D6 . The claimant gave evidence that he was put on indefinite suspension without pay by the defendant. He tendered Exhibit C4 the internal memo suspending him from work. He testified that the suspension was in breach of his condition of service with the defendant. The claimant also testified that the terms of his contract of employment was contained in Exhibit C1 the offer of appointment. The claimant also gave evidence in his further witness deposition that his contract of employment was never regulated by the defendant Policy handbook and manual tendered in court as Exhibit D14. It is also the evidence of the claimant that he was kept out of employment up to when he filed this suit. He also testified that he caused his solicitors to write Exhibit C5 demanding to be paid the backlog of his outstanding salaries, damages and requested that his appointment be formally terminated so that he can seek another employment. The claimant testified and also tendered Exhibit C6, an invitation for interview dated 12/9/2016 which he attended but was denied the job because the company required him to produce a letter of termination from the defendant. On the other hand the defendant witness DW1, Barrister Ikenna Unogu the Company Secretary of the defendant, testified that the claimant was placed on indefinite suspension as shown on Exhibit D7 (which is the same with Exhibit C4) on the grounds of gross negligence in the handling of the defendant’s machineries installed in his plant at Awka. DW1 testified further that the act of negligence and misconduct by the claimant caused the defendant £15,000. Euro to repair the machine and a further N 5.million naira as the cost of damaged batch of product. He testified that the claimant was subsequently terminated of his appointment on the 18/12/2015 vide Exhibit D8. DW1 gave evidence of the claimant previous act of carelessness and queries, the answer to the queries , suspension for two weeks and surcharge warning and the memo to rescind the decision to surcharging the claimant. He tendered Exhibits D9, D9a,D10, D11, D12, D12a,D13 and D18 respectively. The defendant also tendered Exhibit D18 a document titled the Report of the Activities of Lawson Ede authored by DW2 dated 18/12/2014 wherein he recommended the termination of the claimant employment with the defendant. He also tendered the Proforma Invoice dated 24/06/2016 detailing the sum of £18,630 Euro as the cost of the machinery pats bought by the defendant to repair the damaged machine. The defendant witness DW2 Uche Okoye also testified that the termination of the claimant was done after a panel of investigation was set up which the claimant was invited to appear and which he failed to appear. The claimant has denied that no such invitation was extended to the claimant as there is no evidence of such invitation being served on the claimant. DW1 testified that the staff handbook Exhibit D14 governed the employment of the claimant and that there was compliance with the conditions contained in the staff handbook in terminating the employment of the claimant. I have carefully reviewed the evidence adduced by the parties and the several Exhibits tendered in this suit. First I have clearly narrowed down the issue for determination in this suit so as to deal with the exact subject matter in this suit. It is the position of this court that it is the issue of the indefinite suspension and termination of the claimant that is in issue. Therefore Exhibits D9, D9a,D10,D11, D12, D12a, D13 and D8 insofar as it dealt with past issues of infraction and administrative discipline of the claimant by the defendant, are irrelevant as regards the issue in contention. They are of no help in resolving the issue in question. Moreso, that the defendant had been satisfied with the disciplinary measures taken against the claimant. The court is also not unmindful of the content of Exhibit D16 dated the 18/12/2014 titled ‘The report of Activities of Lawson Ede’ where the DW2 who is the supervising Engineer of the claimant had recommended in paragraph 10 of the said document that the appointment of the claimant be terminated but the defendant continued to keep the claimant in its employment. These are acts of condonation since the defendant did not see any reason to terminate the claimant’s appointment. On the issue of indefinite suspension of the claimant the common law position is that the employer has the powers to suspend an employee without notice. In Longe V. First Bank of Nigeria PLC [2006] 3.NWLR Pt.967 pg.228 the court held that ‘when a man is suspended from the office he holds, it merely amounts to saying ‘so long as you hold the office and until you are legally dismissed, you must not do anything in the discharge of the duties which under your office you ought to do towards your employer’. The claimant is alleged to have been suspended on the grounds of ‘lack of interest and carelessness with his duties’ as shown on Exhibit C4 which is the same with Exhibit D7. The defendant intends to set up a defence of negligence as a misconduct which justified the indefinite suspension. The law is recondite with respect to this. In Access Bank Plc V. Ugwuh {2013} LPELR-20735 (CA) The Court of Appeal stated . ‘Negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. A claimant who alleges negligence is required to state or give particulars of the negligence alleged. It is not sufficient for a claimant to make a blanket allegation of negligence against a defendant without giving full particulars of the items of negligence. The party must lead credible and cogent evidence on the act of negligence alleged. The defendant throughout the pleadings failed to specifically plead the fact of the negligent conduct of the claimant in this case. Furthermore the Exhibit C4 did not allege any specific act of negligent misconduct on the claimant part. Also no evidence was led on the specific act of negligent misconduct on the part of the claimant. During cross examination DW1 admitted that on the date the machine was damaged he was in Enugu head office of the defendant, he testified that he did not witness the incident leading to the damage of the machine, that he was only informed as part of management of the defendant of the incident by the Head of Technical Department. The defendant tendered Exhibit D15 the attendance register which showed that the claimant was on duty on the 10/9/2014 and 11/9/2014. The mere fact of the presence of the claimant on the said date cannot impose on the claimant any liability in the absence of cogent evidence of negligence and misconduct on his part. It is also clear from the evidence elicited from DW2 during cross examination that the claimant was not responsible for operating the machine and did not operate the machine on the date it was damaged. The defendant also failed to provide any evidence of the claimant presence in the factory on the 8/9/2014 when he was alleged to have been instructed to service the said machine. These pieces of evidence were never challenged. This court is minded to hold that the defendant failed to establish any act of negligent misconduct on the part of the claimant as regards the incident leading to the damage of the machine. Furthermore, the defendant position is that the claimant was suspended pursuant to the powers vested in the defendant by Policy Handbook and Manual of the defendant, which apart from the letter of offer of employment also regulates the contract of employment and contain the terms of the employment. The defendant placed reliance on paragraph 2.2.2 (c) of the revised Policy Handbook and Manual of the defendant. This section of the manual provides; Commission of any major offence shall attract suspension, termination of appointment or dismissal depending on the degree or severity of the offence as may be determined by the appropriate disciplinary committee or panel. These offences include but not limited to the following (a)---------------------------- (b) ------------------------------ ( c) Performing assignment in grossly negligent manner resulting in significant loss or embarrassment to the company; From the tenure of the above provision, the offence for which the claimant was suspended falls under the class of offences designated as ‘major offence and penalty’. Before the defendant can suspend a staff including the claimant the proviso to the above quoted paragraph of Exhibit D14 provides; No recommendation of the disciplinary committee or panel under this clause shall be implemented against any staff without the prior written approval of the Managing Director or such person or officer as the Managing Director may from time to time designate. The above proviso requires that an appropriate disciplinary committee or panel must recommend that the claimant be suspended. Furthermore, such suspension which carries the sanction in paragraph 2.2.4, i.e, stopping the salary of the claimant can only be implemented upon a written approval of the managing director of the defendant or such person or officer as the managing director may designate. While it is not in doubt that the handbook having been revised on the 1st August 2006 before the claimant was employed on 2/11/2006 applies to the claimant and further regulates his contract of employment, However the defendant failed to comply with the conditions stipulated in its policy handbook when they suspended the claimant. The defendant failed to show in the letter of indefinite suspension Exhibit C4 that any committee or panel had recommended the suspension. Also no evidence oral or documentary was led to show any written approval by the defendant managing director for the implementation of the suspension. The flagrant disregard of the procedure in paragraph 2.2.3 and the proviso to the said paragraph in the defendant policy handbook Exhibit D14 to say the least is a breach on the part of the defendant of the terms of the contract of employment between the claimant and the defendant. The law is that parties are bound by the agreement they voluntarily enter into In NIDC V. Jackson Devos Ltd. [2014] LPELR-23378. The court of Appeal reiterated this position when it held ‘ The law recognises and respects the sanctity of agreements and where the parties have agreed, the conditions must be observed ‘ In Hydro-Tech Nig Ltd & Anor V. Leadway Assurance Co. Ltd & Ors [2016] LPELR -40146. The court also held that ‘It is trite principle of law, that parties to an agreement are bound by the terms they voluntarily undertook to carry out under the said agreement. See also UBN V. Ajabule [2011] 18 NWLR Pt1278 at 152. This court hereby declares that the suspension of the claimant indefinitely without pay by the defendant is wrongful, unjustifiable, unwarranted, and unreasonable for being contrary to the terms and conditions of the claimant contract of service with the defendant. Moreso, the defendants defence also to the claimant’s action is also that the claimant was placed on indefinite suspension on the grounds of ‘lack of interest and carelessness with his duties’ as shown on the letter of indefinite suspension Exhibit C4. The defendant in the letter of suspension which was the basis for the termination of the appointment of the claimant in Exhibit D8 gave reasons in the two documents why the appointment was terminated. DW1 in paragraph 30 of the witness deposition deposed that the defendant (employer) exercised her power to suspend the claimant pursuant to the defendant’s WORK PLACE POLICY HANDBOOK & MANUAL (Exhibit D14) he testified that the suspension meted out on the claimant consequent upon his misconduct by the Human Resources Manager was justifiable and consistent with the terms of the contract of employment. I had earlier in this judgment reviewed the relevant provision of Exhibit D4. And found out that there was no compliance with its provisions. However by giving reasons for the suspension and subsequent termination, the defendant was under a duty to establish the reason stated in the two documents i.e. exhibit C4 and D8. The Court of Appeal had laid this position to rest in the case of UBA PLC V. Oranuba (2014) 2NWLR PT 1390 at pg 1. The court held; In contract of employment between a master and a servant without statutory flavour, once a master complies with the terms of the agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason. Such servant must be given a fair-hearing as enshrined in the Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. Also in the supreme court in OLATUNB0SUN VS N.I.S.R. COUNCIL (1988) 1 NSCC (1025) 188 stated that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case, he gives a reasons or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court.” The court went further in UBA PLC V. Oranuba ‘supra’ to hold inter-alia; It is against fair-hearing and rule of natural justice for an employee to be suspended on half salary when the employee has not been queried and accorded a fair hearing on the query. In the instant case, the punitive measure of suspension on half salary pending investigation meted to the Respondent was wrong, it was in breach of terms of the employment contract between the parties. There is no evidence led by the defendant in this suit showing that the claimant was queried on the allegation of lack of interest and carelessness in the discharge of the claimant duties leading to loss and damage to the defendant. There is also no evidence before this court showing a disciplinary committee or panel was set up to investigate the allegation pursuant to paragraph 2.2.3 and the proviso thereto, of the defendant policy handbook and manual Exhibit D14. DW1 and DW2 in paragraph 20 and 23 respectively of their witness deposition stated that the claimant was invited on phone to appear in a commission of inquiry to sit on the allegation against the claimant but the claimant refused to appear. The defendant ought to have pleaded and produced the said committee or commission report along with the written approval of the Managing Director or any person who acts on his behalf which would be evidence of compliance with the procedure for suspension and dismissal of the claimant under the defendants Policy Handbook and Manual. The law is that failure to afford the claimant the opportunity to make representation and put in a defence to the allegation made against him by the defendant is a violation of the claimant’s right to fair hearing as guaranteed by section 36(1) of the 1999 Constitution. The court of Appeal emphasised this in the case of case of U.B.A PLC vs. ORANUBA ‘Supra’ in the following words; Where allegations have been made against an employee, the employer is entitled to set up a panel to investigate the allegations … Once the panel concludes its inquiry and makes its mind that any point had prima facie been made out which points to the fault of any person, the employer must first inform employee of the case against him and give him opportunity to refute, explain or contradict it otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use these points as basis for dispensing with his services.” , employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded him to Justify or explain same. Before an employer can dispense with the services of his employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. It is on the state of the above further elucidated state of evidence that this court hands are strengthened to declare that the indefinite suspension and purported termination of the claimant employment with the defendant as wrongful and a breach of the terms of the employment of the claimant by the defendant. This court accordingly hereby makes an order nullifying the indefinite suspension of the claimant as contained in Exhibit C4 for being unreasonable unjustifiable, and unlawful and ultra vires the terms and condition of service between the claimant and the defendant. I must add here that the condition for the stoppage of the salary of the claimant pursuant to paragraph 2.2.4 of the defendant policy handbook and manual can only apply if an employee in this case the claimant is properly suspended in accordance with paragraph 2.2.3 and the proviso to that paragraph of the defendant’s revised policy handbook and manual. Having found that the indefinite suspension vide Exhibit D8 was unlawful, the stoppage of the salary of the claimant becomes equally unlawful and in breach of the terms of employment. The claimant was and is entitled to his salaries as claimed in this suit. Also on the issue of termination of the claimant appointment with the defendant, the claimant by exhibit C5 was suspended on the 5/01/15. It was on the 18/12/2015 vide Exhibit D8, that the defendant purported to terminate the appointment of the claimant. The claimant has denied ever receiving Exhibit D8. Also during cross examination DW1 was asked whether he was there when the letter of termination was served on the claimant, his answer was No. He stated further that it was one Miss Ezendu Ogochukwu the Human Resources Manager that served the letter. The defendant did not call the said Miss Ezendu Ogochwukwu as a witness to give evidence of the fact of service of Exhibit D8. The testimony of DW1 on this issue cannot be believed. The defendant therefore failed to discharge the burden placed on them to establish their assertion that the claimant was served with the letter of termination. . The law is settled and it is that he who asserts the affirmative of an issue is under a duty to prove same. See Section 131 (1) of the Evidence Act. I have carefully considered the practice of the defendant. I have noticed that the defendant in all the documents served on the claimant tendered in evidence in this proceeding required the claimant to acknowledge receipt of the letter. It is absurd that the claimant was not made to acknowledge a very important letter like the letter of termination of the claimant employment Exhibit D8. Also puzzling is the fact that when the claimant solicitor wrote Exhibit C5 requesting the defendant to formally terminate the appointment of the claimant on the 13/1/2017, which letter was duly received and acknowledged on the 19/1/2017 by the defendant, the defendant failed to reply the said solicitors letter, to notify the claimant counsel that the claimant had long been terminated of his appointment over a year ago on the 18/12/2015 as the defendant claims in Exhibit D8. Also in response to the paragraph 30 and 31 of the particulars of claim, the defendant in paragraph 25 of the statement of defence failed to properly deny the facts pleaded in the particulars of claim relating to the solicitors letter as required by law. See Niko Engineering Ltd Vs Akinsina {2005} All FWLR Pt. 284 pg.292. The defendant also did not deny that they received Exhibit C5, nor did they deny that they did not reply the solicitors letter. On the authority of Trade Bank PLC V. Khaled Barakat Chami (2003) 13 NWLR Pt. 836 the court held Business letters unlike social correspondence deserve to be replied, consequently, the court would unless the circumstances in which a business letter is written shows otherwise, infer that failure to reply a business letter is an admission of facts stated in the letter. This is because what is not denied is deemed admitted This court is persuaded to hold that the defendant failure to reply the solicitors letter Exhibit C5 is an admission of the content thereof. This state of fact throws a serious doubt on the story of the defendant that they did serve a letter of termination Exhibit D8 on the claimant. Furthermore , during cross examination DW1 stated that the letter of termination was collected by the claimant in person who refused to acknowledge the receipt of the letter. This piece of evidence is an afterthought it was never pleaded. The law is that evidence led on facts not pleaded goes to no issue and must be discountenanced and expunged . See the case of Sanni Omotosho V. Obidairo (2014)LPELR-23006. See also Tanko V. Echendu (2011) 18 NWLR (pt 1224, 253 at 274. This evidence is hereby expunged from the record. I have earlier in this judgment dealt with the provisions of paragraph 2.2.2 (c) and the proviso to the above paragraph of the Policy Handbook and Manual of the defendant tendered as Exhibit D14. These provisions also regulate the termination of the appointment of the claimant for the offence of performing assignments in a grossly negligent manner resulting in significant loss or embarrassment to the company. In terminating the appointment of the claimant, the defendant failed to comply with the said provision of Exhibit D14. The law is settled and it is that the employer who hires an employee has the corresponding right to fire him at any time. And in doing so the employer must act in accordance with the terms of employment. The only time the employee can seek remedy is where the terms of employment is breached. See the case of Francis Arinze V. Firstbank of Nigeria PLC. [1999] LPELR-5648. This leads us to what remedy the is available under the circumstances of this case, the learned defendant counsel, Chief Mrs A. J. Offiah (SAN) has argued in his written address that assuming without conceding that the claimant appointment was wrongfully terminated, that the remedy of the claimant lies in a claim for damages which quantum is one month salary which he would have earned if proper notice to terminate was served on the claimant. Learned defence counsel relied on a clause in the letter of appointment Exhibit C1 which requires a month notice on either side or one month salary in lieu of notice. The learned SAN cited the case of Ibrahim Geidam V. NEPA [2000] LPELR-6848 to support of his position. I must point out here that I am very conversant of the position of the law in this regard. This is not a case of wrongful termination for failure to give the requisite notice to terminate for which the position canvassed by the learned SAN would apply. The position taken by this court is clearly enunciated in the case of British Airways V. Alhaji A.O. Makanjuola. [1993] 8 NWLR (Pt. 311) at 276 where the court made a distinction between the two instances where the court would apply different consideration in determining the quantum of damages awarded for breach of contract of employment . The court held; The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of failure to give the required notice or as a result of an alleged malpractice. If wrongful termination of the appointment is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter i.e, malpractice, then such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required, ( P. 289, paras C -0 ) . As I have already found out, this suit involves a situation where the claimant was wrongfully placed on an indefinite suspension in violation of the procedure provided under the defendant Policy Handbook Manual Exhibit D14. He was also purportedly terminated via Exhibit D8 which was never served on the claimant. The implication is that there is no termination enforceable under the terms of the contract of employment between the parties before this court. At most we can say that the defendant has by his conduct shown an intention to terminate which he failed to carry into effect. Therefore the position canvassed by the learned SAN has no application in this case. On the strength of the evidence adduced on this issue this court holds that Exhibit D8 the letter of termination which was never served on the claimant is in breached of the terms of employment of the claimant. This being the case this court hereby holds that the claimant is yet to be properly terminated of his employment relationship with the defendant. The purported letter of termination in Exhibit D8 is hereby set aside. It is hereby declared that there is a still a contract of service existing between that claimant and the defendant till today. Having said this the action of the defendant in unlawfully placing the claimant on an indefinite suspension and latter purporting to terminate the appointment is not without attendant consequences on the claimant. The claimant testified that he was successful in an interview he attended with another company Downtown Farm City Ltd. Sometime in 2006 but could not secure the job because the company required a termination letter from the defendant which he made effort to get from the defendant but could not. He tendered Exhibit C6 a letter of invitation for the interview. He testified that this made him to cause his solicitors to write to the defendant vide Exhibit C5 wherein the claimant demanded that the defendant should formally terminate his appointment with the defendant. Paragraph 4 of Exhibit C5 reads ‘ Our client has lost two jobs from reputable establishment on the basis that those establishment demanded for his termination letter from the previous employer being your company which he could not provide as non has been issued to him’ He further testified in paragraph 32 of his witness deposition ‘that I lost the job with Downtown Farmcity Ltd. because the defendant refused to give me a termination letter which was a condition for employing me by the said company’. During cross examination the claimant stated ‘ After the interview I was asked to go and bring my termination letter from my former employer and when I approached the defendant I went to see the CEO of the defendant he refused to see me, I went back two other times. At the 2nd and 3rd time I was turned back at the gate. I sent him a text message up to 3 to 4 times but he did not respond. My counsel wrote to the defendant and they refused to reply the letter up till today. I lost that job.’ The defendant did not contradict this evidence nor did they lead any evidence in rebuttal of the claimant position, The law is settled that uncontroverted evidence must be taken as true. See the case of Olaniyan V. Oyewole (2010) LPELR-9109. The court held that ‘evidence not challenged are deemed admitted by the opposite party’. See also Adeleke & Ors V. Iyanda & Ors [2001] 6 SCNJ at 105. The claimant gave evidence that the defendant action kept him unemployable with the attendant suffering experienced by him and his family. From the state of pleadings and the unchallenged evidence adduced by the claimant this is a case where this court can award damages against the defendant in this suit which the court will so do at the concluding part of this judgment. I have noted in this judgment that the defendant acknowledged the receipt of Exhibit C5 The defendant made a general traverse which is insufficient in law in response to the claimant particulars of claim paragraph 28 to 32, in paragraph 25 of the statement of defence thus ‘ paragraph 28 to 32 of the claimant’s particulars of claim are to the knowledge claimant. The claimant has asked this court to formally terminate the contract of employment between the claimant and the defendant. The law is that it is not the duty of the court to make contract for the parties before the court. In the case of Stag Engineering Co. Ltd V. Sabalco Nig. Ltd. (2008)LPELR-8485. The court of Appeal cited with approval the Supreme Court decision in the case of Omega Bank Nig PLC V. O.B.C. Ltd. {2005} NWLR (Pt928) at 547, and held that with respect to contract entered into by the parties, that it is not the function of the court to make contract between the parties. The duty of the court is to confine itself to the evidence before it. However in deserving cases like the one under consideration in this judgement the court can in its judgment, make an order deeming the contract of employment as determined. This is because where from the circumstances of the case the employer has shown a clear intention not to continue to keep the employee, the court would have to be bound by the time tested principle that as stated by the supreme Court in Osisanya V. Afribank Nig. Plc. [2007] LPELR -2809, that it is settled law that a court cannot impose a willing servant on an unwilling master. See also Olarewaju V. Afribank (Nig) Plc. [2001] 13 NWLR (pt 731 at 691. From the circumstances of this case and the evidence adduced it is the view of this court that the defendant in this case has clearly shown that he does not intend to continue to keep the claimant in his employment even though in doing this he adopted a procedure which is in clear violation of the terms of employment between the parties. This court on the strength of the above position hereby declares that the contract of employment between the claimant and the defendant be and is hereby deemed determined from the date of this judgment. Having said this I have carefully perused the claims of the claimant which I had earlier reproduced in the judgment. This court is mindful to grant the 1st relief in line with the finding of this court in this judgment. Accordingly it is hereby declared as follows; (a) That the suspension of the claimant indefinitely without pay and the subsequent purported termination of the employment of the claimant was wrongful, unjustifiable, unwarranted and unreasonable for being contrary to the terms and conditions of the claimant contract of service with the defendant. (b) It is hereby declared that the contract of service between the claimant and the defendant still subsist till today and from today it is deemed as determined. (c ) It is herby ordered that the letter of indefinite suspension dated 5th January 2015 Exhibit C4 and the letter of Termination Dated 18th December 2015 Exhibit D8 are hereby set aside for being unreasonable, unlawful and a utra- vires the terms and condition of service between the claimant and the defendant. (d) Having found that the claimant has successfully proved his entitlement to relief No ‘C’ in his claim, this court directs the defendant to pay to the claimant the sum of N 2, 520,000 being the areas of the claimant salary from the 5th January 2015 to January, 2017. The defendant shall also pay to the claimant the sum of N2,205,000 being 21 months areas of salary from the February 2017 to October 2018 . The claimant is therefore entitled to a total sum of N 4,725,000. (e) The claimant has also claimed the sum of N10, million naira as general , I have noted earlier in this judgment that the action of the defendant in the circumstances of this case has caused the claimant some inconvenience and hardship, this is the appropriate case in which this court can award damages. Accordingly the defendant shall pay the claimant the sum of N 100,000 damages. (f) The claimant has also claimed the sum of N 700,000 as solicitor’s professional fees. However the claimant offered no prove of his entitlement to this claim. Furthermore, even if there was prove of the payment of this sum as professional fees to the claimant counsel, this is a claim which the law does not encourage any court to grant. It is a misconception for a party in an action to think that the expenses of his litigation in the nature of professional fees paid to his solicitor can be recovered through damages or a claim for it against the opposite party. The Supreme Court has laid to rest this issue when the court held in Christopher Nwanji V. Coastal Services Nig. Ltd [2004] LPELR-2106 thus: It is an unusual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of cost taxation to get a realistic figure. Cost are awarded arbitrary and certainly usually minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgage who engaged him, in the present case on the grounds of solicitor’s cost paid by him. On the strength of the above cited authorities the claim of N700,000 fails and is hereby dismissed. ON ISSUE 2 ‘Whether the defendant has been able to proof his counter claim in this suit’. The defendant in this suit counter claimed the following reliefs from this court: 1) A DECLARATION that the employment of the claimant was validly determined in line with the contract of service was validly determined by the defendant in accordance with offer of appointment letter and the POLICY HANBOOK & MANUAL. 2) A DECLARATION that the Claimant was negligent in attending to the duties assigned to him by the defendant. 3) A declaration that the claimant’s negligence resulted or occasioned a huge loss of income for the Defendant to the tune of Fifteen Thousand Euros (€18,630.00) being the amount spent on repairing the machine. 4) A declaration that the claimant’s negligence resulted or occasioned a huge loss of income for the claimant to the tune of (Five Million naira only) N5, 000, 000: 00k being the accessed or valued money lost as a result of the damaged batches of product 5) AN ORDER compelling the claimant to pay to the defendant the sum of fifteen thousand Euros (€15,000.00) being the amount due to the defendant from the claimant for the repair of the machine. 6) AN ORDER compelling the claimant to pay to the defendant the sum of (Five Million naira only) N 5, 000, 000: 00k being the accessed or valued money lost as a result of the damaged batches of product 7) Interest on the Fifteen thousand Euros (18,630.00) at the prevailing bank rate of 15% per annum from 12th December, 2015 till the date of payment of the sum awarded. 8) Interest on the Five Million Naira (N 5, 000, 000: 00k) at the prevailing bank rate of 15% per annum from 12 December, 2015 till the date of payment of the sum awarded. 9) N5, 000 ,000.00 (Five million Naira) general damages in favour of the defendant. 10 Interest on the sum of damages awarded at the rate of 5% per annum from the date of judgment until the sum is paid. For the reasons earlier stated in this judgment and also having already declared that the contract of employment between the claimant and the defendant was not validly determined in accordance with the defendant Policy Handbook and Manual. I have also declared that the defendant has failed to discharge the burden of proof of negligence on the part of the defendant. Furthermore, having not proved the allegation of negligence against the claimant this court cannot make a declaration that the claimant negligence resulted in loss of income to the defendant. Therefore, relieves No 1, 2, 3 and 4 of the counter claim is refused and are hereby dismissed Now for relieves No-5 to 10 of the counter claim, it is the case of the defendant that the claimant caused the damage of the defendant’s machinery which was repaired at a cost of £ 15,000.00 (Fifteen Thousand Euro). It is also the case of the defendant that product valued at N 5,000,000 was damaged in the production line on the day the machine was alleged to have been damaged by the negligence of the claimant. In proof of this assertion the defendant tendered a pro-forma invoice No 267712 dated 24/7/2016 Exhibit D17 wherein the sum of N18,630 Euro is invoiced to have been the coat of 9 different part of machines . Also the defendant tendered Exhibit D16 an internal memo dated the 18/12/2014, wherein the 2nd defendant Eng. Uche Okoye wrote in paragraph 9 that the parts recommended to be replaced cost the company £ 18,630 Euro. In his evidence of oath in paragraph 19 he testified that through the negligence of the claimant the defendant incurred huge expenses to the tune of £ 18,630 Euro. He relied on the report of the damage and the payment receipt. I have carefully considered the evidence of the defendant’s witness and Exhibit D17 and D16. First it must be pointed out that Exhibit D17 is an invoice. In Nigerian Bottling Co Ltd & Anor. V. Oresanya [LPELR] 8862 at page 21 paras F-G) The court of Appeal adopted the definition of invoice in the Oxford Advance Learner Dictionary, and stated that ‘an invoice means a list of goods that have been sold, work that has been done showing what you must pay. In business term invoice means to write and send something, a bill for work you have done or good you have provided.’ From the above quoted definition Exhibit D17 can never qualify as the evidence of payment of the sum of £18,630 Euro for machines at best it is a quotation of what price the supplier would be supplying the machine parts. To prove the payment of the above sum the defendant ought to have produces a receipt of payment or any other electronic evidence that shows that the defendant had parted with the said sum to the supplier of the machine parts. In Etajata & Ors v. Ologbo & Anor. [2007] LPELR-117, The supreme Court defined a receipt in the following words; ‘ A receipt generally is a document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment’ Also in the case of General Council of the Bar (England) V. Inland Revenue Commission [1907] 1 KB 462 at 471 it was held that for a document to be a receipt ‘ It must be a document whereby a receipt or deposit of payment of money is acknowledged or expressed.’ The defendant relied on the receipt of payment of the said sum but tendered an invoice. On the strength of the above authority it is the decision of this court the Exhibit D17 is not an evidence of payment of the sum of £18. 630 Euro by the defendant. Furthermore, the defendant also claims the sum of N 5,000,000 being the value of the batch of products damaged. Apart from the deposition of DW1 and DW2 that the value of the batch of product lost is the sum stated above the defendant failed to present evidence before this court as to how he came about the value of the product. There was no evidence of the cost of the raw material or any other evidence that can convince the court that that such damages occurred. These head of claims are in the nature of special damage. The law is recondite in the are and it is that special damages require strict proof. In the case of Uman & Anor V. Awoye [2002] LPELR-7059. The Court of Appeal held that: ‘what is meant by special damages must be approached from the natural attribute of special damages –which are damages which the law will not presume to flow infer from the nature of the Act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss, which the plaintiff alleges are the result defendant’s act or breach’ ?