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JUDGMENT 1. Introduction, Claims and Counter claims The Claimant commenced this suit by a Complaint & Statement of facts dated 10/3/16 and by his Amended General Form of Complaint and Statement of Facts dated 16/2/18 sought the following reliefs against the Defendant - 1. An Order for the payment of the sum of =N=4,650,000.00 (Four Million, Six Hundred and Fifty Thousand Naira only) as arrears of Salary from August 2013 till February, 2016, 2. An Order for the payment of the sum of =N=150,000.00 (One Hundred and Fifty Thousand Naira Only) as monthly salary from March 2016 till date of judgment. 3. Cost of institution this action. The Defendant denied liability to the Claimant by its Amended Statement of Defence filed on 15/10/18 and counter claimed as follows - 1. An Order of this Honourable Court directing the Claimant to pay the sum of =N=1,500,000.00 (One Million Five Hundred Thousand Naira) only being the value of the Defendants’ car the claimant refused to handover. 2. The sum of =N=500,000.00 (Five Hundred Thousand Naira) being the loss incurred as a result of the car being taken away. 3. General Damages in the sum of =N=1,000,000.00 (One Million Naira). 4. Cost of this Action. The processes filed by the Defendant included list of witness, witness statement on oath and well as list and copies of documents to be relied on at trial. 2. Case of the Claimant On 23/10/18, the Claimant opened his case, testified in chief, adopted his witness deposition dated 16/2/18 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted without objection and marked as Exh. WO1-Exh. WO5. Witness further adopted his additional statement on oath dated 16/2/18 as his additional evidence in chief. The case of the Claimant as revealed from evidence led is that the Defendant is the owner and operator of many quarry sites all over the country including those at Abeokuta Ogun state of Nigeria; that he was employed by the Defendant at its Abeokuta quarry site as a Deputy Manager on an annual salary of =N=900,000.00 vide the letter of employment dated 20th June, 2006; that upon his employment he carried out his duties diligently and due to his dedication to duties, honesty and hard work the Defendant promoted him to the level of Manager with effect from 1st May 2007 vide the Defendant’s letter dated 5th April 2007 on a salary of =N=960,000.00 per annum; that due to his hard work loyalty and dedication to duties the Defendant increased his consolidated monthly salary in 2009 to =N=120,000.00 with effect from November 2009 vide the Memo dated 10th November 2009; that due to his hard work, dedication to duties and personal commitment to the survival of the Defendant in its Challenging times the Defendant increased his salary from =N=120,000.00 to =N=150,000.00 per month vide the Memo dated May 31, 2012; that at all material time of his employment he has been conducting himself in accordance with the rules and regulations of the defendant, observing the principles and standards of the company at all times and never acted in any way that brought the company’s name into disrepute; that he never conducted himself in anyway adjudged by the Defendant as gravely disadvantageous to its set goals and objectives; that he never divulged sensitive/confidential information of the Defendant to a third party or competitor, nor was any ground of misconduct like refusal to comply with instruction leveled against him; that he has never been found incompetent to perform his duties nor was any or his conduct resulted in any financial loss to the Defendant and that he never acted in any way that undermined the Defendant’s goals and objectives. Claimants further averred that he has always worked very hard, remained loyal and dedicated to his duties to the Defendant but for no apparent reason the Defendant locked its company’s gate against him since December 18, 2013; that he has been presenting himself for work since then and the Defendant would neither give him work to do nor pay him his salaries at the end of every month; that he made personal representations to the Managing Director of the Defendant severally and he kept assuring him that all was well but could not tell him why he was not being given any work to do nor being paid his salary despite making himself available for work every working day; that he caused his Solicitor to write the letter dated 4 December 2015 to the Defendant which it received but never responded; that his monthly salary of =N=150,000.00 was last paid to him in July 2013 and the Defendant has not paid him any salary from August 2013 till date which is a period of 31 months; that the Defendant is owing him the sum of =N=4,650,000.00 (Four Million, Six Hundred and Fifty Thousand Naira Only) as arrears of salary from August 2013 till February 2016; that he is also entitled to the sum of =N=150,000.00 (One Hundred and Fifty Thousand Naira Only) as monthly salary from March 2016 till date of Judgment and that the Defendant has not determined his employment and his services have not been terminated in any manner. Under cross examination, the witness testified that he read and signed for Exh. W01; that recognition of his service he was issued Exh.W03 and Exh.W04; that this shows defendant is concerned about the condition and welfare package for staff; that he has been going to work but he was never allowed into the premises; that the Head office of Defendant is in Lagos; that he was given letter of employment at Abeokuta; that Defendant’s Head office used to be at Abeokuta where he was interviewed; that he was employed as an Electrical Engineer and rose to the level of Manager; that his duty was essentially to oversee the staff under him; that he does know anything about the shutting down of the Defendant; that normally the Defendant closes down every December to resume in the following January; that when he was not allowed entry into the Defendant he called the Managing Director who promised to call him back; that many staff of Defendant were shut out of the company at the time and that with the people that shut out the Defendant could not carry out its operation. 3. Case of the Defendant The Defendant opened its defence on 23/10/18 and continued on 27/11/18. The Defendant called one Bamidele Osanyin its General Manager as its lone witness. The witness adopted his 2 witness depositions both dated 15/10/18 and tendered 6 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D6. The case of the Defendant, in brief, is that it employed the Claimant; that it was having some challenges with its site operation due to vandalisation of its equipment; that the Defendant’s Management held several meeting with the Staff, communicating its dismay to willful disruption of the sites operation through deliberate vandalisation and sabotage of company equipment; that the letter dated 6th December 2012 was written to all staff upon their failure to abate the unscrupulous acts complained of at the meetings held with them; that it, in the interest of the staff, did not report the erring staffs to the Police, but consistently warned them in order to maintain its human face policy; that the Claimant had knowledge of the willful disruption of the sites operation by unscrupulous staff but failed to take step because of his involvement in the said acts; that suffered huge financial loss as a result of the Claimant's involvement in the willful disruption of the site operation; that its site was temporarily shut down from operations for the purpose of restructuring and total overhauling of the Defendants business, as a result of the incessant mismanagement by the staffs, under the supervision of the Claimant, with letter dated 9th of September, 2013, issued and served on all staff; that the Claimant was aware of the internal memo dated 9th September, 2013, having stopped coming to the sites after operations was absolutely shot-down; that when the Claimant became aware of the Defendant's intention to serve him with the letter of termination, he evaded service and equally went away with the company’s car in his custody; that the Claimant as the Deputy Manager of the Abeokuta site was in possession of the said Toyota Camry car with registration No BJ 413 AGL which he never handed over to the Defendant upon the termination of his employment and was at a point in time involved in an accident while driving the said car. While being cross examined, DW1 stated that he is General Manager of the Defendant; that he was employed in April 2012; that he was also given an official car by the Defendant - a Toyota Corrola Car; that he made an acknowledgment of receipt of the car; that Security was provided at the Defendant site; that the security there was of porous; that report that indicted the Claimant is at the Head Office; that he is aware that the Claimant reported Defendant to Human Rights Department in Ogun State; that he was part of the team that represented Defendant there; that it was after Claimant’s employment was terminated that he reported the Defendant to Human Right Department; that he knew Claimant was served his letter of termination of employment; that he does not know how the Claimant was served letter and that the Defendant has been failing to fulfil its obligation since 2012 including payment of salary to workers. Witness further added that the Defendant was in operation when Exh. D1 and D2 were issued; that the book value of the car given to the Claimant as at 9/9/13 was =N=1,500,000.00; that the indebtedness of the Defendant to the Claimant is about Three Hundred Thousand Naira; that he does know how much his pension is; that the Claimant is not entitled to gratuity; that the Defendant only stopped remitting pension deduction in 2012 when it started having financial challenges; that the Defendant wrote to the Claimant to return Defendant’s property in his custody and that the Defendant did not report the issue of vandalisation to the Police. 4. Submissions of learned Counsel At the close of trial, learned Counsel to the Defendant/Counter Claimant filed his final written address on 20/12/18 and set down 2 main issues for determination as follows - 1. Whether, in the light of the Claimants’ pleadings, written Statements on Oath of witnesses, as well as the various documents with which this Honourable Court has been availed, the Claimant is in anyway entitled to any of the prayers prayed in his amended Statement of Facts dated 16/2/18. 2. Whether, in the light of the Defendant/Counter Claimants’ pleadings, written Statements on Oath of witnesses, as well as the various documents with which this Honourable Court has been availed with, the Defendant/Counter Claimant is in anyway entitled to any of the prayers prayed in her amended statement of Defence/Counter Claim dated 15/10/18. Arguing these issues, learned Counsel submitted that the law is trite that where an employee complains of wrongful termination of his employment, he has the onus to place before the Court the terms of the employment and to prove in what manner the said terms were breached by his employer, citing Oloruntoba-Oju v. Lawal (2001) FWLR (Pt. 72) 2029 at 2033; that in the instant case, Claimant had reduced his claim to demand for outstanding salaries purportedly due to him from his employer for a certain period but has failed to justify his claims citing Ohue v. NEPA (1998)7 NWLR (Pt. 557) 187; that Claimant has failed to place before the Court a Pay slip to establish when his last payment was made to him; that the Claimant failed to explain how he came by the figure he claimed and that the Claimant having admitted to being barred from entering the premises of the Defendant he is not entitled to any salary from the Defendant. On the counter claim, learned Counsel submitted that there is evidence led to establish that an official car was allocated to the Claimant (notwithstanding that Claimant claimed not to have acknowledged same) which the Claimant is yet to return same to the Defendant. Counsel urged the Court to find for the Defendant/Counter claimant and dismiss the case of the Claimant. Counsel to the Claimant filed his final written address on 20/2/19. Learned Counsel set down 2 issues which are in all material particulars and content similar to those set down by the Defendant. The issues are as follows - 1. Whether having regard to the totality of evidence of the Claimant before Honourable Court, the Claimant is entitled to the reliefs sought in this suit. 2. Whether having regard to the totality of evidence of the defendant/counter-Claimant before Honourable Court, the defendant/counter-claimant is entitled to the reliefs sought under her counter-claim in this suit. Learned Counsel argued that there is no cogent or credible evidence before the Court to support the assertion that the employment of the Claimant was ever terminated by the Defendant; that there is no evidence to prove that the Claimant was served the alleged letter of termination of appointment dated 3/9/14 and that the burden is on the Defendant to prove that indeed same was served on the Claimant citing Osisanya v. Afribank Plc (2007)6 NWLR (Pt, 1031); the case of the Claimant is not one of wrongful termination of employment but that of none termination of employment. Counsel prayed that Court to find for the Claimant. Respecting the counter claim, learned Counsel submitted that while the Defendant claimed to allocate an official car to the Claimant, there is no evidence that such a car was allocated going by the evidence of DW1 under cross examination that it is the usual practice of the Defendant to have whoever it gives official car sign the letter of allocation acknowledging receipt; that the leg 1 of the counter claim must fail on this ground alone and that once the leg 1 fails, reliefs 2-4 of the counter claim must fail as well being ancillary reliefs and dependent for success on relief 1. Learned Counsel prayed the Court to dismiss the counter claim and grants the reliefs sought by the Claimant. 5. Decision I read and understood all the processes filed by learned Counsel on either side. I heard the testimonies of the witness called both in chief as well as under cross examination in addition to the oral submissions of learned Counsel. I carefully reviewed and evaluated all the exhibits tendered and admitted in this case. Having done all this, I adopt the 2 issues as set down by the Defendant for the just determination of this case as follows - 1. Whether, in the light of the Claimant's pleadings, written Statements on Oath of witnesses, as well as the various documents with which this Honourable Court has been availed, the Claimant is in anyway entitled to any of the prayers prayed in his amended Statement of Facts dated 16/2/18. 2. Whether, in the light of the Defendant/Counter Claimant's pleadings, written Statements on Oath of witnesses, as well as the various documents with which this Honourable Court has been availed with, the Defendant/Counter Claimant is in anyway entitled to any of the prayers prayed in her amended statement of Defence/Counter Claim dated 15/10/18. The Claimant has the burden of proving his entitlement to the reliefs sought in order to be entitled to same. The proof required is by cogent and credible evidence. Except where there is a clear and unambiguous admission of material facts the imperative of proof remains. My understanding of the case of the Claimant is that he is not contesting or contending that his appointment was wrongfully terminated. Rather, his case is that his employment is yet to be terminated by his employer and that he kept reporting for work every day but was neither allowed into the premises of the Defendant nor given assignments to perform The first relief sought by the Claimant is for an Order for the payment of the sum of =N=4,650,000.00 (Four Million, Six Hundred and Fifty Thousand Naira only) as arrears of Salary from August 2013 till February, 2016. The evidence of the Claimant is that from August 2013 to February 2016 the Defendant has not paid him salary till the date of filing this action. By Exh. WO4, I find the monthly salary of the Claimant to be =N=150,000.00. In his evidence in chief, the DW1 testified that there was a decision to temporarily shutdown the Defendant for purpose of restructuring and overhauling; that the temporary shutdown was due to incessant mismanagement by staff and that there was a temporary suspension of contractual obligation of salary and entitlements of staff during the period of shutdown. I have the evidence of the Claimant on record to the effect that he was always presenting himself for work every day but that for no reason the Defendant locked its company against him; that the Defendant would neither give him work to do nor pay his salaries at the end of the month and that on making personal representations to the Managing Director of the Defendant he was assured that all was well. Now, the Defendant claimed to have terminated the employment of the Claimant via Exh. D4 dated 3/9/14. That exhibit was admitted without objection. I evaluated the exhibit. Though allegedly served on the Claimant, there is no evidence of service of same on the Claimant. There is no evidence that same was received by the Claimant. Indeed, under cross examination, DW1 had testified that he did not know how the exhibit was served on the Claimant. In any event, the copy of Exh. D4 tendered and admitted is an original. The question which arises is which copy was served on the Claimant if the Defendant was still in custody and possession of the original? I find Exh. D4 unreliable for the just determination of this case. I thus reject and discountenance same. I find no evidence to the effect that the employment of the Claimant was terminated at any time or that he was served a letter of termination of employment. I find sufficient evidence led by the Claimant respecting his entitlement to this head of claim. I therefore grant same accordingly. The Defendant is ordered to pay to the Claimant the sum of =N=4,650,000.00 (Four Million, Six Hundred and Fifty Thousand Naira) as arrears of Salary from August 2013 till February, 2016. The second relief sought is for an Order for the payment of the sum of =N=150,000.00 (One Hundred and Fifty Thousand Naira Only) as monthly salary from March 2016 till date of Judgment. Respecting the resolution of this relief, I am inclined to have a recourse to my finding as per relief 1. The evidence led by the Claimant is that since March 2016 when he filed this action, he has continued to present himself for work but was denied entrance into the Defendant and not given any assignment to perform. The fact remains that for all intents and purposes the employment of the Claimant has not been terminated by the Defendant. It is not denied the fact that the Claimant was always presenting himself for work without being given any to do by the Defendant. It is also a fact that his salaries have not been paid since March 2016 when this suit was filed till date. The fact of denying the Claimant entrance in to the premises of the Defendant cannot be taken as indicating the termination of his employment as suggested by the learned Counsel to the Defendant in paragraph 3.5 of his final written address. Claimant was employed by a letter of employment. That letter of employment signified the commencement of employment relationship between the parties. If therefore the Defendant is desirous of bringing that relationship to an end, it only makes simple sense that the Defendant would communicate its intention to terminate the relationship by a letter. This is trite bearing in mind that the Defendant as an employer is at liberty to dispense with the services of the Claimant at any time with or without reason. See Obanye v. Union Bank Plc (2018) LPELR (SC). I find that the employment of the Claimant has not been terminated. I hold that the employment is deemed terminated today by virtue of this Judgment. I find and hold that the Claimant is entitled to payment of his salaries from the commencement of this suit on 10/3/16 till today the date of this Judgment. This matter was filed on 10/3/16. That comes to 39 months in all. By the evidence led before me, the monthly salary of the Claimant was =N=150,000.00. (See Exh. WO4). I here order the Defendant to pay to the Claimant the sum of =N=5,850,000.00 (Five Million, Eight Hundred and Fifty Thousand Naira) only being the unpaid salary of the Claimant from March 2016 till date at the rate of =N=150,000.00 per month. The third relief sought by the Claimant is for cost of this action. The law is trite that cost follows event. This suit was filed on 10/3/16 a period of almost four years. Quite aside from financial outlays involved in this case, time is no doubt also money. In the circumstances of this case I award the sum of =N=100,000.00 as cost payable by the Defendant to the Claimant. On the second issue set down for determination, by its amended statement of defence and counterclaim dated 10/8/18, the Defendant counterclaimed as follows - (1). An Order of this Honourable Court directing the Claimant to pay the sum of =N=1,500,000.00 (One Million Five Hundred Thousand Naira) only being the value of the Defendants’ car the claimant refused to handover. (2). The sum of =N=500,000.00 (Five Hundred Thousand Naira) being the loss incurred as a result of the car being taken away. (3). General Damages in the sum of =N=1,000,000.00 (One Million Naira) and (4). Cost of this action. The law is trite that counter claim is akin to a fresh and separate matter on its own and as such it must be proved with sufficiently cogent, credible and admissible evidence for the reliefs sought to be granted. In Kwallo & Ors. v. Abbas(2016) LPELR (CA), Akeju JCA following the earlier decision in Maobison Interlink Associate Limited v. UTC Plc (2013)All FWLR (Pt. 694) 52 reiterated the position of the law respecting counter claim when his lordship stated that a counter claim is known in law as a claim made by the defendant in the same action filed against him. The counter claim is an independent claim or action wherein the defendant in the action assumes the position of the plaintiff while the plaintiff becomes the defendant. The burden of proving the counter claim and the standard of its proof are the same as any other civil action. An Order of this Honourable Court directing the Claimant to pay the sum of =N=1,500,000.00 (One Million Five Hundred Thousand Naira) only being the value of the Defendant's car the claimant refused to handover is the main or major counter claim. The Defendant is therefore expected to provide evidence is support of same. In proof of this head of counter claim, the Defendant averred that it allocated its company car valued at =N=1,500,000.00 to the Claimant while in its employment; that all efforts to retrieve the car with registration number BJ 413 AGL from the Claimant/Defendant to counter claim proved abortive and that the non-availability of the car caused the Defendant some inconveniences which amounted to financial loss. In support of its assertion, the Defendant/Counter claimant tendered Exh. D5. It was part of the evidence of DW1 under cross examination that he was given a Toyota car as an official car by the Defendant; that he made an acknowledgment of receipt of the car and that the Claimant too was given an official car. DW1 also tendered Exh. D5. It was the evidence of the Claimant that he was not allocated any official car by the Defendant; that Exh. D5 was specifically made for this case and that indeed he saw Exh. D5 in Court for the first time. How reliable is Exh. D5? I perused and carefully evaluated same. The exhibit was an internal memo allegedly allocating an official car to the Claimant while in the employment of the Defendant. There is no acknowledgment of receipt of same by the Claimant. DW1 while under cross examination testified that he acknowledged receipt of the official car allocated to him. There is no such acknowledgment by the Claimant/Defendant to the counter claim. Again, as with Exh. D4, the copy of Exh. D5 tendered is original. This raises the question as to which copy was delivered to the Claimant since the Defendant has been in possession and custody of the original all this while? I am constrained to hold and I so do that Exh. D5 was prepared solely for this case. I find Exh. D5 unreliable. I expunge same from this proceedings. I refuse and dismiss the first counter claim as sought for lack of proof. Counter claims 2, 3 and 4 are dependent on the success of counter claim 1. The first counter claim having therefore failed and are dismissed, reliefs 2 to 4 sought in counter claim must also fail and be dismissed. I have no hesitation in dismissing same accordingly. It is trite that you cannot put something on nothing and expect same to stand. It will without doubt collapse. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the claimant succeeds. I dismiss the entire counter claims of the Defendant in their entirety and direct as follows - 1. The Defendant is ordered to pay to the Claimant the sum of =N=4,650,000.00 (Four Million, Six Hundred and Fifty Thousand Naira) as arrears of Salary from August 2013 till February, 2016. 2. The Defendant is ordered to pay to the Claimant the sum of =N=5,850,000.00 (Five Million, Eight Hundred and Fifty Thousand Naira) only being the unpaid salary of the Claimant from March 2016 till date at the rate of =N=150,000.00 per month. 3. The Defendant is ordered to pay to the Claimant the sum of =N=100,000.00 as cost of this proceedings. 4. I dismiss the case of the Defendant/Counter claimant in its entirety. 5. All the terms of this Judgment are to be complied with within 30 days from today. 6. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge