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JUDGMENT 1. Introduction and Claims The Claimant commenced this action by a writ of summons and accompanying processes dated 16th September, 2016, wherein the claimant sought the following reliefs:- 1. An order for payment of the sum of 44,000 USD (forty-four thousand US Dollars) being arrears of salary for the months of November 2015 and December 2015 at the rate of 22,000 USD ( Twenty-Two Thousand US Dollars) per month. 2. An order for payment of the sum of 11,000 USD (Eleven Thousand US Dollars) being half month arrears of salary for the period of 1st September 2014 to 14th September 2014. 3. An order for the payment of the sum of 11,000 USD (Eleven Thousand US Dollars) being half month arrears of salary for the period of 1st January 2016 to 12th January, 2016. 4. An order for payment of =N=1,107,750.00 (One Million, One Hundred and Seven Thousand, Seven Hundred and Fifty Naira) being the cost of shipping his belongings/property from Nigeria back to Holland, which shipment was occasioned by defendant’s refusal to honour the terms and conditions of employment as it relates to provision of suitable accommodation for him. 5. An order for the sum of =N=2, 000,000.00 (Two Million Naira) general damages. 6. 21% interest on the judgment sum from February 2016 until judgment sum is fully liquidated. The Defendants filled a memorandum of appearance dated 21/10/16 and a motion on notice seeking leave to file and serve their statement of defence and front loaded process out of time. Same was heard and granted on 15/5/17. The Defendants subsequently filed a statement of defence on 2/2/17 together with all requisite processes as directed by the Rules of Court and counterclaimed against the Claimant as follows - 1. An order that the claimant pays to the defendant/counterclaimant three months remuneration at the rate of $66,000 being payment to the defendant/counterclaimant in lieu of notice of the claimant’s termination of appointment as contracted by the parties. 2. An order that the claimant pays to the defendant/counterclaimant the sum of =N=6,000,000.00 being the defendant/counterclaimant attorney’s fees, costs and expenses of these suits. 2. Case of the Claimant. The Claimant opened his case on 6/11/17 and testified as CW1. He adopted his written deposition on oath dated 16/9/16 as evidence in chief and tendered documents which were admitted in evidence and marked as Exh. C1 - Exh. C7. The claimant was cross-examined by the defendants’ counsel, after which the claimant closed his case. The case of the claimant as revealed from his evidence in chief is that he was offered employment by the 1st defendant via a letter dated 13th June, 2014 and resumed on 1st September 2014 on a monthly salary of 22,000 usd as evidenced by his pay slip. The claimant alleges that he is owed three months arrears of salary by the defendants. The defendants admitted owing the claimant only 2 months arrears of salary and also counterclaimed against the claimant stating that the claimant was supposed to give 3 months notice of intention to disengage from defendants’ employment. Under cross examination, CW1 testified that he started working for 1st Defendant on 1/9/14. I was not Nigeria from 1/9/14 but that he was working for 1st Defendant in Addis Ababa; that he was provided accommodation in a Guest House when he resumed with Defendant; that he was prepared to continue to work with Defendants provided given adequate accommodation; that he informed Defendants before he left; that he was not confirmed by Defendant; that he did not give any 3 months because he left temporarily to provide accommodation for his family which Defendant failed to provide and that his absence was temporary. 3. Case for the Defendant. The Defendants /counter claimants opened their defence on 19th February, 2018 and called one Mr. Vitalis Affor who adopted his written deposition on oath and tendered documents which were admitted in evidence as Exh. D1- D3. The Defendants’ case is that the claimant actually and formally resumed at the 1st Defendant on 16th September and not 1st September 2014 as claimed. The Defendants admit owing the salaries for November and December 2015; that the issue of the claimant’s accommodation was delayed due to his rejection of those offered; that the claimant sent his properties back to Holland in December 2015 because he had plans to leave Nigeria in January 2016; that the claimant abandoned his job and left Nigeria in January 2016; that the claimant never worked in January 2016. The Defendants counter claimed that the claimant’s purported suspension of his contact or resignation is in violation of his terms of employment which requires that the claimant give a three months notice or pay three months remuneration in lieu of notice and that the claimant in his defence contended that the three months notice is not applicable despite the fact that he worked with all the benefits and vacation attached to the job for about one and half years which is more than the contractual 12 months probationary period. Under cross examination, DW1 stated that as the Pay Roll Officer he collects input from different Departments into the Pay Roll; that he used same to prepare Staff pay monthly; that he also deals with issue of pensions and tax matters, National Housing Fund; that his office is also responsible for employment of staff of 2nd Defendant; that his office is not responsible for sourcing of accommodation for Senior Staff or Executive of the 2nd Defendant; that the Claimant resumed with the 2nd Defendant in the middle of September 2014; that he is not aware that 2nd Defendant requested Claimant to arrive Addis Ababa on 1/9/14; that he is not aware that 2nd Defendant instructed the Claimant to lodge in an Hotel in Addis Ababa so as to attend meetings in Dubai on 10th and 11th September 2014; that all payments to Staff of 2nd Defendant passed through his desk; that he is not aware that 2nd Defendant paid for Claimant’s expenses from Cairo to Addis Ababa or his Hotel accommodation in Addis Ababa; that he is not aware the claimant attended meetings on 10th and 11th September 2014 in Dubai on behalf of 2nd Defendant; that completion of Personal Data Form is a condition for employment at 2nd Defendant; that the 2nd Defendant normally issues same out to be completed by an employee; that the 2nd Defendant issued Personal Data Form to the Claimant to fill and that shown to him is the Personal Data Form issued by 2nd Defendant to the Claimant' that he does not visit Staff in their houses; that he does not know the nature of accommodation given to the Claimant; that Claimant’s appointment with 2nd Defendant was confirmed in principle and that was why he proceeded on leave; that there is no letter to that effect and that the Claimant was last paid in October 2015. 4. Submission on Behalf of the Claimant At the close of trial, learned Counsel to the Claimant filed a 13-page final written address on 10/4/18 wherein he set down 2 issues for determination thus:- 1. Whether based on the evidence adduced before the court the claimant has proved his case to entitle him to reliefs sought before this honourable court. 2. Whether the Defendants have proved their counterclaim. In arguing these issues, learned Counsel submitted that the Defendants in paragraph 4 of their statement of defence and counterclaim and also paragraph 3 of their written deposition admitted owing the claimant arrears of salary for the months of November and December 2015; that consequent upon the admission of relief “a” of the claimant’s claim, the claimant is relived of the burden of proving same, based on the position of the law that facts admitted need no further proof. He placed reliance on the case of Akinlagun v. Oshoboja (2006) 5 S.C (pt 11) at 122. Apkan Obong Udofia & Anor v. Okon Akpan Udo Afia (1940) 6 WACA 216 at 219, Section 123 of the Evidence Act 2011.In arguing the second issue learned counsel submits that the defendants failed to prove their counterclaim. 5. Submission of Counsel to the Defendants/Counterclaimants At the close of trial, learned counsel for the Defendants/Counterclaimants filed a 7-page final written address on 10/4/18 wherein 2 issues were set down for determination;- 1. Whether the claimant has proven his case. 2. Whether the defendants have proven their counterclaim. In arguing these issues, learned counsel submits that apart from the arrears of November and December, 2015 salary which is admitted by the Defendants, the other claims are unproven and should be dismissed. He submits that the claimant has failed to prove his claim. He submits that the onus of proof is on the claimant to establish his claim as it is settled law that he who asserts must prove as provided in Section 131(1)(2) of the Evidence. He states the case of Okoye v. Nwankwo (2014) 15 NWLR (Pt 1429). Learned counsel further submits that an order for the payment of the sum of $11,000 being half month arrears of salary for the period of 1st January 2016 to 12th January 2016 be dismissed as there is no basis for the payment, also that the claim for payment of shipping cost for the belongings of the claimant from Nigeria to Holland be dismissed as there is no contractual basis for it whatsoever. On the second issue, learned counsel submits that the Defendants have proved their counterclaim; that the contractual three months notice was not given by the claimant; that the claimant’s appointment was deemed confirmed. He submits that in conformity with the terms and conditions in Exh D2 which provides that the prevailing party shall be entitled to reimbursement from the losing party for reasonable attorney’s fees and cost, they urged the court to grant the relief accordingly 6. Decision I read and understood all processes filed by the learned counsel in this case. I listened with attention to the oral testimonies of the witnesses called and watched their demeanor. I also heard the oral submissions by learned counsel on either side and evaluated all the exhibits tendered and admitted. Having done all this, I hereby adopt the two issues for determination as raised by the learned Counsel thus:- 1. Whether based on the evidence adduced, the claimant has proved his case to entitle him to the reliefs sought before this honourable court. 2. Whether the Defendants have proved their counterclaim. The facts of this case as deducible from the pleadings and evidence led by parties are that the Claimant was employed by the Defendants by a letter dated 13/6/14 as General Manager, Production. The terms and conditions of the engagement were well stated in Exh. C1. Among others, Claimant alleged a breach of the terms and conditions of the contract by the Defendants in that he was not provided befitting accommodation and was owed 2 months salaries. By Exh. D2 dated 12/1/16, the Claimant suggested suspension of his employment contract as of that date for the duration of his forced absence from Nigeria and further spelt out conditions for his return to work. Claimant here sought payment of the 2 months outstanding salaries of Forty Four Thousand US Dollar as well as Eleven Thousand US Dollar for the half month of January that he worked. It is the case of the Defendants/Counterclaimant that the Claimant abandoned his employment; that he failed to comply with the terms and conditions of the contract respecting termination and that there is no provision for suspension of employment contract in the contract document which the parties executed. The law remains trite that the burden of proof is always on he who asserts. This burden is discharged by adducing credible, cogent and admissible evidence which evidence may be oral, documentary or even both. It is usually in situation in which there is admission of material facts that the imperative of proof is dispensed with. For, it is trite that facts admitted need no further proof. The reliefs sought by the Claimant are mainly 5 in all. The first is for an order for payment of the sum of 44,000 USD (forty-four thousand US Dollars) being arrears of salary for the months of November 2015 and December 2015 at the rate of 22,000 USD ( Twenty-Two Thousand US Dollars) per month. The contract of employment of the Claimant stated that he was entitled to $22,000 a month. Claimant alleged that he was not paid salaries for the months of November and December 2015. He sought Court's intervention for same to be paid to him. The Defendants in paragraph 4 of the 1st and 2nd defendants’ statement of defence, and paragraph 3 of the defendants’ witness statement on oath admitted owing the Claimant’s salary for the months of November and December 2015 at the rate $22,000.00 per month. The Defendants stated that failure to pay was due to the severe exchange restriction caused by government’s foreign exchange policy at the time. It is trite law that facts admitted need no further proof. See Fasuba v. Adumash (2001) LPELR – 5232(CA). See also Patama Limited v. UBN Plc (2015)LPELR-24535(CA). The Defendants were under a contractual obligation to pay to the Claimant his salary as agreed on a monthly basis. Failure to do so in the months of November and December 2015 was a breach of their contractual obligation. It is the duty of the Court to give effect to contract voluntarily entered to by the parties. Having admitted failure to honour its contractual obligation to the Claimant, the need to prove same again is dispensed with. The Defendants are here ordered and directed to pay to the Claimant the sum of $44,000 being the unpaid salaries of the Claimant for the months of November and December 2015 as admitted. The second relief is for an order for payment of the sum of 11,000 USD (Eleven Thousand US Dollars) being half month arrears of salary for the period of 1st September 2014 to 14th September 2014. The Claimant had averred that even though he resumed work with the Defendants on 1/9/14 he was only paid half salary for the month of September 2014. The law is trite that mere averments without evidence go to no issue. Aside from the averment of the Claimant on this issue, I find Exh. D4 being the Personal Data Form filled by the Claimant as indicating that he was employed on 01/09/14. The Defendants did not offer any reason as to why by Exh. D4 the Claimant was indicated to have been employed on 1/9/14. I find and hold that the Claimant was employed and worked for the Defendants from 1/9/14 and hence entitled to his salary for the period of first half of the month of September 2014. The Defendants are thus ordered to pay to the Claimant the sum of $11,000 being the Claimant's salary for the period 1st to 14th September, 2014. The third relief is for an order for the payment of the sum of 11,000 USD (Eleven Thousand US Dollars) being half month arrears of salary for the period of 1st January 2016 to 12th January, 2016. The Claimant in his Statement of Facts and witness deposition stated that he is entitled to half month salary for the month of January 2016. Exh.D2 which stated that the Claimant would be leaving Lagos on that very day was dated 12/01/2016; the Defence Counsel in paragraph 10 of his final written address argued that: “…The opening statement in the Claimant’s mail of January 12, 2016 (Exhibit D1) ''As anticipated last week, I will be leaving Lagos this morning…” further confirm that he spent January 2016 preparing to leave the country with his family and not working for the Defendant. (Emphasis is mine) The Counsel further argued in the said paragraph 12 of the final address and paragraph 4 of the 1st & 2nd Defendant’s Statement of Defence that the Defendants are not owing the Claimant half salary for the month of January 2016 as the Claimant did not work at all in January 2016 but abandoned his job and left the country. In the same vein, the Defendants stated paragraph 15 of the said final address that “it is an undisputed fact that the Claimant resumed in September 2014 and worked till January, 2016 ...He worked for One year and four months” (emphasis mine). Calculating 1 year and 4 months from September 2014 actually includes January, 2016. The Defendants can be said to be approbating and reprobating at the same time in their arguments. The Defendants had failed to inform the Court what the Claimant was doing during the period under consideration if indeed the Claimant did not work for them. It is my finding that the Claimant worked for the Defendants till the 12th of January 2016. The Defendants are accordingly ordered to pay to the Claimant the sum of $11,000 being his salary for the period 1st to 12th January 2016. In respect of the fourth relief sought by the Claimant which is the cost of shipping his personal effects back to Holland, the Claimant tendered Exh. C3 to show the cost of the said shipment, it is trite on the principle of pacta sunt savanda that parties are bound by their agreement, see Seed Vest Microfinance Bank Plc & Anor. v. Ogunsina & Ors. (2016) LPEL-41346 (CA) & Insheno v. Julius Berger (NIg.) Plc. (2008) NWLR (Pt. 1084) 582. Exh. C1 (which is the same as Exh. D1) which states the agreement and terms of employment between the parties is quite explicit. The only expenses agreed upon to be reimbursed by the Defendants are set out in the offer of Appointment thus: “Reimbursement of Expenses:- You will be expected to incur various business expenses company shall reimburse you for expenses from time to time, on request and presentation of receipts, subject to Company’s policy regarding the treatment of such expenses”. The expenses referred to by the Claimant in his relief 4 can best be described as personal expenses and not business expenses as they are for the shipment of his personal effects, which the defendants are not responsible for. I find and hold that this head of claim is not proved. Same is refused and dismissed accordingly. Relief number 5 is for damages in the sum of Two Million Naira as general damages while Relief 6 is for 21% interest per annum on Judgment sum. In Afolabi v. Ola (2016)LPELR (CA) the Court reiterated the fact that the law regarding general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be specifically pleaded and strictly proved. In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued. See the cases of UBN Plc. v. Ajabule (2011) 18 NWLR (Pt. 1278) 152 SC & Husseni v. Mohammed (2015) 3 NWLR (pt. 1445) 100. I note that the wrong done to the Claimant in the instant case is failure of the Defendants to pay him sums of money due to him. This Court has already in this Judgment made findings in favor of the Claimant and directed the Defendants to pay accordingly. There is no additional complain by the Claimant except as noted. To further award damages to the Claimant will amount to double punishment. The Court has ordered to be paid to the Claimant what is due to him. No additional award will be made. I refuse and dismiss this head of claims for lack of proof. Having dismiss the claim for damages same goes for payment of interest. The second issue for determination is whether the Defendants have proved their counter claims or any of them The counter claims of the Defendants are 2 in number. They are as follows - 1. An order that the Claimant pay to the Defendant/Counter Claimant three months remuneration at the rate of $22,000 per month totalling $66,000 being payment to the Defendant/Counter claimant in lieu of notice of the Claimant's termination of appointment as contracted by the parties. 2. An order that the Claimant pay to the Defendant/Counter Claimant the sum of =N=6,000,000.00 being Defendant/Counter Claimant's attorney's fees, costs and expenses in this suit. The law regarding counter claim is that it is akin to a fresh and independent matter. See Messrs Dee's v. Amoke (2010) LPELR-9024 (CA). It is a procedure which allows a Defendant to maintain an action against the Claimant provided the action is related to the principal or main suit. See BOCAS Nigeria Limited v. Wemabod Estates Limited (2016) LPELR (CA) The first counter claim is for an order that the Claimant pay to the Defendant/Counter Claimant three months remuneration at the rate of $22,000 per month totalling $66,000 being payment to the Defendant/Counter claimant in lieu of notice of the Claimant's termination of appointment as contracted by the parties. The contention of the Defendants is that under the contractual terms and condition, there is a notice period of 3 months to be given by either party or payment of 3 months' salaries in lieu. Now, under Exh. C1, - ''Either party will be required , after confirmation, to give a minimum of three months notice of disengagement or pay three months remuneration in lieu of notice''. By the above clause, confirmation of appointment of the Claimant is a condition precedent to the giving of 3 months notice or payment of 3 months' salary in lieu. Again, under Exh. C1, the clause dealing with Probationary Period, Performance and Review states thus - ''You will be placed on twelve month probationary period from the date of this employment. Thereafter, your performance will be appraised and reviewed in line with the Human Resources policy of Chicason Group. Upon satisfactory performance, your appointment will be confirmed''. It was the submission of learned Counsel to the Defendant/Counter claimant that the Defendant having allowed the Claimant to work beyond the 12 months' probationary period, the appointment of the Claimant must be deemed to have been confirmed. Learned Counsel cited in support of his argument OAU v. Onabanjo (1991)5 NWLR (Pt. 193) 549 & Reliance Telecommunications Limited v. Olaore Olufemi Adegboyega (2017)8 CLRN and further urged the Court to hold that the Defendant as the employer had waived its right. I must emphasise in clear terms that these cases as cited are not helpful within the context of the instant case. In the two cases cited, all that was involved was mere confirmation and nothing more. However in the instant case, it is not just a matter or question of confirmation. Under the contract of service, the performance of the Claimant has to be appraised(emphasis mine). Not only that the performance of the Claimant also has to be reviewed(emphasis mine). Thirdly, the appraisal and review both have to be in line with the Human Policy of Chicason Group. It is after the appraisal and review in line with the Policy of the 2nd Defendant are found satisfactory that the employment of the Claimant would be confirmed. In the instant case, there was neither an appraisal nor a review in line with the policy of the 2nd Defendant. There is no evidence of such. There is also no evidence of any confirmation by the Defendants. It must be borne in mind also that in all cases in which the principle of deemed confirmation was applied, it was raise by the employee and applied by the Court for his benefit. This Court will not allow the Defendants in the instant case to benefit from their failure to take steps to do the right thing as provided under the contract of service. I hold that the Defendant is not entitled to this head of counter claim for lack of proof as required. The second head of counter claim is an order that the Claimant pay to the Defendant/Counter Claimant the sum of =N=6,000,000.00 being Defendant/Counter Claimant's attorney's fees, costs and expenses in this suit. The sum claimed by the Counterclaimant here is akin to a claim for special damages. It is a sum certain. See Ngilari v. Mothercat Limited (1999) LPELR-1988. They must be specially pleaded and strictly proved. See Agunwa v. Onukwe (1962) 1 ALL N.L.R 537. Defendants/Counter claimant have simply made a claim for a lump sum of money a sum certain without leading evidence into how they arrived at the amount claimed. Special damages are not just for the asking. Whoever is desirous to be awarded special damages is under an obligation to adduce cogent and reliable evidence with special attention and focus on how he arrives at the figure claimed. These are not evident in the instant case. Not having been proved, I refuse and dismiss this head of counter claim. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, 1. The Defendants are here ordered and directed to pay to the Claimant the sum of $44,000 being the unpaid salaries of the Claimant for the months of November and December 2015 as admitted. 2. The Defendants are ordered to pay to the Claimant the sum of $11,000 being the Claimant's salary for the period 1st to 14th September, 2014. 3. The Defendants are ordered to pay to the Claimant the sum of $11,000 being his salary for the period 1st to 12th January 2016. 4. All other claims and counter claims are refused and dismissed. 5. The Defendants are ordered to pay to the Claimant the sum of =N=200,000.00 as cost of this proceedings. 6. The entire Judgment sums are to be paid by the Defendants with interest at the rate of 10% per annum. 7. All the terms of the Judgment are to be complied with within 30 days from today. Judgment is entered accordingly. _______________________ Hon. Justice J. D. Peters Presiding Judge