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The Claimant commenced this action against the Defendants by way of a Complaint dated and filed the 20th of April, 2011. The reliefs sought by the Claimant against the 1st Defendant were for the following: I. A DECLARATION that the reasons given for suspending, demoting and placing the Claimant on probation are false and unconnected with the alleged incident which took place at the 1st Defendant’s project site on January 27, 2011. II. A DECLARATION that the Claimant’s suspension for a period of four weeks without pay and demotion, and placement on probation against the terms and conditions of his employment contract is wrongful and amounts to Constructive dismissal. III. The sum of N4, 671, 940.08K (Four Million, Six Hundred And Seventy-One Thousand, Nine Hundred And Forty Naira and Eight Kobo) representing his salary and other entitlements from February to December 25, 2011 as special damages. IV. The sum of N20, 000,000.00 (Twenty Million Naira) general damages for breach of the Claimant’s employment contract and for Constructive dismissal. V. AN ORDER mandating the 1st Defendant to provide the Claimant with proof of remittance of tax deducted from his salary on monthly basis from February 2011 to the relevant Government authority. AND against the 2nd Defendant: VI. A DECLARATION that the Recommendation of the Panel dated February 23, 2011 constituted by the 2nd Defendant and made up of its employees and/or representatives or those authorized to act on its behalf, wherein the Claimant was suspended, demoted and placed on probation in the employment of the 1st Defendant is an unlawful interference with the Claimant’s employment contract with the 1st Defendant. VII. A DECLARATION that the Recommendation of the Panel February 23, 2011 constituted by the 2nd Defendant and made up of its employees and/or representatives or those authorized to act on its behalf, wherein the Claimant was suspended, demoted and placed on probation in the employment of the 1st Defendant an inducement on the 1st Defendant to breach its contract of employment with the Claimant. VIII. The sum of N20, 000, 000.00 (Twenty Million Naira) general damages for interference of the Claimant’s contract and inducing its breach by the 1st Defendant. VIII. Cost of instituting and prosecuting this action jointly and severally against the Defendants on indemnity basis. The Complaint was accompanied with a verifying affidavit, a Statement of Facts, list of witnesses, list and copies of documents to be relied upon at trial. The 1st defendant on 13th June 2011 filed a memorandum of appearance, a Statement of Defence, list of witnesses, list and copies of documents to be relied upon at trial. The 2nd Defendant also on 7th July 2011 filed its Memorandum of Appearance, Statement of Defence, list of witnesses and list and copy of document to be relied upon at trial. The Claimant with leave of Court granted on 22nd day of July, 2011 amended his Complaint and Statement of Facts. The Claimant’s list of witnesses to be called at trial was also amended pursuant to leave of court granted on 26th of September, 2011. The Amended Complaint dated and filed on the 18th day of July, 2011 is similar in all its reliefs with the original reliefs as reproduced above except in paragraphs VI and VII which I hereby reproduce for ease of reference: VI. A DECLARATION that the Suspension and demotion contained in the Suspension Notice dated February 14, 2011 and/or the Recommendations of the Disciplinary Panel dated February 23, 2011 constituted by the 2nd Defendant and made up of its employees and/or representatives or those authorized to act on its behalf, wherein the Claimant was suspended, demoted and placed on probation in the employment of the 1st Defendant is an unlawful interference with the Claimant’s employment contract with the 1st Defendant. VII. A DECLARATION that the Suspension and demotion contained in the Suspension Notice dated February 14, 2011 and/or the Recommendations of the Disciplinary Panel dated February 23, 2011 constituted by the 2nd Defendant and made up of its employees and/or representatives or those authorized to act on its behalf, wherein the Claimant was suspended, demoted and placed on probation in the employment of the 1st Defendant is an inducement on the 1st Defendant to breach its contract of employment with the Claimant. Furthermore, the 1st and 2nd Defendants equally filed consequential amendments to their respective statements of defence in this action. The case went to trial on the 8th of December, 2011 and parties put forward and closed their respective cases and filed final written addresses which were adopted finally on the 25th of July, 2012. 1ST DEFENDANT’S WRITTEN ADDRESS After giving an introduction and a brief summary of the facts of the case, learned counsel for the 1st Defendant formulated the following issues for the determination of the Court: (a) Whether the relationship between the Claimant and the 1st defendant is that of Master and Servant which is strictly regulated by the contract of employment, incorporated collective agreements and worksite Policies and Rules of the 2nd defendant? (b) Whether there has been a Breach of the contract of employment and if so by whom? (c) Whether the Claimant is entitled to Damages of the nature sought by the Claimant in this Suit and whether the Honourable Court can award same? The 1st defendant submitted that the relationship between the Claimant and herself fall under the category of a pure Master — Servant relationship as same is contractual and has no statutory flavour. The Claimant vide paragraph 4 of his statement on oath, agrees that his relationship with the 1st defendant is based on Exhibit “A” which is his initial contract of employment for one year 2009 — 2010 that was renewed for another one year by Exhibit “B”. It is the 1st defendant’s contention also, that the National Joint Industrial Council (NJ1C) Agreement also regulates the employment of the Claimant with the 1st defendant as provided for by Section 9(c) of Exhibit “A”. The NJIC Agreement is before the Court as Exhibit W3 tendered by the 1st defendant. The 1st defendant further submitted that by Section 11(e) of Exhibit “A”, the Claimant’s Contract of Employment, Policies, Site Rules and Procedures issued by the 2nd defendant which is the Client of the 1st defendant also binds and regulates the Claimant in the course of his employment with the 1st defendant. That under Cross-examination, the Claimant agreed that worksite Rules and Policies of the 2nd defendant also regulate his employment; and that Exhibit W4, which is the Project Culture Plan and EGTL Harassment and Violence Policy Procedure is one of such worksite Rules and Policy that regulate the employment of the Claimant. This piece of documentary evidence was not challenged nor controverted in any material particulars in the course of the proceedings in this suit. Based on the foregoing, it is the 1st Defendant's submission that the relationship between the Claimant and the 1st defendant being that of Master and Servant without any Statutory flavour, this Honourable Court in determining the rights and liabilities of both parties under the relationship must look only at Exhibits “A, B, W3 and W4”. These Exhibits are the only determinants of the rights and liabilities of the parties to this Employment Agreement. The learned counsel to the 1st Defendant referred to the Cases of MICHELIN (NIG) LTD Vs. ALARIBE [2010] ALL F.W.L.R PART 543 Page 1998 at 2012 PARA. E (especially at P. 2000 ratio 1). The 1st defendant's counsel then urged the Honourable Court to disregard the Claimant’s claim under cross-examination that Exhibit “W3” does not regulate his contract. To the 1st Defendant, where a collective agreement such as Exhibit “W3” is incorporated or embodied in the conditions of a contract of employment whether by implication or expressly as it is in this case, it will be binding on the parties, and he relied on the case of OGUEJ1OFOR Vs. SIEMENS LTD [2008) ALL F.W.L.R PART 398 Page 378 at 390 PARA F-H (Especially page 380 ratio 4). Counsel continued that apart from the relationship between the Claimant and the 1st defendant being that of Master and Servant, the Claimant's contract of employment is for a fixed duration of 1 year. (See Section 3(a) of Exhibit “A”) and it is a contract where you have to work physically to earn your pay as Section 17(d) of Exhibit “A” and Article 36 “D” of Exhibit W3 make it expressly clear that the principle of NO WORK NO PAY applies to the contract of employment. The 1st defendant further submitted that the Claimant’s contention that his contract is strictly between himself and the 1st defendant and does not recognize the position of the 2nd defendant, as not only the client but the controlling interest in the work site vide the claimant’s evidence in the suit, is false in face of the documentary evidence before the court. In Exhibit “A”, that the 2nd defendant is the client whose job the claimant has been employed to do is expressly stated in the 1st page of same. Section 11(e) of Exhibit “A” makes the claimant subject to the site policies, procedures and Rules issued from time to time by the 2nd defendant. That finally on this issue, it is the submission of the 1st defendant, that the relationship between the claimant and the 1st defendant is that of a Master and Servant which is governed by the provisions of Exhibits “A, B, W3 and W4” and that these are the documentary evidence upon which the Honourable Court should apply the law in determining the rights, obligations and entitlements of the parties in this suit. Arguing the second issue, learned 1st defendant's counsel stated that having established that the relationship between the Claimant and the 1st defendant is that of a Master and Servant regulated by Exhibits “A, B, W3 and W4”, it is then pertinent to proceed to the second issue of whether there has been a breach of these agreements and which of the parties has occasioned the breach. According to the counsel, it is the claimant's contention that his suspension for a period of four weeks without pay, demotion and placement on probation is a breach of the terms of his contract and as a result, wants the court to declare that this breach amounts to a dismissal. That the Claimant contends that section 18 of Exhibit “A” has been breached by the recommendation of the disciplinary panel as he can only be suspended for a maximum of ten working days. It is pertinent to state here, according to counsel, that the Claimants’ employment was never put on probation, and it was his demotion that was probationary. That it is the 1st defendant’s contention Vide paragraphs 25 — 43 of the statement on oath of MR. DICKSON AJOBOR EYENMENBAI that it was the claimant who breached the contract of employment by his actions. Counsel then submitted that there has been a breach of the claimant's contract of employment and that it was the claimant who breached the contract. He further submitted that the Disciplinary panel is a direct consequence of the claimant's unlawful actions in breach of his contract of employment. To counsel, it is admitted by all parties to this suit that it was the issue of the two day spill from January 8th to 10th of 2011 and the agitation for spill over allowance that gave rise to the events leading to this suit. He referred to paragraphs 6 and 7 of the claimant's statement on oath and his evidence under cross—examination. It is the 1st defendant’s submission firstly, that the claimant’s agitation for 2 days spill over allowance has no contractual foundation as the claimant has no contractual right to spill over allowance. Exhibits “A”, “B” and “G” which are documents tendered by the Claimant refer to remuneration and entitlement of the Claimant for actual hours worked as the Claimant’s remuneration is calculated on hourly basis. There is no provision for spill over allowance. There is a plethora of evidence before the Honourable Court that payment of spillover allowance is a practice totally subject to the approval of the 2nd Defendant and has NOTHING TO DO with the EMPLOYMENT CONTRACT of the Claimant. Continuing, counsel stated that it is the 1st Defendant's submission that in making this agitation for payment of a non—contractual entitlement the claimant breached sections 18 of Exhibit “A”, Article 34 of Exhibit W3 and the non-harassment policy set out in Exhibit W4. That section 18 of Exhibit “A” and Article 34 of Exhibit W3 capture the grievance procedure to be followed by the Claimant if and when he has a grievance. Therefore, to counsel, the Question before the court is whether from the totality of evidence before the court the claimant complied with these provisions of his contract in articulating his grievance? Counsel then answered No, and added that there is no evidence before the Honourable Court to suggest the following: (a) That the Claimant forwarded his complaint or grievance to the Admin. Department of the 1st Defendant within or not later than 24 hours after the issue of non—payment of spillover allowance arose in accordance with section 18 of his contract of employment. (b) That the claimant reported the matter to his Departmental Head, Project Manager or Management of the 1st Defendant in line with Article 34 (a)(b) and (c) of Exhibit W3. Instead the evidence before the court reveals that the Claimant wrote a damaging indictment contained in Exhibit “D” more than 2 weeks after the incidence against the 1st Defendant, his employer, to the 2nd defendant and officials of Chevron (Nig) Ltd, client to the 2nd Defendant. That the content of Exhibit “D” is so unequivocal as it expressly portrays the 1st Defendant as visiting not only injustice on her workers but intimidation, victimization and mobilization. He pointed out further that from evidence of both the claimant and the 1st Defendant before the court while some of the signatories to the said letter are not staff of the 1st Defendant company, majority of same are Junior staff on whose behalf the Junior staff union, NUCEFWW, was already agitating. That the claimant vide paragraphs 9 and 10 of his statement on oath attempted to rationalize his action by claiming that one MR. KIM of the administrative Department of the 1st Defendant informed them to channel their grievance to the 2nd Defendant. Counsel then urged the Court to disregard this piece of evidence as same is totally illogical and false. That firstly, save for the bare deposition contained in paragraph 9 of the Claimant’s statement on oath there is no evidence before the Honourable Court of the Claimant’s interaction with the Administrative Department of the 1st defendant over this issue. Secondly it is clear from evidence before the Honourable Court especially that of MR. JASON E. ONEMOKPE, the vice chairman of the junior staff union, that since majority of the affected workers were Junior staff the Junior staff union was already working on the amicable resolution of the issue, consequent upon which the union came up with a notification to workers contained in Exhibit W8 which was written 2 clear days before Exhibit D. That Exhibits W6 and W10 also show that on the issue of spill over allowance the 1st Defendant acted in utmost good faith and made considerable effort to have the 2nd Defendant approve the spill over allowance. The Claimant's action therefore as a senior staff in forming a coalition with junior staff of the 1st Defendant and non-staff of the 1st Defendant to indict the 1st Defendant before her client and others not only breaches the terms of his contract but amounts to gross misconduct. That there is no provision in the Claimant's contract of employment that empowers the Claimant to articulate his grievance by teaming up with non- employees to write inflammatory letter to 3rd parties against his employer. By writing Exhibit “D” the claimant embarked on a conduct that undermines the confidence which should exist between employee and employer and amounts to Gross-Misconduct. Counsel then referred to the case of UZONDU Vs U.B.N Plc (2008) All F.W.LR Part 443 Page 1389 at 1398 part F (Especially 1393 ratio 8). That by this same Exhibit “D” the claimant in total breach of his contract of employment invited the 2nd Defendant who he knows from evidence before the Honourable Court, controls the worksite and exercise control over the 1st defendant to intervene in the matter. The Direct result of this invitation is the disciplinary panel against which the claimant is complaining. The 1st Defendant reiterated his submission that Exhibit D amounts to gross misconduct, and a breach of the claimant’s contract of employment for which he was liable to summary dismissal. That what the Claimant points to as a breach of his contract is only the consequence of his breach of the contract of his employment. Counsel continued that it is trite that a party who has breached a contract which said breach was not condoned and/or affirmed by the other party of the contract cannot subsequently turn around to allege a breach of the same contract he has already breached. A party cannot subsequently rely on the terms of a contract he has breached when such a breach was not condoned/affirmed by the other party. That the principle of “discharge from liability by breach” would apply in the circumstances of this case and he referred to CHITTY ON CONTRACTS, 24TH EDITON, PAGE 6936 ARTICLE 1471. That in this same vein, the courts have held that a party to a contract cannot approbate and reprobate, referring to the case of LONGE Vs. F.B.N Plc (2006) ALL F.W.L.R Part 313 Page 46 at 71 Para B-C [especially page 53 ratio 81. He then urged the Honourable Court to disregard the evidence of the claimant and that of his witness FIDELIS OBANIKE suggesting that the alleged actions of the defendant was aimed at humiliating the claimant as a result of his alleged involvement in CCESSA Union activities as the claimant is unlawfully inviting the Honourable court to ascribe motives in the Determination of his contract of employment. Learned counsel then referred to the case of RIVERS VEGETABLE OIL COMPANY LTD Vs. EGMKOLE (2010) All F.W.L.R Part 544 page 111 at 124-125 Para F-A (especially at page 112 ratio 1) the Honourable Court held that it is not the place of a trial court to ascribe motives in the determination of a contract of employment. Continuing, counsel stated that assuming without conceding that the Claimant did not breach his contract of employment, the claimant’s request to the Honourable Court for a Declaration that his suspension and Demotion amounts to constructive Dismissal has no legal foundation. That firstly, the claimant’s employment was neither terminated nor was he dismissed and there is no evidence to that effect before the Honourable Court. Based on the claimant’s action and invitation contained in Exhibit “D” disciplinary action was taken against him and Exhibit “F” was issued to him. That, Exhibit “F” cannot amount to a letter of termination or dismissal in law. That Vide Exhibit F the claimant was suspended and demoted on probation as the employment was not terminated and neither was he dismissed. According to counsel, suspension in the course of an employment was expressly defined in the case of LONGE Vs. FIRST BANK OF NIGERIA PLC (2010) All F.W.L.R Part 525 Page 258 at 288 Para D-F [especially page 270 ratio 131 as a temporary privation or deprivation, cessation or stoppage of or from the privileges and right of a person. The word conveys a temporary or transient disciplinary procedure which keeps away victims or persons disciplined from his regular occupation either for a fixed or terminal period indefinitely. That suspension is neither a termination of the contract of employment neither is it a dismissal of the employee, citing the case of LONGE Vs. FIRST BANK OF NIG PLC (Supra) at page 309-310 PARA H-C (especially page 270-271 ratio 14). The suit was an affirmation by the Supreme Court in a decision reached by the Court of Appeal that suspension is different from dismissal and cannot amount to dismissal in the suit reported as LONGE Vs. FIRST BANK NIGERIA PLC (2006) All F.W.L.R Part 313 Page 46 at 72 Para D-E & G-H (especially at page 54 ratio 11). That the claimant claims that because he was suspended for 4 weeks instead of the 2 weeks allowed by his contract of employment therefore this amount to dismissal also has no legal foundation as his remedy in law would be to claim for what he would have earned throughout the period of suspension which was never authorized by the condition of his employment and not to request the court to declare that he has been dismissed and ask for damages. He then referred to the case of MOBIL PRODUCING NIG UNLIMITED Vs. UDO (2009) All F.W.L.R Part 482 Page 1190 ratio 14) where the court held as follows: “Where an employee can recover his remuneration within the period of suspension, he cannot in addition to the sum due claim general damages …. he is only entitled to what he would have earned throughout the period of suspension which was never authorized by his conditions of employment”. Learned counsel for the 1st defendant submitted further that the above also applies to the issue of demotion as the alleged demotion was clearly on probation. That under Exhibit W4 which regulates the employment of the claimant, one of the disciplinary actions which could apply to the claimant is demotion. It is, in evidence vide paragraph 54 of the witness statement on oath of Mr. DICKSON AJOBOR EYENMENBAI and the admission of the claimant under cross examination, that the claimant after the receipt of the panel’s recommendation headed for the Court, both the Delta State High Court and subsequently this Honourable Court to declare that his employment has been terminated constructively and he never reported back for work. That paragraph 54 was never challenged nor controverted in evidence. There is therefore no doubt that it was the claimant who of his own volition stopped working contrary to section 18 of Exhibit A which defines the employment period of the claimant and Section 17(d) of Exhibit A which notes that the principle of “No Work No PAY” shall apply to the claimant’s contract. That Article 36(d) of Exhibit W3 also makes the principle of No work No Pay applicable to the Claimant’s contract. Finally counsel submitted on the second issue for determination that it is the claimant who breached the employment agreement by failing to comply with the grievance procedure contained in Exhibits “A” and “W3” and instead he chose to unlawfully connive with non-employees of the 1st Defendant to write Exhibit “D” when it was obvious in the face of Exhibits “W8”, “W6”, “W10” and “W9” (1-9) that the 1st defendant was doing everything possible to amicably resolve the issue. He then urged the court to hold that the claimant by his action and his failure to turn up for work terminated his employment as contained in Section 18(F) of Exhibit “A”. On the 3rd issue learned counsel for the 1st defendant submitted that the claimant is neither entitled to the damages he is claiming neither can the Court lawfully award same to the Claimant. That on reliefs I and II of the claimant, the 1st defendant repeats his argument contained in paragraphs EI, EII, EIII, EIV, EV, EVI, EVII and EIX of this address and the cases cited therein and further states: (a) That it was the claimant who breached his employment contract and that the claimant's suspension and demotion on probation is the consequence of his breach of his employment agreement. (b) Under the law suspension and demotion cannot equate to dismissal and as such the court cannot equate them to be so. The case of MOBIL PRODUCING NIG LTD Vs. VIDO (cited Supra) at page 1224 Para f-g [especially at page 1186 ratio 11) buttresses this legal fact. (c) That the claimant not only stopped work of his volition and as such terminated his appointment with the 1st defendant by virtue of the operation (of) section 18(f) of Exhibit “A” his contract of employment. That assuming without conceding that the claimant is entitled to the twin declaration reliefs and the court grants them with the effect that the claimant was dismissed, will the claimant be entitled to his reliefs III, 1V and V claimed against the 1st defendant? The answer according to counsel is an unequivocal NO. That the pertinent question to ask at this point is, what the measure of damages an employee in a Master Servant relationship whose employment was wrongly dismissed is entitled to. That the Supreme Court in the case of IFETA Vs. SPDC of N1G LTD (2006) All F.W.L.R part 314 page 328-329 Para H-B [especially page 309 ratio 6), answered this question when it held thus: “… In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. Where, however the Defendant on giving the prescribed notice has a right to terminate the contract before the end of the term, the damages awarded apart from other entitlement should be limited to the amount which would have been earned by the plaintiff over the period of notice bearing in mind that it is the duty of the plaintiff to minimize the damages which he sustained by wrongful dismissal”. Counsel also referred to the case of OBOT Vs. CENTRAL BANK OF NIGERIA (1993) F.W.L.R (Part 310) at page 140. That flowing from the decision of the Supreme Court therefore the pertinent question in this suit is whether the 1st Defendant on giving the prescribed notice has a right to terminate the employment of the claimant. The answer, according to counsel, is YES. Section 12 of Exhibit A [the employment agreement] provides as follows: “The company may terminate this employment Agreement for the convenience of the company, by giving a minimum of One month’s notice or pay-in-lieu thereof". He submitted further that assuming without conceding that the court holds that a wrongful dismissal was occasioned in this Suit, the claimant is still not entitled to her(sic) reliefs III and IV claimed against the 1st defendant, the claimant shall only be entitled to his one month salary in lieu of notice as the 1st defendant has a right under the contract to terminate the claimant’s employment provided she gives the requisite notice. That to grant relief III Claimed by the claimant as special damage would amount to the Honourable Court giving an order of specific performance of the I (one) year contract of employment. Again the Supreme Court in the case of IFETA Vs. S.P.D.C (cited Supra) at Page 321 Para B-E (especially at page 309 ratio 51 held that specific performance or reinstatement is generally not a remedy in employment of this nature. That also in the case of RIVERS VEGETABLE OIL COMPANY LTD Vs. EGUKOLE (2010) All F.W.L.R Part 544 Page 111 at 125-126 Para G-D (especially page 113-114 ratio 2 and 3) the court held that a court cannot hold the termination or dismissal of the employment of an employee in a relationship without statutory flavour as null and void and go ahead to award to such a party damages in terms of what he would have earned had the contract of employment subsisted. He also referred to the cases of SHELL PETROLEUM CO. LTD Vs. 1FETA (2001) F.W.L.R part 80 Page 1629 Para B Page 1630 Paras E-F (especially Page 1617 ratio 61) and CIIUKWUMAH Vs. SHELL PETROLEUM (1993) 4 NWLR (Part 289) Page 512. Counsel for the 1st defendant submitted further that it is immaterial whether the breach complained of is a breach of a termination clause or another express term of the contract of employment as long as the contract is lacking in statutory flavour, referring to the case of NOBLE DRILLING (NIG) LTD Vs. EDEMEKONG (2010) ALL F. W.L.R Part 54O page 1377 at page 1383 — 1385 para C-A (especially at page 1379 ratio I) where the Court held as follows: “….The dichotomy which the learned trial Judge drew between termination of contract without giving the requisite notice and breach of an express term of the contract of employment no doubt led him to reach the erroneous conclusion that the breach attracted general damages which he generously assessed at N2,000,000.00 (Two Million Naira). Here the learned trial Judge was oblivious of the fact that this particular contract neither had statutory flavour nor was it such a contract which would attract a penalty more than the period stipulated for giving notice.. …." Counsel then submitted that whether it was clause 18 of the contract of employment that was allegedly breached or clause 12 that deals with termination, the effect is the same as the claimant would only be entitled to a month salary in lieu of notice. Continuing, he stated that assuming without conceding that the Honourable Court grants relief II as claimed, what the claimant would be entitled to is the sum of N67,1 19.00 (Sixty Seven Thousand One Hundred and Nineteen Naira) contained in the pay slip tendered by the claimant as Exhibit R and nothing more. That the claim contained in paragraph 32 of the claimant’s statement on oath which was denied in paragraphs 48, 51 and 57 of the statement on oath of MR. DICKSON AJOBOR EYEMENBAI, 1st Defendant’s, witness, for the sum of N4,671,940.08K as special damages is not only unlawful, bogus and gold-digging but is totally unproved. That aside from just repeating the contents of the statement of fact that his monthly take home is N228,889.34 (Two Hundred and Twenty Eight Thousand, Eight hundred and Eighty Nine Naira, Thirty-four kobo) in paragraph 32 of the statement on oath, the claimant did nothing further in proof of this sum. The only document he tendered, Exhibit R, is completely at variance with this sum. Nothing the claimant said can vary the contents of Exhibit R. Counsel submitted further that Special Damages must be proved by leading credible evidence and not by merely repeating the assertions contained in the statement of facts and he relied on the case of RIVERS VEGETABLE OIL COMPANY LTD Vs EGWKOLE (reported supra) at page 130 para C-D (especially at 116 ratio 6) That all the remunerations stated and claimed in paragraph 32 of the claimant statement of Oath aside from his basic salary to wit:- paragraph 32(b) - overtime, paragraph 32(c) — allowance, and 32(d) - gratuity are all work related and cannot be earned except the claimant is actually working. The claimant is therefore not entitled to these and cannot claim them. In the case of SPRING BANK PLC Vs. BABATUNDE (2012) ALL F.W.L.R pt 609 page 1191 at 1205 para C-D (especially at 1193 ratio 4) the Court held that a servant who has been unlawfully dismissed cannot claim his wages for services never rendered. In the instant case the trial court erred by awarding to the plaintiff wages for services not rendered and the awarded wages was set- aside on appeal. According to counsel there is nothing in evidence before this Honourable court to show that claimant worked for the special damages being claimed in paragraph 32 of the claimant’s statement on oath. Section 17(d) of Exhibit A is also very clear on the issue of No work no pay. Also Article 36(d) of Exhibit W3 is also supportive of this principle. Counsel continued by submitting that there is nothing in evidence to show that there was work done to support the claim for transport, utility, production and flare allowances. Evidence was not also led to show claimant’s entitlement to end of year gratuity, end of contract Bonus, Annual Leave Bonus and Annual leave pay. That the principle of law is that the business of a Court of law is not discharged or conducted by resort to speculation employed to fill in whatever lacuna there may be in the evidence of a party. He relied on the case of RIVERS VEGETABLE OIL COMPANY LTD Vs. EGUKOLE (Cited Supra) page 130 Para E-F (especially at page 116 ratio 7). The 1st defendant therefore urged the Honourable to decline to grant the special damages sought for under relief IV on the twin grounds that they are not claimable under the law and they have not been proved. On the issue of general damages claimed by the claimant, counsel submitted that where in a contract of service, the claim for special damages fails, the court could not proceed to award general damages. He cited the case of NOBLE DRILLING (NIG) LTD Vs. EDEMEKONG (2010) ALL F.W.LR part 540 page 1377 at 1385, PARA E-F (Especially at 1380 ratio 3). He therefore urged the court to refuse the relief for general damages. On the other hand, assuming without conceding that the claim for special damages succeeds, the award of general damages if sustained would definitely amount to double compensation which the court frowns at. The principles governing the grant of general damages in torts cannot be interchangeable with the principles governing the grant of damages in action based on contract. He cited the cases of MOBIL PRODUCING NIG. UNLTD V. UDO (cited supra) page 1192 ratio 1 and OLWGBO Vs. UMEH (2004) ALL FW.L.R part 196 page 823 at 842 Para. C-D (Especially at page 827 ratio 8). Finally, learned counsel continued that on relief V, though the 1st defendant vide paragraphs 49 and 50 of witness statement on oath of MR. DICKSON AJOBOR EYENMIENBAI has indicated her willingness to issue the 1st defendant’s receipt as proof that income tax was deducted at source, the proper authority to issue proof of remittance in this case is the Delta State Tax Office and not the 1st defendant. There is nothing before this Honourable Court to show that the claimant made enquiries at the State Tax Office which is a public office and he was rebuffed and/or found out that his taxes have not been remitted as claimed by the 1st defendant. He submitted that it is not the duty of the 1st defendant to issue government tax receipts as proof of tax remittance; neither will the 1st defendant company's receipt be conclusive proof of tax remittance. He therefore urged the Honourable Court to decline the grant of this relief as the court would not grant an ineffective order or an order in vain. In conclusion learned counsel for the 1st Defendant urged the Honourable Court to decline and/or refuse reliefs I, II, III, IV and V of the claimant against the 1st defendant in this suit on the grounds considered above and to dismiss the suit with cost in favour of the 1st defendant. But however that assuming without conceding that relief II is allowed, the claimant's only entitlement under the law is the sum of N67, 119: 00k (Sixty—Seven Thousand, One Hundred and fifteen Naira) contained in Exhibit “R”. 2ND DEFENDANT FINAL WRITEN ADDRESS In his written address, learned counsel of the 2nd Defendant gave an introduction and background facts to the case and formulated the following issues for determination by the Court: i) WHETHER THE SETTING UP OF THE DISCIPLINARY PANEL BY THE 2ND DEFENDANT AMOUNTS TO AN UNLAWFUL BREACH AND INTERFERENCE WITH THE CLAIMANT’S CONTRACT OF EMPLOYMENT WITH THE FIRST DEFENDANT? ii) WHETHER THE 2ND DEFENDANT IS LAIBLE IN DAMAGES TO THE CLAIMANT FOR INTERFERENCE OF THE CLAIMANT’S CONTRACT AND INDUCING THE BREACH BY THE 1ST DEFENDANT? iii) WHETHER THE 2ND DEFENDANT IS LAIBLE TO THE CLAIMANT FOR THE COST OF INSTITUTING AND PROSECUTING THIS ACTION. Arguing issue 1, learned counsel started by stating that there is the need to briefly examine the relationship between the 1st and 2nd Defendants as placed before this Honourable Court by their pleadings and evidence. That the 1st Defendant is one of the several contractors of the 2nd Defendant at the EGTL project site in Escravos. The 1st Defendant deploys its workers to the site of the 2nd Defendant at Escravos. The contract of employment executed by the Claimant with the 1st Defendant incorporated by reference and by collateral several of the 2nd defendant’s site rules, regulations, policies and other collective agreements between the 2nd Defendant and the several staff Associations such as the C.C.E.S.S.A to which the Claimant belongs. That the 2nd Defendant is not a strange bed fellow to the contract of employment of the Claimant with the 1st Defendant. The said contract expressly made reference to the 2nd Defendant as the ‘Client’ of the 1st Defendant (exhibits A & B with the attachments). A careful perusal of the Claimant’s Employment Agreement (executed by Claimant on the 8th December 2009) attached to the Claimant’s employment letter dated 26th December 2009 (marked as Exhibit A by the Court) will show that it is a fundamental agreement binding on the Claimant. It provides in Section 11(e) under the heading HSE REQUIREMENTS thus: ‘The Employee understands that failure to follow Site Policies, Procedures and Rules issued from time to time by the Employer (1st Defendant) and/or its Client (2nd Defendant) is deemed to be gross misconduct which may result in disciplinary action which may lead to dismissal being taken against the Employee’ (underline is counsel's.) That this is one of such provisions in the contract of employment of the Claimant wherein the position and control of the 2nd Defendant was clearly stated in the contract of the Claimant. The 2nd Defendant cannot therefore be said to be an alien or interfering with the contract of employment of the Claimant. He submitted that the contract of employment of the Claimant clearly incorporated the various site rules and policies made by the 2nd Defendant. The Claimant admitted that he signed the 2nd Defendant’s Project Culture Plan & EGTL Harassment & Violence Policy Procedure, (Exhibit W-4) and the Zero Tolerance Awareness Form List (Exhibit W-5). In Exhibit W5, Claimant signed as number 41 and equally consented to the said 2nd Defendant’s Policy and Procedure. Counsel then draws the Court's attention to the fact that the attachment to Exhibits A & B and Exhibit W4 provided for the setting up of disciplinary panels. He submitted that what is accommodated by the terms of agreement of the parties cannot be said to be unlawful breach or interference and the Defendant is therefore not liable for the tort of unlawful interference. That it is trite that a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties to the agreement in this case the Claimant and the 1st Defendant. One of the exceptions to this general rule is where the contract between the two contracting parties accommodates or it is accompanied by a collateral contract or agreement between one of the contracting parties and a third person relating to the same subject matter. He submitted that the employment contract of the Claimant with the 1st Defendant is collateralized with the contract with the 2nd Defendant in the same employment. The Claimant, as PW1, under cross examination admitted that his place of work ‘Escravos is controlled by the 2nd Defendant’; that he is ‘aware that the 1st Defendant is a contractor to 2nd Defendant’, and that ‘there is a measure of control by the 2nd Defendant over the 1st Defendant’. He further submitted that the entire purport of Section 11 of the Employment Agreement coupled with Claimant's obligation under Section 9 is to preserve this collateral contract. By the said Employment agreement, Section 1 a) placed the Claimant on notice that there is a ‘contractual obligations between the 1st Defendant and its Client’, the 2nd Defendant. Also Section 6 of the Claimant’s Employment Agreement subjected the continuous employment of the Claimant to the continuous engagement of the 2nd Defendant. The said section expressly provides: ‘In the event that the Company’s contract with its clients for services at the work location is terminated or otherwise curtailed for any reason, or if a general reduction in the work force becomes necessary, the Company may terminate the individual Employment agreement with the Employee...’ That these are the clear terms of the contract of agreement signed by the Claimant. It is trite that the Courts do not formulate contract for parties but will enforce the clear terms of the contract willingly executed between the parties. He submitted and urged the Court to hold that the nature of the contract of employment of the Claimant is interwoven with the contract of the 1st and 2nd Defendants and it is evidenced by the various Covenants in the Agreement of the Claimant with the 1st Defendant. He referred to the case of SIMAAN GEN. CONTRACTING CO. V. PILKINGTON GLASS LTD. (NO.2) 1988 Q.B 758. He further invited the Honourable Court to peruse the contents of Exhibit D, the purported collective letter written by the Claimant and purportedly signed by 62 workers and submitted that aside (from) the incorporation of the 2nd Defendant's Rules and Policy into the contract of the Claimant and the consideration which is the spill allowance though paid by 1st Defendant but reimbursed by the 2nd Defendant and the airlifting of the staff to the work site, the said letter (Exhibit D) was a clear invitation to the 2nd Defendant to look into the protest. The letter addressed to the Senior Management staff of the 2nd Defendant was to the effect of registering the Claimant and his group’s protest and further requested the 2nd Defendant’s Management to look into the matter of non-payment of the spill allowance. That the legal principle of ‘volenti non fit injuria’ is to the effect that there is no injury to one who consents or agreed. The Claimant expressly invited the Defendant to look into the matter and is therefore estopped from complaining that the said disciplinary panel set up by the 2nd Defendant is an unlawful breach and an interference with his contract of employment. He knew that the 2nd Defendant possessed the power and authority to change the decision and consented to same. Counsel then referred to the case of DARE V FAGBAMILA (2009) 14 NWLR (Pt.1160) Pg. 177 199. That furthermore, the Claimant appeared before the Panel without being forced or bound to the venue. Also by pleadings and evidence, the Defendants had shown that there was a breach at the work site as a result of the said letter (Exhibit D) which incited the junior workers and resulted in work stoppage for 2 hours. DW1 and DW3 both senior staff at the work site in Escravos confirmed this fact on oath and under cross examination. DW2 under cross examination stated that ‘I know Patrick Tenumah. He is a member of my union. I am aware that Patrick was suspended for 28 days for participating in an illegal strike and work stoppage.' DW2 is an executive member of the junior staff Union of the 1st defendant and the junior staff union was represented on the Disciplinary Panel. He therefore corroborated the fact of the work stoppage pleaded and led by the Defendant. To counsel, the Claimant merely discarded this weighty fact and evidence in his Reply and Statement on Oath. The fact that the said Exhibit D was engineered and typed by the Claimant on a purported collective mind of mostly junior staff of several sub-Contractors at the site was omitted by the Claimant. This coupled with the fact that the Claimant being a senior staff has no business or responsibility by his contract of employment championing the cause of the junior staff particularly when by Exhibit W8, the Union for the Junior Staff as at 25th January 2011 was already seized of the matter of non-payment of the spill allowance and had already taken steps to resolve the grievances as contained in (Exhibit W-9(i)-(x)). The totality of the above facts as evidence before the Court on a balance of probability weighs heavily against the Claimant. The act of the Claimant in typing and instigating staff against their employer is illegal and a party cannot benefit from his own wrong. This is enshrined in the Latin maxim ‘nullus commodium capere potest de injuria sua pria’. That in ALADE V. ALIC NIG LTD. (2010) 19 NWLR (Pt. 1226) Pg.111 @ 131 the Apex Court held that... ‘a party should not be allowed to benefit from his own wrong’. In addition Counsel invited the Court to take judicial notice of the volatile nature of the project site, Escravos, an Island in the heart of the Niger-Delta region which is also pleaded and in evidence of the 2nd Defendant. This volatile nature of the work site remained unchallenged by the Claimant. The agitation of well over 62 junior staff for non-payment of monetary allowance (spill over) together with the provoking caption and heading of the said letter Exhibit D must lead the Court to the irresistible conclusion that the agitation would have degenerated but for the intervention of the 2nd Defendant at its work site. It is this intervention that the Claimant wants the Court to declare illegal and unlawful interference of his contract. The question begging for answer is can the 2nd Defendant's act of arresting potential breach at its work site be declared unlawful and illegal? To counsel, to be unlawful by Black’s Law Dictionary, 7th Edition means ‘not authorized by law or illegal’. The Halsbury’s Law of England, Edition @ para 694 provides: ‘Although it is not an actionable wrong for an individual merely to induce a person not to employ another when no breach of contract is caused, yet, if the inducement is accompanied by illegal means and damage results to a person intended to be harmed, there is an actionable wrong at his suit’. It is the deliberate, direct and unlawful interference with the performance of a contract by a third party that is tortuous and upon which liability lies. The 2nd Defendant, counsel reiterates, is not a third party and his major responsibility is to maintain a conducive (sic) for the execution of its work site in Escravos. This, counsel submitted, can never be an illegal or unlawful act when done in the confines of its site rules and regulations. That a wrongful act is one which in the ordinary course of events will infringe upon the rights of another to his damage, or one which is done with the purpose of benefiting the acting party at the other’s expense and is not done in the exercise of an equal or superior right. This, counsel submitted, is not the case of the Claimant and therefore no wrongful interference or inducement lies at the door of the 2nd Defendant. Continuing, learned counsel stated that the Claimant’s Employment Agreement marked Exhibit A attached to the Claimant’s letter of Employment (Exhibit A before the Court), Section 18 (f) provides that: In the event of any work stoppage/s or strike/s or any other disruption of work by the Employee, the Employee’s continuous employment shall be deemed to have been immediately terminated. When this Honourable Court comes to that irresistible conclusion on a balance of probabilities that there was work stoppage both by pleadings and evidence of the Defendants, the Claimant by the said S. 18 (f) constructively terminated his continuous employment by orchestrating Exhibit D which was before the hearing of the Disciplinary Panel. This repudiation determined the Claimant’s contract and any right thereunder in his contract of employment and equally necessitated the hearing of the said Disciplinary Panel. Furthermore, the 2nd Defendant, being the major/principal contractor of the EGTL project cannot be said to be a meddlesome interloper or alien by arresting the breach and setting up inquest into the cause of the crisis. In all, 9 staff from different site Contractors aside the 1st Defendant appeared before the said Disciplinary Panel. The fact is that not all the said nine staff that appeared before the Panel were staff of the Defendant or members of Claimant’s Association (C.C.E.S.S.A). The assertion of the Claimant of selective victimisation for being a member of C.C.E.S.S.A therefore cannot hold water and learned counsel urged the Court to so hold. He then urged the Honourable Court to resolve the first issue against the Claimant. Arguing issue two learned counsel for the 2nd Defendant stated that the Claimant’s claim against the 2nd Defendant which flowed from the declarative orders is for general damages for the interference and inducement of the breach of his contract with the 1st Defendant. The measure of damages in employment matters is calculated in accordance with the normal principles applicable to actions for breach of contract. General damages in employment matters are awarded to compensate the employer or employee as the case may be and not to punish. He further submitted that in cases where the Court awards specific damages in favour of the employee as claimed, it is still not penal but liquidated damages. It is trite that punitive or exemplary damages are not awarded for breach of contract. He referred to ‘The Modern Law of Employment by G.H.L Fridman’ (London Stevens & Sons). That the general principle and law of measure or quantum of damages both in tort and contract matters is ‘that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’ as stated in the speech of Lord Blackburn. In CHITTY ON CONTRACTS, Sweet and Maxwell 27th Edition, para 18-022 the learned author proffers: ‘The general principle that the object of awarding damages in contractual action is to put the Plaintiff into the same position as that in which he would have been if the contract had been performed, while in an action in tort that object is to put him back into the position in which he was before the tort was committed..’ Following the above principle, the cause of action and claim of the Claimant in this suit generally is for breach of employment contract and constructive dismissal. The Claimant’s declarative prayers against the 2nd Defendant specifically is for unlawful interference with his contract of employment and inducement to breach his contract of employment, this tort, counsel submitted, does not lie in this matter against the 2nd Defendant. The claim for general damages is premised on the said prayers. Where this Honourable Court upholds the submissions above under the first issue, the claim of the Claimant for general damages automatically must fall like a pack of cards. It is trite that without any illegal or unlawful act and coupled with injury or wrong suffered, there can be no order as to damages as this would amount to putting something on nothing. Counsel then referred to the case of MACFOY V. U.A.C (1962) AC 152. In the unlikely event that this Honourable Court holds otherwise, counsel submitted that the Claimant has not discharged the burden of proof placed on him in law to entitle him to judgment against the 2nd Defendant. The Claimant has been unable to show and discharge the static burden that the 2nd Defendant is a stranger to his contract of employment. The Claimant equally failed woefully to establish the fact that the 1st Defendant was induced by the 2nd Defendant to breach the contract of his employment as the 1st Defendant categorically pleaded and gave evidence in the affirmative that it was not induced in any manner by the 2nd Defendant. The Claimant therefore must sink with his claim for failure to discharge this burden of proof. That in the case of N.R.W IND. LTD. V. AKINGBULUGBE (2011) 11 NWLR (Pt. 1257) Pg.131 at 148 para C-G, the Court of Appeal held that: ‘It is not the duty of the employer to prove any of these facts. In the instant case, the submission of counsel for the respondent that the burden shifted to the appellant to prove that the termination of the respondent’s employment was in compliance with the respondent’s letter of employment has no basis in law. The burden was on the respondent and remained on him throughout the case. He went to court to seek for certain declarations and damages for wrongful termination of his employment, he surely bore the burden of proving the wrongful termination, not the appellant’. Furthermore, counsel added, in the unlikely event that this Honourable Court holds otherwise, the measure of damages for breach of the contract of employment of the Claimant would be the amount of money stated in the said contract of employment. Under the Employment Agreement executed by the Claimant attached as Exhibit A to his letter of employment, Section 3 provides for the period of employment which was stated to be ‘1 year from the date of this Employment Agreement or such other longer period as may be subsequently agreed’ by parties. It further provides: ‘The Company will endeavor to give at least 30 days notice, or pay in lieu thereof, of impending completion and subsequent termination of employment’. Learned counsel continued that Section 6 deals with SEVERANCE and states as follows: ‘The Company may terminate the individual Employment Agreement with the Employee by giving the Employee written notice. Such notice shall not be less than one calendar month, nor shall it be more than 45 calendar days, prior to date of termination. The Company reserves the right to make payment in lieu of notice...’ That Section 12 deals with TERMINATION OF EMPLOYMENT a) ‘The Company may terminate this Employment Agreement for the convenience of the Company, by giving a minimum of one month’s notice or pay-in-lieu thereof. Counsel stated further that a community reading of the various sections above in the contract of the Claimant with the 1st Defendant conformed to the age long principle of law that a master can terminate the contract of employment with the servant at any time and for any reason or for no reason whatsoever. This common law principle which has received judicial blessing from the Apex Court is to the effect that a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. The only exception to this common law rule is in respect of employments with statutory flavour. He referred to the case of SHITTA-BEY V. F.P.S.C (1981) 1 SC 40. That the employment of the Claimant with the 1st Defendant was not a statutory employment and therefore does not fall within the purview of the known exception. Where however the contract is terminated in a manner inconsistent with the terms of the contract of employment, the master must pay for the breach. The quantum of the damages is the equivalent of the notice or the money in lieu of notice. In ONALAJA V AFRICAN PETROLEUM LTD. (1991) 7 NWLR (Pt.206) Pg.691 at 698 para F it was held that: ‘The measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salary up to retirement’. Counsel further submitted that the Claimant cannot claim wages or salary for the services he never rendered upon the said constructive dismissal or termination of his employment. In SPRING BANK PLC. V. BABATUNDE (2012) 5 NWLR (Pt. 1292) Pg. 83 at 101 paras C-D the Court of Appeal followed the earlier Supreme Court decision in OLATUNBOSUN V. NISER COUNCIL (1988) 2 NWLR (Pt. 80) Pg. 25 and held thus: ‘A servant who has been unlawfully or wrongfully dismissed cannot claim his wages for services he never rendered’. Counsel continued that last in the determination of the quantum of damages, this Honourable Court must put to mind the fact that the employment of the Claimant was never terminated. That Exhibit F which was the recommendation of the Disciplinary Panel of the 2nd Defendant did not terminate the employment of the Claimant notwithstanding the gross misconduct found on him in the entire crisis of 27th January 2011. The Court is invited to read the attitude of the Claimant before the Panel as recorded in Exhibit F and the findings of the said Panel. He submitted that the acts of the Claimant amounts to gross misconduct being a breach of provisions of Sections 1, 9, 11 and 18 of his Employment Agreement. In C.C.B NIG. LTD V. NWANKWO (1993) 4 NWLR (Pt 286) Pg. 159 @ 171 para H, the Court of Appeal held thus; ‘An act which amounts to misconduct warranting dismissal of a servant by his master is generally an act of wilful disobedience to lawful and reasonable orders, misconduct of master’s business’. The Claimant by Exhibit D and the crisis that ensued thereafter, deliberately undermined the relationship of confidence between the 1st and 2nd Defendant by the said caption of the letter. The instigation of the junior staff by the Claimant and his cohorts, collection of several names and signatures on a plain sheet of paper and the meddling in the employment matters of the junior staff which is outside the scope of the Claimant duties and responsibilities is one of such a grave and weighty character that should have warranted the dismissal of the Claimant in line with Section 18 (1) of the Claimant’s Employment Agreement. That the Claimant instead of mitigating his damages refused bluntly to comply with the recommendation and thereby was not booked back to the site. In C.C.B NIG. LTD V. NWANKWO (1993), supra, @ 170 para C it was held that: ‘An employee who has been dismissed in breach of his contract of employment is not entitled to treat the contract as subsisting and sue for accounts of profit which he would have earned to the end of the contract. He must sue for damages for wrongful dismissal and there is a duty on him to mitigate these damages as far as he reasonably can’. Counsel submitted that the Claimant failed to mitigate his damages as far as was reasonable and is therefore not entitled to any damages whatsoever from the 2nd Defendant. He then urged the Court to resolve this issue against the Claimant. On the 3rd issue counsel stated that the principle of cost in any civil proceedings is that cost follows event. The principle is that the party who is in right is to be indemnified for expenses to which he has been necessarily put in the proceedings as well as compensate for time and effort. He referred to the case of T.E.S.T. INC. V CHEVRON NIG LTD. (2011) Pt.1250 Pg.464 @ 494 (law report not mentioned by counsel). Finally learned 2nd Defendant's counsel relied on his submission above particularly under issue two and urged the Court to dismiss the suit of the Claimant in its entirety against the 2nd Defendant with substantive cost against the Claimant. CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF HIS CASE AGAINST THE 1ST DEFENDANT The learned Claimant's counsel after giving an introduction and background information about his case against the 1st Defendant formulated the following issues for the determination of the Court based on the pleadings in the matter as well as the evidence adduced during trial: I. Whether or not the reasons stated in Exhibit F for the suspension, demotion and probation of the Claimant and other sundry criminal allegations leveled against him by the 1stDefendant are true and connected with the writing and signing of Exhibit D. II Given the entire circumstances of this case, whether the disciplinary measures taken against the Claimant amount to constructive dismissal by the 1st Defendant. III If the answer to issue ii is in the positive, and given the peculiar nature of Claimant’s employment contract, whether or not the Claimant is entitled to his full salary and other entitlements from February 2011 to December 2011. VI Given the unproven criminal and sexual misconducts leveled against the Claimant, and the unchallenged evidence that he was wrongfully dismissed on ground of membership of a trade union, whether or not the Claimant is entitled to an award of general damages. V. Whether or not the Claimant is entitled to award of cost against the defendant on indemnity basis. Arguing issue i learned counsel submitted that the alleged reasons stated in Exhibit F for the suspension, demotion and probation of the Claimant and other sundry criminal allegations leveled against him by the 1st Defendant are not only false but unconnected with the signing of Exhibit D. Before going to the merit of this issue, counsel stated, it was pertinent to address a very germane question that goes to the root of the issue, i.e., whether the disciplinary panel which resulted in Exhibit F is known to the Claimant’s contract. Whether the disciplinary panel which resulted in Exhibit F is known to the Claimant’s contract. Learned counsel submitted that the disciplinary panel, its composition, proceedings and the disciplinary steps taken are unknown to the Claimant’s contract. That it is trite principle of law that parties are bound by their contract. The contract between the Claimant and the 1st Defendant is in writing and it was tendered as Exhibits A and B. Exhibit A was renewed on 26/10/2010 vide Exhibit B titled “Renewal of Contract of Employment”. Section II of Exhibit B (which is the extant contract material to this action) incorporated Exhibit A by reference. Thus the terms and conditions of the Claimant’s employment contract with the Defendant are contained in two documents headed Daewoo Nigeria Employment Agreement, Exhibits A (a 9 page document) and B (a 2 page document) respectively. Both documents form part of Exhibit A. That Section 18 of Exhibit A provides in mandatory terms as follows: “Any grievance shall be reported and forwarded to the Admin Dept (Facilitator) as soon as the occurrence takes place or is observed latest 24 hours after the event occurs. The Admin Dept (Facilitator) shall meet and within one week of receiving a grievance report resolve the matter.” To counsel, there is no doubt that the Admin Dept referred to above is that of the 1st Defendant. There is equally no doubt that the Admin Dept is located in Escravos. That the Claimant in paragraph 10 of his Amended Statement of Claim pleaded that when the 1st Defendant refused to pay the spill allowance, he and the other affected workers tried to resolve the issue with the 1st Defendant’s Administrative Department. It must be noted that the Claimant at that time was an Administration Assistant in the Administration department of the 1st Defendant. The Claimant pleaded specifically that he and the other workers affected by the spill met Mr. M. S. Kim, the Assistant Administration Manager of the 1st Defendant. The Claimant led evidence in support of this averment in paragraph 11 of witness statement on oath. The Claimant was not cross-examined on this point. The consequence in law of failure to cross examine by the 1st Defendant’s Counsel is that the averment and testimony are deemed admitted. Learned counsel referred to the case of C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142 at 152. He continued that from the undisputed facts before the Court, the disciplinary panel that the Claimant was compelled to appear before on 8/2/2011 was not the Admin Dept of the 1st Defendant neither did the unlawful hearing take place in Escravos. But rather the phantom disciplinary panel hearing constituted by the 2nd defendant took place in the 2nd Defendant’s office at Effurun, Delta State. This is a gross violation of the express provision of section 18 of Exhibit A. That for avoidance of doubt as to the sacrosanct nature of section 18, section 9 (d) of Exhibit A provides: “With due regard to section 9 c), it is agreed that this Exhibit A, Exhibit 13, and the Employment Agreement constitute the entire understanding between the Company and the Employee relating to compensation and other conditions of employment and that no additions or future understanding shall be binding upon the Company or the Employee unless reduced to writing and signed by the designated representative of the Company and by the Employee” (emphasis supplied by counsel). To counsel, the above is the agreement between the Claimant and the 1st Defendant. That again, it is settled law that parties are bound by their contract and there is no evidence that Exhibit A was modified or altered by writing. There is also no evidence, assuming without conceding that the agreement was modified or altered, that the designated representative of the 1st Defendant and the Claimant signed same. He further submitted on this point that it was conceded by the Defendants that the three members who made up the unlawful disciplinary panel were employees of the 2nd Defendant. It therefore follows that the disciplinary panel made up of the 2nd Defendant’s employees that the Claimant was compelled to appear on 8/2/2011 at the 2nd Defendant’s office in Effurun is unknown to the Claimant’s employment contract with the Defendant and therefore unlawful and the entire proceedings and findings are not only void but amounts to a nullity. That assuming without conceding that the Claimant contravened Exhibit W4, counsel submitted that, the so called three man disciplinary panel made up solely by the employees of 2nd Defendant would not have had disciplinary dispensation over him. Counsel added that the aim of Exhibit W4 and objective of Exhibit W4 will be addressed below but he submitted that from the clear and unambiguous provisions of Exhibit W4 an offended worker or employee must make a report against a violator before its provisions can be invoked. There is no evidence before the Court that any worker or specifically the workers that signed Exhibit D made any complaint against the Claimant for violating Exhibit W4. Alleged reasons for Exhibit F. Learned counsel submitted that having shown that the disciplinary panel set up to investigate the Claimant was unknown to his employment contract with the Defendant, the question as to whether their findings are true or false should not arise because no void act or a nullity can give rise to legality. That it is settled law that the defendant cannot place something on nothing and expect it to stand. He referred to the case of Macfoy v. UAC Ltd. (1962) AC. However, counsel proceeded to address the Court on this point. That assuming without conceding that the disciplinary panel was contemplated by Exhibit A, he submitted that its findings upon which Exhibit F was purportedly based are false. The 1st Defendant in paragraphs 13, 14, 15, 17, 18, 19, 20, 22, 23, 32, 33 and 34 of its Amended Statement of defence pleaded facts to support the setting up of the unlawful disciplinary panel. Amongst the sundry reasons given for setting up the panel are that: the Claimant circulated false information amongst workers, he fraudulently procured the signatures of workers and attached it to Exhibit D, that he incited workers, he acted in gross insubordination, deceived and intimidated workers to sign Exhibit D, collated workers signatures on blank sheets on the pretext that management of the defendant asked him to do so and thereafter attached the blank sheets to Exhibit D. It was also alleged in Exhibit F that the Claimant contravened EGTL/EGP3 procedure, interfered with the work of other employees, that he was insubordinate, disobeyed lawful instruction and order. The Claimant was also alleged to have given false or misleading information to his fellow employees, that he acted maliciously and disorderly, indulged in the use of obscene language, acted immorally and indecently. That these sundry allegations are not only weighty but are also criminal in nature. The Claimant denied all the allegations in paragraphs 7, 8, 9, 10, 11, 12, 13 and 14 of his Amended Reply to the 1st Defendant’s Amended Statement of Defence and therein averred the true state of affairs leading to Exhibit D. Evidence led by the 1st defendant in support of the above weighty allegations Counsel stated that it is trite law that he who asserts must prove. He referred the Court to section 131(2) of the Evidence Act, 2011. In an attempt to prove the above weighty and criminal allegations, the 1st defendant called DWI and DW2. DW1 (a confused witness who is an employee of the 2nd Defendant), according to learned claimant’s counsel, in paragraphs 21, 22, 23, 26, 27, 30, 31, 32, 33 of his witness statement on oath merely repeated the averments in the 1st Defendant’s Amended statement of Defence. It is settled law that allegation of crime in civil proceedings must be proved beyond reasonable doubt, relying on Section 135 (1) of the Evidence Act, 2011 and the decision in WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401. That under cross-examination, DW1 who affirmed that he is an employee of the 2nd Defendant admitted that he was not present when Exhibit D was typed and/or signed. The 1st defendant did not call Felix Ejutemiden, Luck Zaudumunnu, Ogala Abraham, Oniko Godspower and Agala Bariowa Anthony, workers it alleged the Claimant fraudulently procured their signatures to give evidence in this case. It is also noteworthy that Felix Ejutemiden, Luck Zaudumunnu, Ogala Abraham and Oniko Godspower, (who are adults as admitted by the DW1 under cross- examination) who the 1st Defendant alleged the Claimant incited, intimidated, deceived, fraudulently procured their signatures, e.t.c., signed the first page of Exhibit D containing the body of the letter. None of the workers who signed Exhibit D was called by the 1st defendant to substantiate these weighty criminal allegations. That DW2, (who was not affected by the spill and did not sign Exhibit D) in paragraphs 6 and 7 of his witness statement on oath merely repeated the above allegations. Again, under cross-examination, he admitted that he was not present when Exhibit D was typed and/or signed. Counsel then submitted that the Court should discountenance the purported evidence of DW1 and DW2 on all the allegations levelled against the Claimant as there was no evidence or credible evidence to substantiate them. On the allegation that the signing of Exhibit D led to shut down of the worksite for two hours it is submitted that this was not supported by any or credible evidence. Paragraph 9 (c) of the Claimant’s employment contract provides for “No Work No Pay”. Similarly, assuming without conceding that Exhibit H applies to the Claimant, Article 18.4 also provides for “No Work No Pay”. The Claimant in paragraph 14 of his Amended Reply to the 1st Defendant’s Amended statement of Defence denied that there was work stoppage at the work site on 27/1/2011 by virtue of Exhibit D and averred further that he and the other workers who signed Exhibit D were paid their full day wage on 27/1/2011. Continuing, counsel stated that the Claimant in paragraph 43 of his witness deposition gave evidence in support of the averment in paragraph 14 of his Amended reply as follows: “There was no work stoppage or shut down of operation at the project on 27/1/2011 for two hours or any other time. I did not hinder, or limit normal or any operation of the 1st Defendant neither did I interfere with the work of the affected workers or any other worker on 27/1/2011 or any other date. The 2nd Defendant did not make any alleged enquiry about any perceived shut down as none occurred. No security threat or implication arose from the legitimate spill demand. I was paid my full wage for 27/1/2011”. The Claimant was not cross-examined on this evidence. The legal effect and consequence is that they are deemed admitted. See C.E.C.T.C.S v. Ikot (supra). DWI, DW2 and DW3 confirmed under cross examination that all the workers who signed Exhibit D were paid their full salary in January 2011. It therefore follows that this allegation is false. On the allegation that the Claimant did not comply with Exhibit W8, learned claimant’s counsel submitted that the DW2 admitted under cross examination that the Claimant is not a member of his Union (NUCECFWW). It follows therefore that Exhibit W8 is not binding on him. The Claimant went further to deny knowledge of Exhibit W8 in paragraph 6 of his Amended Reply to the 1st Defendant's Amended Defence and paragraph 38 of his witness statement on oath. The Claimant was not confronted with Exhibit W8 neither was he cross examined on his evidence. The Claimant averred and gave evidence that Exhibit D was written and signed on the direction of Mr. M.S Kim (the Assistant Administrative Manager of the 1st Defendant). Counsel referred the Court to paragraphs 10 and 11 of the Amended Statement of Claim and paragraphs 9 and 10 of his witness statement on oath. Counsel stated further that it is important to note that Mr. M.S Kim directed the Claimant and the other workers affected by the spill to channel their demand to the 2nd Defendant after Exhibit W6. Again, the Claimant was not cross-examined on this evidence. Continuing, counsel stated that DW1, a man who could not determine who his employer is, purportedly gave evidence as an employee of (sic) the industrial relations manager of 1st defendant. (It should be noted that the Claimant pleaded in paragraph 11 of his Amended Statement of defence that Mr. I.R Choi, is the Community Affairs/Administration and Industrial Relations Manager of the 1st Defendant but the 1st Defendant did not controvert this averment or cross — examine the Claimant on his testimony on it in paragraph 10 of his written statement on oath). That DW1 under cross-examination admitted that he was not present when the Claimant and other affected workers approached Mr. M.S Kim on the spill issue. It follows that the Claimant’s evidence was unchallenged and deemed admitted. In the circumstance, the Defendant cannot query the Claimant or any other worker for Exhibit D. The 1st Defendant is therefore estopped from attributing any motive on the part of the Claimant to Exhibit D. It is settled law that what is permitted cannot give rise to liability and counsel referred to the case of Michelin (Nig) Ltd. v. Alaribe (2010) All FWLR (Pt. 543) 1998, Ratio 5. He submitted further that the 1st Defendant did not deny or lead evidence that Mr. Kim lacked the authority to direct the Claimant and other workers to the 2nd Defendant. The 1st Defendant cannot approbate and reprobate. M.S Kim was not called to answer specific averments against him. He thus submitted that if there is any blame to be apportioned for Exhibit D, it should rest squarely in the bosom of M.S Kim and the 1st defendant should apologize to the Claimant. Counsel continued that it is common ground in this case that it is the 2nd Defendant that approves payment of spillover allowance. It is also undisputed that Exhibit D was written and sent after Exhibit W6. It is clear from Exhibit W6 minuted on at the last page by the 2nd Defendant’s official, Felix Ugokpa on 17/1/2011 that the Claimant and the other workers who signed Exhibit D were not approved for payment of the spillover allowance. It is instructive to note that the Defendant’s employee, M.S Kim who signed Exhibit W6 is also the person who directed the Claimant and other affected workers to raise the issue of non payment of the spill claim with the 2nd Defendant. The Defendants (especially the 2nd Defendant) are therefore estopped from complaining about what was done on the admitted direction of the 1st Defendant. It is also very striking that M.S Kim was specifically mentioned in Exhibit D. Counsel stated further that it was also alleged that the Claimant contravened the EGTL/EGP3 Harassment and Violence Policy and Procedure, Exhibit W4. The aim of Exhibit W4 as stated therein is clear and unambiguous. Exhibit W4 defines Harassment thus: “Harassment refers to any unwelcomed or unsolicited physical, verbal or sexual conduct, which directly or indirectly intimidates or affects the mental or physical state of an individual. For example, offensive jokes, name calling, pushing or other aggressive physical conduct, or threat to take such action.” Act of violence is defined as follows: “Act of violence includes threats, abuse, intimidation, spitting at others, hitting, shoving, kicking, assaults, aiding and abeting (sic) any act of aggression, arson, sabotage, vandalism, robbery and pestering”. Again, counsel continued, it is trite law that he who assert must prove. There is no evidence before the Court to prove that the Claimant violated the above provisions by virtue of Exhibit D. There is also no evidence that any of the workers who signed Exhibit D followed the stated procedures for victim of harassment or violence. There is further, no evidence that any of the workers who signed Exhibit D made any complaint or report to the so called disciplinary panel. The 1st Defendant did not produce any written evidence that empowered the so called panel to carry out purported investigation and to take disciplinary steps against the Claimant. No evidence was led on the allegation that the Claimant was malicious, disorderly, used obscene language, or that his conduct was immoral or indecent. Obscene language describes words considered offensive or disgusting by acceptable standards especially in sexual matters. There is nothing in Exhibit D to suggest sexual misconduct. Counsel therefore submitted that the Claimant did not contravene Exhibit W4. Having not proved the allegations against the Claimant, learned counsel submitted that the alleged reasons for setting up the unlawful disciplinary panel are false and he urged the Court to so hold. ISSUE TWO (TWO) Given the entire circumstances of this case, whether the disciplinary measures taken against the Claimant amounts to constructive dismissal by the 1st Defendant. Arguing this issue, learned counsel submitted that given the facts and circumstances of this case, especially the punishments that the Claimant was mandated to comply with, which are expressly against the letter and spirit of Exhibit A, the 1st Defendant constructively dismissed the Claimant. According to Professor Chianu, in his book, Employment Law, Akure, Bemicov Publishers, First Edition, 2004 at page 315: “A vital concept of employment law is “constructive dismissal.” Astute judges who appreciate industrial relations developed this (sic) it. It arises where an employer provokes an employee to resign either by creating or tolerating a hostile work environment or by unilaterally changing (or proposing a change) the nature of the employment, the place of employment, or important terms in the contract such relating to pay. Once the court is satisfied that an employer’s conduct amounts to a repudiation of the contract of employment, it would hold that although the employee in form resigns, is in fact, accepts the employer’s repudiation and he is deemed to have been dismissed by the employer.” (emphasis supplied by counsel). That it is settled law that implied in every contract of employment is mutual trust and confidence that an employer will not, without reasonable or proper cause, conduct himself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. He referred to the case of Scally v. Southern Health and Social Services Board (1992] 1 AC 294 at 307 para B. This point was driven home in the Judgment of Lord Steyn in Malik v. BCCI [1998] 1 AC 20 at 45, wherein he held that a breach of the implied term of mutual trust and confidence extends to “any conduct of the employer likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. (emphasis supplied by counsel.) That where the mutual trust and confidence is broken, the injured party can elect to treat the contract as repudiated by the offending party. In Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174 at page 188 paragraphs D to E, the Supreme Court held: “Where the master has purported to dismiss the servant, even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. A wrongful dismissal in complete disregard of the terms of the contract of service is obviously a repudiation by the master and the servant’s remedy is in action for damages only”. In Ilodibia v. N.C.C Ltd (supra), the Supreme Court upheld the finding of the trial Court that the indefinite suspension of the plaintiff and placement on half salary against the provision of his employment contract was wrongful and amounted to constructive dismissal. Counsel continued that applying the above principles to the facts of this case, the Court is invited to the following undisputed facts. The Claimant was suspended for four weeks as against a maximum of 10 days provided in Exhibits A and H. The Claimant was demoted from the position of senior staff to that of a junior staff with the attendant consequence of reduced salary and immediate relocation from the senior staff quarters housing two persons in a room to sixteen persons to a room in junior staff quarters. This again, is a clear violation of the provisions of Exhibit A and H. The Claimant was placed on probation after working for the Defendant for five years. The Claimant was mandated to write unreserved letter of apology to the defendant and also an undertaking to be of good behaviour signed by a junior workers’ union executive. The 1st Defendant failed to provide documentary evidence where the above punishments are provided for in the Claimant’s contract. The effect of demoting the Claimant is that Exhibits A and B automatically ceased to be binding on the Claimant and the defendant since his status as a senior staff (a core condition in Exhibits A and B) was unilaterally changed by the 1st Defendant. The Claimant was not booked back to site after he appeared before the disciplinary panel and he was not paid his salary from 8/2/2011. All these facts put to together lead to one conclusion that the Claimant was wrongfully dismissed by the 1st Defendant. Counsel submitted therefore that the arguments in support of the 1st defendant’s issue two as to the fact that the Claimant breached his contractual agreement are totally unsupportable by pleadings and evidence in this case and therefore it lacks legal foundation. He submitted further that it is untenable for an argument to be made for the 1st defendant that the Claimant did not follow the grievance procedure in his contract. It is equally laughable that a submission to the effect that: “instead the evidence before the court reveal that the Claimant wrote a damaging indictment contained in Exhibit “D” more than 2 weeks after the incidence against the 1st defendant his employer to the 2nd defendant and officials of chevron (Nig) Ltd, client to the 2nd Defendant “, could be put forward given the facts of this case. The defendants who alleged that it takes about three weeks to process spill over claim are also saying that the Claimant ought to have forwarded his complaint or grievance to the 1st defendant’s Admin department within 24 hours. Exhibit W6 tendered by the 1st defendant is dated 13/1/2011 and the non-approval of the spill allowance by the 2nd defendant as can be seen from the last page of the Exhibit was done on 17/1/2011, ten days after the spill occurred. It can be gathered from the evidence led in this case that the Claimant and other affected workers met M.S Kim after Exhibit W6 and he directed them to channel their claim to the 2nd defendant. The Claimant pleaded and gave evidence that Exhibit D was not sent to Chevron. He was not cross-examined on this evidence. From the facts of this case, the Claimant is an Administration Assistant while M.S Kim is the Assistant Administration Manager. DW1 and DW2 testified during cross examination that they were not present when the Claimant and the other affected workers met M.S Kim. The argument that some of the signatories to Exhibit D are not staff of the 1st Defendant cannot hold water because the 1st Defendant did not controvert the fact that it is its responsibility to pay the affected workers the spill allowance. This fact can be confirmed from Exhibit W6. All the names contained in Exhibit D are also contained in Exhibit W6 and Exhibit W6 was written by M.S Kim a staff of the 1st Defendant. It is therefore submitted that the 1st Defendant is estopped from putting forth this argument as it cannot approbate and reprobate. Learned counsel continued that the argument that most of the workers whose names are in Exhibit D are junior workers again cannot stand as the Claimant pleaded and led evidence that they collectively wrote Exhibit D because they were all affected by the spill issue and that M.S Kim directed them to do so. Exhibit W8 which is not binding on the Claimant cannot be imputed on him. In any event, the Claimant had no knowledge of it. It is interesting to note that out of over 90 workers affected by the spill the 1st Defendant could only tender Exhibit W9 (i-x) to show the alleged response to Exhibit W8. Also amazing is the fact that one of those who allegedly responded to Exhibit W8, (see Exhibit W9 i) Agala Abariowa Anthony, a senior staff also signed Exhibit D. It is therefore misconceived to argue that an act authorized and directed by the 1st Defendant can be a ground for an alleged gross misconduct. Learned counsel again submitted that what is permitted cannot give rise to liability, relying on the case of Michelin (Nig) Ltd. v. Alaribe (supra). Therefore, to counsel, the case of Uzondu v. U.B.N PLC (2008) All FWLR (Pt. 443) 1398 cited in paragraph EIV of the 1st Defendant’s written address has no application to this case, according to counsel. That the 1st Defendant also sought to rely on the fact that Exhibit D was addressed to the 2nd Defendant to make a case that the Claimant breached the provision of his contract. The reason for Exhibit D was pleaded in paragraphs 10 and 11 of the Claimant’s Amended Statement of Facts. The Claimant gave evidence on this point in paragraphs 9 and 10 of his written statement on oath. The Claimant again, was not cross-examined on this evidence. The consequence in law is that his testimony is deemed conceded or admitted, referring to the case of C.E.C.T.C.S v. Ikot (supra). He submitted further that the defendant cannot blow hot and cold. Its defence in this case is that the Claimant's employment was not terminated. He submitted therefore that it cannot now resort to raising issue of gross misconduct. The Defendant cannot put up inconsistent defence. In Onyekwelu v. ELF Petroleum Nig. Ltd (2009) All FWLR (Pt. 469) 426 at 442, the Supreme Court, per Niki Tobi, JSC, held that “it is elementary law that a party must consistently make his case and not change like the weathercock in climatologv”. If the Claimant in anyway committed any act that qualifies as gross misconduct, it is submitted that given the facts and circumstances of this case, the defendants would not have set up the phantom disciplinary panel because by the provision of section 18 (f) of Exhibit A his employment would have been deemed terminated and the 1st defendant would not have hesitated to bundle him out of the project site. The 1st defendant’s Counsel conceded in paragraph EVI of the 1st defendant’s address that the Claimant employment was not terminated nor was he dismissed. Also the argument in paragraph EVI of the 1st Defendant’s written address that Exhibit F cannot amount to letter of termination flies in the face of the doctrine of constructive dismissal and the settled authorities cited above. The illegal phantom disciplinary panel was contrived by the defendants with the sole aim of getting rid of the Claimant through the back door. It is submitted therefore that given the circumstances the Claimant found himself the reasonable conclusion was that the 1st Defendant constructively dismissed him. The radical changes smuggled into the Claimant’s contract by the disciplinary panel radically altered Exhibits A and B and destroyed its very foundation. Thus the false and unfounded criminal allegation by the 1st defendant that the Claimant fraudulently procured the signatures on Exhibit D and the content of Exhibit F constituted a fundamental breach of the Claimant’s contract and it amounts to constructive dismissal. Learned counsel therefore urged the Court to find and hold the 1st defendant constructively dismissed the Claimant. The natural consequence of constructive dismissal is that the dismissal is wrongful. 6. ISSUE THREE (3) If the answer to issue II is in the positive, and given the peculiar nature of Claimant’s employment contract, whether or not the Claimant is entitled to his full salary and other entitlements from February 2011 to December 2011. Arguing this issue learned counsel for the Claimant submitted that given the peculiar facts and circumstances of this case, the Claimant is entitled to his salary and other entitlements from February 2011 to December 2011. The submissions and arguments as well as authorities cited in the third issue for determination couched in the Defendant's written address do not represent the law in this case and with respect they are misconceived and misapplied. It is settled law that cases are determined by their peculiar facts. In Skye Bank Plc v. Akinpelu (supra) Ration 17, the Supreme Court stated this hallowed principle thus: “Each case must be considered on its own particular and peculiar facts or circumstances. No case is identical with the other or another. A decision is only an authority for what it decides and nothing else”. Counsel also referred to the case of Mobil Prod. (Nig) Unltd. V. Udo (2008) 26 WRN 53. That the peculiar facts and circumstances of this case are different from the facts of the cases cited and relied upon by the 1st Defendant’s Counsel and they are distinguishable. The first distinguishing factor in the case at hand can be found in Exhibit B. The Claimant’s contract is a contract for a fixed and ascertainable period. From Exhibit B, the contract is for one year and it commenced on 26/12/2010 and was billed to run till 25/12/2011. Secondly, the constructive dismissal of the Claimant by the 1st defendant is wrongful. On the measure of damages where a contract for a fixed term is wrongfully terminated, it was held in Mobil v. Asuah (2001) 30 WRN 25 at page 45 lines 30 40 thus: “Where a contract of employment is for a specified period, and the employee was wrongfully dismissed or removed from office then the award of damages in the full amount of salary and allowances and other entitlements which the employee would have earned if the contract of service had run up full course is the maximum that is recoverable except that the amount maybe reduced slightly for being payable as a lump sum”. (emphasis supplied by counsel.) That also the Supreme Court in Ilodibia v. N.C.C Ltd (1997) 7 NWLR 174 at page 202, para. D held: “Where a plaintiff is suing for wrongful dismissal, it implies that he himself has put an end to the contract of service. Assuming therefore that one is wrongfully dismissed, all he would be entitled to are damages up to the time of his action not up till the time of judgment.” Counsel continued that the general principle in master servant relationship stated in and other cases cited in the 1st Defendant’s written address are not applicable to the facts of this case. In Garabedion v. Jarmakani (1961) 1 All NLR 177 cited with approval in Mobil v. Asuah (supra), the contract was not one with statutory flavour. The contract in that case was for a fixed period of one year with provision for termination and payment in lieu of notice. But on the facts of the case, the Court held that the Plaintiff was entitled to his full salary, allowances and entitlements which the employee would have earned if the contract had run up its full course. The Plaintiff’s employment contract in the suit was wrongfully terminated. It follows therefore that the authorities of Ifeta v. SPDC (2006) All FWLR (Pt.314), Obot v. CBN (1993) FWLR (Pt. 310) 140, Rivers Vegetable Oil Company Ltd v. Egukole (2010) All FWLR (Pt. 544) 111 cited by the 1st defendant’s written address are of no moment and are inapplicable to the facts of this case. The Claimant pleaded his salary and entitlements in paragraph 34 of his Amended Statement of Facts and gave evidence on it in paragraph 32 of his witness deposition. During cross examination, the Defendant’s Counsel weakly cross examined the Claimant in his failed attempt to establish that production bonus and flare allowance are not standard allowance. The Claimant answered that his contract speaks for itself. Exhibit B attached to Exhibit A (the penultimate page of Exhibit A), titled Employment Agreement Exhibit B clearly contains production bonus and flare allowance. Therefore they are contractual counsel contended. He submitted that the Claimant’s evidence on his salary and entitlements are not challenged. On the effect of Counsel declining to cross-examine a claimant’s items of particularized head of special damages, the Supreme Court, Achike, JSC in C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142 at 152 paragraphs 5 — 10 held: “This is clearly not the situation in the case in hand. In contrast, both the pleadings and the evidence led by the respondent clearly identified each item of special damages, so also its value. By declining to cross-examine on the items of particularized head of special damages, the inescapable inference was irresistible, to wit, that the defendants/appellants conceded the items of special damages. (emphasis supplied) Counsel then submitted that the effect (sic) the unchallenged evidence of the Claimant is that the Court is bound to accept it as proved. In the alternative, assuming without conceding that the Claimant is entitled to the payment in lieu of notice, counsel submitted that by section 6 of Exhibit A the notice period is a minimum of one calendar month or 45 days or payment in lieu of notice. It is submitted that given the circumstances of this case, the maximum of 45 days should apply. The paucity of the argument and submission in paragraph FV of the 1st defendant’s written address that the Claimant should be entitled to N67, 119. 00 cannot be gleaned even from Exhibit R which formed the basis of the argument. That Exhibit R is the Claimant’s pay slip for January 14, 2011. It is clearly stated that it was for a period of seven days. N67,1 19. 00 is the Claimant’s net pay for seven days. It is therefore submitted that the 1st defendant Counsel's conclusion that the Claimant’s pay in lieu of notice is N67, 119. 00 is not borne out of Exhibit R. The 1st defendant having not attacked the computation of the Claimant’s salary stated in paragraph 32 of his written deposition, the figure stated therein are deemed admitted and he urged the Court to grant the full sum stated therein based on the authority of Mobil v. Asuah (supra). In the unlikely event that reliance is placed on the period of notice, it is submitted that the daily wage of the Claimant is easily ascertainable from his salary per shift. A shift is made up of 28 days and the Claimant’s salary is N228,889.34 (two hundred and twenty eight thousand eight hundred and eighty nine Naira thirty four kobo) from paragraph 32 of the Claimant’s written deposition. Applying minimal knowledge of arithmetic, the Claimant’s daily wage is N8,174.62K which translate to N367, 857. 90K (three hundred and sixty seven thousand eight hundred and fifty seven Naira ninety kobo) when multiplied by 45 days. ISSUE FOUR (4) Given the unproven criminal and sexual misconducts leveled against the Claimant, and the unchallenged evidence that he was wrongfully dismissed on ground of membership of a trade union, whether or not the Claimant is entitled to an award of general damages. Learned counsel submitted that it is not the law that an employee who is unlawfully or wrongfully dismissed is not entitled to award of general damages. The general principle that general damages is not awarded in master servant relationship admits to an exception. Again, the peculiar facts and circumstances of each case should be given due consideration by the Court. He relied on Skye Bank Plc v. Akinpelu (supra). In Mobil Prod. (Nig) Unltd v. Udo (supra), it was held at page 102 lines 40 — 5 as follows: “The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of the employment was as a result of the failure to give the required notice or as a result of alleged malpractice. If the wrongful termination 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 as a result of the latter then such determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice” (emphasis supplied) Counsel referred also to (1) Ezekiel v. Westminster Dredging Ltd. (2000) 9 NWLR (Pt.672) 248 at 262. (2) British Airways v. Makanjuola (1993) 8 NWLR (Pt.311) 276. Counsel continued that from the facts of this case the Claimant was alleged by the 1st defendant to have fraudulently procured the signatures of some of the workers who signed Exhibit D. The 1st Defendant did not lead any evidence in proof of this fact. This allegation is criminal in nature and by the provision of section 135 of the Evidence Act, 2011 and settled authorities it must be proved beyond reasonable doubt. He cited WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. Four of the five workers, Felix Ejutemiden, Luck Zaudumunnu, Ogala Abraham and Oniko Godspower, stated in paragraph 14 of the 1st Defendant’s Amended statement of defence, that the Claimant allegedly fraudulently procured their signatures on a blank page of Exhibit D, signed the first page of Exhibit D. DW1, DW2 and DW3 under cross examination testified that they were not present when Exhibit D was written/typed and/or signed. Again, the 1st Defendant did not deem it fit to call any of the listed workers to testify before this Honourable Court. By the provision of section 131(2) of the Evidence Act, 2011 the 2nd Defendant is saddled with the burden of the criminal allegation. The Claimant denied the averment of fraudulent procurement of signatures and gave evidence that all the workers that signed Exhibit D did so in their free will and volition and that they are all adults. It should be noted that being criminal offences, the Claimant does not bear the burden of proving his innocence. It is for the party asserting that should prove his guilt. DW1 under cross- examination confirmed that all the workers of the 1st Defendant are adults. The Claimant was not cross-examined by the defendants Counsel. It follows therefore that this allegation was not proved. In Exhibit F, the Defendants stated that the Claimant indulged in indecent, sexual and immoral misconduct. One is at lost as to where these weighty allegations are anchored given the evidence before this Honourable Court, learned claimant’s counsel stated. No specific fact was pleaded or evidence was led on sexual, indecent and immoral misconduct in spite of the mountainous weight they have on the Claimant’s character. The Claimant pleaded and gave evidence that prior to the setting up of the unlawful disciplinary panel, he had a smooth working relationship with the 1st defendant and that he had no disciplinary record. The 1st Defendant did not controvert this pleading and evidence. The 1st Defendant who pleaded that the Claimant had been given several verbal and written warning did not lead evidence to establish date, time, circumstances and disciplinary steps taken against the Claimant. It is therefore submitted that the Claimant’s case fall within the principle stated in Mobil Prod. (Nig) Unltd v. Udo, British Airways v. Makanjuola and Ezekiel V. Westminster Dredging Ltd that where the ground for wrongful dismissal “carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice”. Counsel submitted therefore, that the unproven spurious devastating criminal, sexual, immoral misconduct, including allegations of deceit, intimidation and other mind bogging allegations made against the Claimant go far beyond malpractice. Therefore the Claimant’s case comes under the exception to the general rule. Counsel then referred to the judgment of the Supreme Court in Ilodibia v. N.C.C Ltd(supra), which held thus: “Where a plaintiff is suing for wrongful dismissal, it implies that he himself has put an end to the contract of service. Assuming therefore that one is wrongfully dismissed, all he would be entitled to are damages up to the time of his action not up till the time of judgment.” From the above authority, learned counsel submitted that it is not the law that an employee who was wrongfully dismissed cannot be awarded general damages over and above the period of notice. In the above case, the appellant was wrongfully dismissed in circumstances that the Court termed constructive dismissal because he was suspended indefinitely and placed on half salary. Counsel submitted therefore that it is beyond dispute that an employee is entitled to general damages in appropriate circumstances. He submitted further that where the law allows a party to recover damages in monetary form under distinct heads of claim which were pleaded and proved, it cannot amount to double compensation. It is instructive to note that in the case of Mobil Producing Nig. Unltd v. Udo (supra) cited by the 1st Defendant’s Counsel in paragraph F.VII of the 1st Defendant’s written address, in support of his argument that an award of general damages would amount to double compensation, the Court of Appeal, affirmed the award of general damages of N2,000, 000. 00 (Two Million Naira) made by the trial Court after the sum of N4, 368, 500. 00 was awarded as the respondent’s salary and entitlement up to the time of judgment. By citing this authority, it is submitted that the 1st defendant’s Counsel conceded that the Claimant is entitled to award of general damages given the peculiar facts and circumstances of this case. That the Claimant pleaded and led evidence to show that the main reason for his constructive dismissal was victimization on ground of his membership and position in CCESSA. He referred the Court to paragraphs 25, 26, 27 and 31 of the Claimant’s Amended Statement of Facts and paragraph 17 of his Amended Reply to the 1st defendant’s Amended Statement of defence as well as paragraphs 24, 25, 26, 46 and 53 of the Claimant’s written statement on oath. The Claimant was not cross-examined on this evidence. The consequence in law is trite, they are deemed admitted. The Claimant’s witness also gave evidence in support of victimization of the Claimant by the 1st Defendant on ground of CCESSA membership. He referred the Court to paragraphs 2, 3 and 4 of his written statement on oath. Again, he was not cross — examined. The Claimant tendered Exhibits J, K, L, M, N, 0 and S to prove the existence and his membership of CCESSA. Exhibits P, Q and T specifically establish the Claimant’s claim of victimization. DW1 read the specific complaints against him of harassment of CCESSA members in Exhibit P under cross examination. Counsel continued that the testimony of DW1 that the Claimant was not approached by Mr. Choi and M.S Kim to relinquish his position in CCESSA cannot stand as DW1 confirmed that he was not present when the Claimant met Mr. Choi. It is submitted further that by Exhibit U, DW1 was employed by the 2nd defendant on 14/9/2010 while the Claimant met Mr. Choi in August 2010. Any evidence to the contrary as to when DW1 was employed by the 2nd Defendant goes to no issue as it was not pleaded. He relied on the case of Nig. Advert Serv. Ltd v. UBA PLC (1999) 546. (No detail citation given by counsel). It is equally submitted that oral evidence cannot alter the content of a document. See section 128 of the Evidence Act, 2011. It is submitted therefore that the Claimant established by credible evidence that he was victimized by the 1st Defendant as a result of his membership of CCESSA and his position. He submitted further that by virtue of the provisions of section 9 (6)(a),(b) and (c) of the Labour Act, CAP L1 Laws of the Federation of Nigeria, 2004, motive and intention for terminating an employment is now relevant whether or not the termination was properly done. The above provisions of the Labour Act, especially section 9 (6) (b) prohibits dismissal or the prejudice of a worker by reason of trade union membership. The provisions were not enacted because parliament had nothing to do. The reason is to safeguard workers from victimization on the ground of trade union membership and activities. That the 1st Defendant not only breached the provisions of section 9 (6) (a), (b) and (c) of the Labour Act, but also dismissed the Claimant for exercising his right to freely associate with a trade union which is guaranteed by section 40 of the 1999 Constitution of the Federal Republic of Nigeria as Amended. He submitted that the 1st Defendant’s Counsel relied on general principle of law as it relates to employment contract without looking at the particular facts and circumstances of this case. In Skye Bank Plc v. Akinpelu (supra), the Supreme Court, per Ogbuagu, JSC at 486 para. E-F held: “Each case must be considered on its own particular or peculiar facts or circumstances. No one case is identical with the other or another. A decision is only an authority for what it decides and nothing more.” (emphasis supplied by counsel.) That assuming without conceding that motive for terminating employment is irrelevant, it is submitted that it only applies where the employment was properly determined. See Ajayi v. Texaco Nigeria Ltd (1987) 3 NWLR (Pt.61) 577 and Agbo v. CBN (1996) 10 NWLR (Pt.478) 370 at 377. The position of the law as espoused in these cases is that: where an employment has been properly terminated in terms of the contract of service, intention and motive of termination become irrelevant. The operative phrase is “properly terminated in terms of the contract of service”. The case of the Claimant is that he was constructively dismissed. This means that his contract was not properly terminated. Where a case of constructive dismissal is made out, the irresistible conclusion is that the employee was wrongfully terminated. For the 1st Defendant Counsel to rely on the authority in support of his argument that motive is irrelevant in paragraph EIV of the 1st Defendant’s written address, the 1st Defendant must first satisfy this Honourable Court that it properly terminated the contract of the Claimant. He submitted that the 1st Defendant having pleaded and led evidence that the Claimant’s contract was not terminated cannot rely on this principle of law. The 1st Defendant cannot approbate and reprobate. See Onyekwelu v. ELF Petroleum Nig. Ltd (2009). That it is beyond dispute, that the 1st Defendant deliberately ensured that the Claimant was constructively dismissed. The 1st Defendant knew that the 2nd Defendant had no contractual substratum to set up its so called 3 man disciplinary panel but made sure that the Claimant was subjected to it. The 1st Defendant was also aware of the limit to which the Claimant may be disciplined as contained in his employment contract, but however, flagrantly disregarded its own contract in a very wicked and humiliating manner. The conduct of the 1st Defendant can best be captured by the words of Orah, J.C.A (as he then was) in Steyr (Nig) Ltd. v. Gadzama (1995) 7 NWLR (Pt. 407) 305 at page 337 paragraph H, where he stated thus: “I consider the manner of the termination of the appointment of the respondents as grossly irresponsible, wrongful and a naked exhibition of power devoid of human milk and unwarranted humiliation of the respondents without reasonable cause.” Counsel submitted that an employer who deliberated (sic) employed falsehood, threat, intimidation and flagrantly breached the very foundation of his contract with his employee and knowing that his actions would adversely affect the job or economic prospect of the employee cannot escape liability because the general principle is that the employee is only entitled to be paid salary in lieu of notice. The Claimant pleaded in paragraph 33 of his Amended statement of facts as follows: “The Claimant avers that Escravos Gas to Liquids Project is an ongoing project and his legitimate expectation is to have his employment contract with the 1st Defendant renewed yearly. The alleged reasons given (without proof) for his suspension, demotion and placement on probation are capable of making it difficult if not impossible for him to secure another job as a Civil Engineer or otherwise in Nigeria or abroad.” That he gave evidence on the above pleaded facts in paragraph 31 of his written statement on oath. The 1st Defendant did not controvert the Claimant’s pleadings neither was he cross-examined by Counsel. The legal effect and implication is that the 1st Defendant admitted the averments. It is therefore submitted that the Claimant is entitled to not just damages but substantial damages. It is unconscionable for a party to deliberately inflict injury on another because of his erroneous belief that the law has prescribed inconsequential or trifle penalty for his malicious action. He submitted that the law is not an ass to be driven on this reckless and dangerous road and equity will certainly not accept the above proposition. He further submitted that the Claimant’s special damages claims and general damages claim are separate and distinct claims. The Claimant led evidence in separate proof of the heads of claims. He contended therefore that both claims are mutually exclusive and one is not tied to the other. The success of the claim of general damages is not therefore contingent on the special damages claim. Counsel therefore urged the Court to treat both claims separately, make specific findings on them and award appropriate sums in light of the evidence before the Court. ISSUE FIVE (5) Whether the Claimant is entitled to cost of this action against the defendants on indemnity basis? Learned counsel submitted that It is settled principle of law that cost follows event. That if the issues for determination above are resolved in favour of the Claimant, the Claimant is entitled to cost. The head of cost claimed is on indemnity basis i.e that the Claimant should be fully indemnified by the defendants for the cost of instituting and prosecuting this action. The Claimant will lead evidence after judgment is delivered on the cost he actually incurred in this case so as to be fully indemnified. The Defendants entered into an unholy alliance and inflicted ignominable injury on the Claimant. If the Claimant’s claim succeeds, he should be entitled to the actual costs he incurred in filing and maintaining this suit. This does not and will not amount to double compensation. CONCLUSION From the averments in the pleadings filed in this suit and evidence led during trial coupled with the principles of law enunciated in the arguments and submission as well as authorities cited, learned counsel submitted that the Claimant has discharged the burden of proof on the balance of probabilities to entitle him to all the reliefs sought against the 1st Defendant. He respectfully therefore, urged the Court to take into consideration the peculiar facts and circumstances of this case to find and hold that: I. The alleged reasons given for suspending, demoting and placing the Claimant on probation are false and unconnected with the alleged incident which took place at the 1st Defendant’s project site on January 27, 2011. II. The Claimant’s suspension for a period of four weeks without pay, his demotion, placement on probation and the mandatory requirement to write a letter of apology to the 1st Defendant and give an undertaking to be of good behaviour signed by the executive of a junior workers union which are against the express terms and conditions of his employment contract is wrongful and amounts to Constructive Dismissal. III. The Claimant is entitled to the sum of N4, 671, 940. 08K (Four Million, Six Hundred And Seventy-One Thousand, Nine Hundred And Forty Naira and Eight Kobo representing his salary and other entitlements from February to December 25, 2011 as special damages. IV. Given the peculiar circumstances of this case and the unproven weighty criminal and moral allegations leveled against the Claimant by the 1st defendant, the Claimant is entitled to award of substantial general damages. V. The Claimant is entitled to the award of cost of instituting and prosecuting this suit against the defendants jointly and on indemnity basis. WRITTEN ADDRESS IN SUPPORT OF THE CLAIMANT’S CASE AGAINST THE 2ND DEFENDANT ISSUES FOR DETERMINATION. Learned claimant’s counsel formulated the following issues for the determination of its case against the 2nd defendant: I. Given the facts and circumstances of this case, whether or not the setting up of the Disciplinary Panel of 8/2/2011 by the 2nd Defendant made up of its employees and/or representatives or those authorized to act on its behalf wherein the Claimant was suspended, demoted and placed on probation was an unlawful interference with the Claimant's employment contract with the 1st Defendant. II From the facts and circumstances of this case, whether or not the setting up of the disciplinary panel of 8/2/2011 by the 2nd Defendant, its proceedings and outcome induced the breach of Claimant's employment contract with the 1st Defendant. III If the issues above are answered in the affirmative, whether the Claimant is entitled to damages from the 2nd Defendant. IV. Whether the Claimant is entitled to cost of this action against the 2nd defendant on indemnity basis. ISSUE ONE (1) Given the facts and circumstances of this case, whether or not the setting up of the Disciplinary Panel of 8/2/2011 by the 2nd Defendant made up of its employees and/or representatives or those authorized to act on its behalf wherein the Claimant was suspended, demoted and placed on probation was an unlawful interference with the Claimant’s employment contract with the 1st Defendant? Learned Claimant's counsel submitted that given the entire circumstances of this case, the setting up of the disciplinary panel of 8/2/2011 by the 2nd Defendant was an unlawful interference with the Claimant’s employment. That the Claimant’s claim against the 2nd Defendant are rooted in TORT. A tort of interference of breach of contract is committed where “C” a third party, by an unlawful act directly or indirectly prevents “A” from performing or discharging his contractual obligation to “B”. The tort is also committed where “C” directly or indirectly through his act makes “B” to break his contractual obligation with “A”. In both instances, “B” who suffers damages(sic) as a result of the action of “C” could bring an action against “C” in tort and claim damages. Counsel referred to Chapter 18 of Winfield & Jolowicz on Tort, 15th Ed by W.V.H Rogers, London, Sweet & Maxwell Ltd. 1998. The operative phrase is a third party. It does not matter in this tort that the third party is not a stranger to the contracting parties. What matters is that the third party is not a party to the bilateral contract between the parties (as in this case between the Claimant and the 1st Defendant). That this position of law on the tort of interference with contract was long settled in the case of Bowen v. Hall (1881) 6 Q.B.D. 333. The tort also covers situations where a third party uses threat and/or intimidation to hinder the performance of a contract between the contracting parties. All a Claimant claiming under this head of tort needs to show is that the defendant through unlawful means directly or indirectly interfered with his contract with another and the interference resulted in breach of the contract. The Claimant may also show that he suffered damages as a result of “C’s” action. In Sparkling v. UBN Nig. Ltd (2001) 34 WRN 1 the Supreme Court per Ogundare JSC at page 17 held: “The tort of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another”. Applying this principle to the case at hand, counsel now then proceeded to examine the ingredients whether they are present. According to counsel, to succeed under the tort of unlawful interference with contract, the Claimant must prove: (a) That a contract exists between him and the Defendant and (b) That the 2nd Defendant unlawfully interfered with the existing contractual rights and obligation between the Claimant and the 1st Defendant. The Claimant’s Employment Contract with the 1st Defendant (Exhibits A and B) Learned counsel submitted that the existence of contractual agreement between the Claimant and the 1st Defendant is not in dispute in this case and he referred the Court to Exhibits A and B. It is common ground in this case that the terms and conditions regulating the Claimant’s employment are in writing. It is also common ground that the Claimant’s rights and obligations as it relates to disciplinary measures and procedures are equally in writing. DW1, an employee of the 2nd Defendant (the Court is referred to Exhibit U and his testimony under cross-examination wherein he admitted that he is an employee of the 2nd defendant) who on record gave evidence for the 1st Defendant confirmed under cross examination that the Claimant’s contractual rights and obligations are in writing. DW3 also stated under cross — examination that “he believes that the Claimant ‘s contractual rights and obligations are in writing". The parties to Exhibits A and B are clear and unambiguous. That Exhibits A and B do not by any stretch of imagination contemplate the 2nd Defendant herein as a party. The 2nd Defendant in paragraph 2 of its Amended Statement of Defence averred that “...the Claimant was engaged and remained the staff/employee of the 1st Defendant”. Counsel then submitted that the 2nd defendant by this averment admitted that it is not a party to the contract of employment between the Claimant and the 1st Defendant and also the unlawfulness of its action. The 2nd Defendant cannot approbate and reprobate. The 2nd defendant cannot in one breathe say that the Claimant is an employee of the 1st defendant and in another arrogate the discipline of the Claimant to itself. It is trite law that parties and the Court are bound by pleadings and evidence. He then referred to the case of Skye Bank Plc v. Akinpelu (2010) All FWLR (Pt. 526) 460. That assuming without conceding that the 2nd defendant is referred to in Exhibit A, the purpose of such reference is clear and unambiguous. It is purely to state that the 2nd Defendant is the 1st Defendant’s client and not for employer employee relationship. To drive home this point, learned counsel invited the Court to take a look at Exhibit U. Exhibit U is an employment contract between the DW1, Dickson Eyenmienbai and the 2nd Defendant. The job description of DW1 is that he is an employee of the 2nd Defendant responsible for Human Relations issues between the 1st and 2nd Defendant. Counsel then submitted that it will (be) bizarre and total misconception for an argument to be made that DW1 is a staff of the 1st defendant or that where he infracts the terms and conditions of Exhibit U, the 1st Defendant should take disciplinary action against him. What is good for the goose is also good for the gander. If the 1st Defendant cannot take disciplinary actions against DW1, it follows that the 2nd Defendant cannot arrogate to itself disciplinary powers over the Claimant. DW1 and DW3 who purport to be industrial relations officers ought to know the import of Exhibit A. The 2nd defendant cannot in law run away from its unlawful actions. The authority empowered by the contract to discipline the Claimant. To learned counsel, Section 18 of Exhibit A provides for grievance procedure. The section also expressly provides that the Admin Dept (Facilitator) which is a department in the 1st Defendant (the Claimant’s employer) is the authority vested with disciplinary jurisdiction as well as the disciplinary measures to be taken against the Claimant in event of any infraction (which is not conceded). That to drive home the sacrosanct nature of Exhibit A, section 9(d) provides: “With due regard to section 9 c), it is agreed that this Exhibit A, Exhibit B, and the Employment Agreement constitute the entire understanding between the Company and the Employee relating to compensation and other conditions of employment and that no additions or future understanding shall be binding upon the Company or the Employee unless reduced to writing and signed by the designated representative of the Company and by the Employee’. (emphasis supplied by counsel). Counsel submitted strongly that “other conditions of employment” included discipline and authority empowered to exercise disciplinary power over the Claimant. There is nothing on record whether by way of pleadings or evidence to show that Exhibit A was amended and that the Claimant and the representative of the 1st defendant executed same. It is submitted therefore that Exhibit W4 does not and cannot apply to the Claimant in the absence of proof that it was signed by the Claimant and the designated representative of the 1st Defendant. That assuming without conceding that Exhibit W4 applies to the Claimant, it is submitted that the aim and scope of Exhibit W4 is clear and unambiguous. Exhibit W4 relates to harassment or violence between workers which must be reported by an offended worker. The first authority that an offended worker should report to is his immediate supervisor which is stated to be the preferable first option. Where the offended worker is not comfortable with his supervisor, he should talk to his HR/JR representative or officer. Lastly, the report may be made to SGC JR group or security. Counsel submitted therefore that the provision of Exhibit W4 cannot be invoked against any worker nay the Claimant in the absence of complaint made by a worker who has been offended. That From the pleadings filed by the 1st and 2nd Defendants and the evidence before this Court, there is nothing to suggest that any worker or those who signed Exhibit D made any complaint (whether oral or in writing) against the Claimant for violating Exhibit W4 to his immediate supervisor. There is equally no evidence or any complaint to any HR/JR officer. Finally, there is no scintilla of evidence that any worker on the project or any worker who signed Exhibit D and who was dissatisfied with either his immediate supervisor or HR/IR representative or officer made any complaint whether oral or written to SGC IR group or security. Again, going through length and breadth of the pleading filed by the Defendant, there is no averment where it was stated and/or the name of any worker who reported that the Claimant breached the provisions of Exhibit W4 against him. Counsel submitted therefore that the 2nd Defendant cannot hide under or invoke Exhibit W4 as justification of its unlawful actions. Counsel submitted further that Exhibit D cannot by any stretch of imagination qualify as infraction of Exhibit W4. That Exhibit W4 which deals with worker to worker issues does not extend to the situation in this case. Assuming without conceding that Exhibit D was not written by the direction of M.S Kim, counsel submitted that it would not have fallen within the purview of Exhibit W4 because the issue would not have been between a worker and another worker or workers to workers. Therefore there is no contractual or legal substratum for the so called disciplinary panel. It follows therefore that its composition, findings and sanctions have no foundation to rest. It is settled law that that the 2nd Defendant cannot place something on nothing and expect it to stand. He then relied on the celebrated case of Macfoy v. UAC (1962) AC. Furthermore, learned counsel submitted that the Section 11(e) of Exhibit A referred to in paragraph 4.1 of the 2nd Defendant’s final written address does clothe the 2nd Defendant with disciplinary powers over the Claimant. There is nothing on record in this case to show that the Claimant failed to follow any site rule issued by the 1st defendant or its client after Exhibit A was executed. The “Site Policies, Procedures and Rules issued from time to time”, contemplated by section 11 (e) of Exhibit A are to come into existence after Exhibit A. Assuming without conceding, according to counsel, that the Claimant failed to follow any site policy, procedure or rule, counsel submitted strongly that it is the 1st defendant from the clear provisions of Exhibit A that can exercise disciplinary powers over him and not the 2nd defendant. That there is nowhere in section 11(e) that the 2nd Defendant is vested with disciplinary power over the Claimant. The case here can be likened to a situation where an officer in the Nigerian army in joint security patrol with officers of the Nigeria Police Force commits an offence or breaches the patrol regulations and the police set up an orderly room trial meant specifically for its officer, tried the army officer and disciplined him. That in Mobil Prod. (Nig) Unltd. V. Udo (2008) 26 WRN 53, the respondent an employee (a driver) of the appellant who went through training at the Police Training School Calabar to perform his job effectively, was tried by the police by way of orderly room trial. Sequel to the trial, the respondent was suspended from duty by the appellant without pay. The Court of Appeal held that the fact that the respondent wore police uniform and received salary circuitously through the police did not make him a police officer to warrant the orderly room trial. That the facts of the present case and the actions of the 2nd defendant against the Claimant are akin to the role the police played in the case cited. Counsel further submitted that the argument contained in paragraph 4.2 of the 2nd Defendant’s final written address that the Claimant consented to being disciplined by the 2nd defendant by the provision of section 11(e) of Exhibit A, has no factual and/or legal basis. Section 11(e) cannot be stretched to accommodate this argument. That the 2nd Defendant also in a feeble but woeful attempt (which is obviously an afterthought) sought to hinge the setting up of its unlawful disciplinary panel on an alleged shut down of operation at the project site for two hours in paragraph 6 of its Amended Statement of Defence. There is nothing in the Amended Statement of Defence or the testimony of DW1 and DW2 to show the Court the date or time the site was allegedly shut down for two hours. This allegation was specifically denied in paragraph 6 of the Claimant’s Amended Reply to the 2nd Defendant’s Amended Statement of Defence. That reliance placed on section 18 (f) of Exhibit A by the 2nd Defendant’s Counsel in paragraph 4.10 of the 2nd defendant’s final written address vindicates the Claimant’s evidence as well as that of his witness that there was no work stoppage at the site. This is because, counsel submitted, from the clear provision of section 18 (f) of Exhibit A, if the Claimant and other workers who signed Exhibit D, indeed stopped work, embarked on strike or caused disruption of work for two hours, there would not have been any need to set up the unlawful disciplinary panel, their employment would have been deemed terminated. In any event, there is nothing in section 18(f) to suggest or clothe the 2nd Defendant with power to enforce its provision. Counsel also submitted that reference made to the testimony of DW2 under cross-examination that “I am aware that Patrick was suspended for 28 days for participating in illegal strike and work stoppage”, goes to no issue whether elicited from cross-examination or not. There is nowhere in the pleadings of the 2nd Defendant relating to illegal strike and the 2nd Defendant did not amend its Amended statement of defence. In Nig. Advert Serv. Ltd v. UBA PLC (1999) 546, at 555, it was held as follows: “As observed supra, in law, evidence led on facts not pleaded goes to no issue and accordingly is inadmissible. And where it has been mistakenly admitted it should be expunged. This is the legal position whether the evidence was elicited in chief or under cross-examination”. That the Claimant in paragraph 43 of his written statement on oath gave evidence as follows: “There was no work stoppage or shut down of operation at the project on 27/1/2011 for two hours or any other time. I did not hinder, or limit normal or any operation of the 1st Defendant neither did I interfere with the work of the affected workers or any other worker on 27/1/2011 or any other date. The 2nd Defendant did not make any alleged enquiry about any perceived shut down as none occurred. No security threat or implication arose from the legitimate spill demand. I was paid my full wage for 27/1/2011”. Continuing, learned claimant’s counsel stated that the Claimant maintained during cross-examination that there was no disruption of work at the project site on 27/1/2011 as a result of writing and signing of Exhibit D. The Claimant’s witness, Fidelis Obanokhe also gave evidence in paragraph 4 of his witness statement on oath that there was no work stoppage on 27/1/2011 for two hours or any other time and that the 2nd Defendant’s officials did not come to the 1st Defendant’s work site to address any spill related issue or make any promise to pay the spill allowance. The 2nd Defendant’s Counsel did not cross examine the Claimant witness on the above evidence. The legal effect and consequence in law is that they are deemed admitted or conceded by the 2nd Defendant and the Honourable Court is bound to accept that fact as proved. On the effect of Counsel declining to cross-examine a claimant’s items of particularized head of special damages, the Supreme Court, per Achike, JSC in C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142 at 152 paragraphs 5 — 10 held: “This is clearly not the situation in the case in hand. In contrast, both the pleadings and the evidence led by the respondent clearly identified each item of special damages, so also its value. By declining to cross-examine on the items of particularized head of special damages, the inescapable inference was irresistible; to wit, that the defendants/appellants conceded the items of special damages. (emphasis supplied by counsel.) Counsel continued that the Claimant gave evidence in paragraph 43 of his written statement on oath that he was paid his full wage for 27/1/2011. This piece of evidence was not contradicted by the defendants neither was the Claimant cross-examined on it. The legal effect and consequence is that it is deemed admitted. Section 9 (c) of Exhibit A expressly provides for “No work, No Pay”. That it is inconceivable that given the entire circumstances of this case, the Claimant would have been paid his full wage if there was disruption of work for two hours on 27/1/2011 or any other day in January 2011. That DW1, DW2 and DW3 further corroborated the testimonies of the Claimant and his witness when they admitted under cross-examination that all the workers that signed Exhibit D were paid their full salary in January 2011. The 2nd defendant also in its failed bid to justify the setting up of the unlawful so called disciplinary panel sentimentally raised the issue of threat to the project. Counsel submitted that from the tone and content of Exhibit D, there is nothing to suggest any alleged threat to the project. It is submitted that Exhibit D would not emanate from a worker or group of workers who are not civil in nature. The Claimant and all those who signed Exhibit D should be applauded for pursuing their legitimate claim lawfully, peacefully and in a very civil manner, according to learned claimant's counsel. Continuing, counsel stated that the 2nd Defendant also sought to anchor the setting up of the unlawful disciplinary panel on the fact that Exhibit D was addressed to it and requested for its intervention on the spill issue. Again, the shallowness of this reason will be exposed anon. The reason for Exhibit D was pleaded in paragraphs 10 and 11 of the Claimant’s Amended Statement of Facts. The Claimant gave evidence on this point in paragraphs 9 and 10 of his written statement on oath. The Claimant again, was not cross-examined on this evidence. The consequence in law is that his testimony is deemed conceded or admitted. See C.E.C.T.C.S v. Ikot (supra). That the content and purpose of Exhibit D cannot be gleaned from isolating words as the 2nd Defendant sought to do in paragraph 4.5 and 4.6 of its written address. Exhibit D was written on direction of Mr. M.S Kim, the Administration Manager of the 1st defendant and it is a plea to the 2nd Defendant to assist the Claimant and other affected workers get their legitimately earned money. Exhibit D is not a complaint by any aggrieved worker against the Claimant. It was not an invitation to the 2nd defendant to arrogate to itself unlawful disciplinary powers. It is therefore submitted that the equitable doctrine of volenti non fit injuria relied on in paragraph 4.6 of the 2nd defendant’s final written address with respect is uncalled for and wrongly applied to the facts of this case. In equal force the defence of estoppel does not avail the 2nd defendant. It is submitted that the Claimant cannot be said to have consented to illegality. The doctrine of estoppel in this case applies against the defendants in that it was M.S Kim’s direction that gave birth to Exhibit D. Learned counsel stated further that it is common ground in this case that it is the 2nd Defendant that approves payment of spill over allowance. It is also undisputed that Exhibit D was written and sent after Exhibit W6. It is clear from Exhibit W6 minuted on at the last page by the 2nd Defendant’s official, Felix Ugokpa on 17/1/2011 that the Claimant and the other workers who signed Exhibit D were not approved for payment of the spillover allowance. To counsel, it is instructive to note that the 1st Defendant’s employee, M.S Kim who signed Exhibit W6 is also the person who directed the Claimant and other affected workers to raise the issue of non-payment of the spill claim with the 2nd Defendant. The Defendants (especially the 2nd Defendant) are therefore estopped from complaining about what was done on the admitted direction of the 1st Defendant. DW1, DW2 and DW3 admitted under cross examination that they were not present when the Claimant and other workers affected by the spill issue met Mr. M.S. Kim. Mr. M.S Kim was not called to refute a specific averment made against him. It is also very striking that M.S Kim was also specifically mentioned in Exhibit D. That the evidence of DW3, Chris Nevo, in paragraph 9 of his witness statement on oath, that “The Defendants, through the EGTL Industrial Relations Committee set up a 3 man Disciplinary Panel to amongst other things, look into the matter and the attendant crisis and make necessary recommendation....”, goes to no issue. The 2nd Defendant did not in any paragraph of its Amended Statement of Defence plead “EGTL Industrial Relations Committee”. It is settled law that evidence on fact not pleaded goes to no issue. See Nig. Advert Serv. Ltd v. UBA Plc (supra) at 555. That assuming without conceding that the 2nd Defendant pleaded the existence of “EGTL Industrial Relations Committee”, it is the submission of counsel that the 2nd Defendant did not tender or refer this Honourable Court to document that creates or recognized its existence. That DW1 and DW3 having admitted under cross examination that the Claimant’s contractual rights and obligations are in writing, documentary evidence must be produced to give life and legitimacy to the fictitious and amorphous “EGTL Industrial Relations Committee”. Counsel added that it should be noted that the 2nd Defendant did not tender any document in this case. The Court cannot therefore, speculate on the existence of the so called “EGTL Industrial Relations Committee”. It is not the duty of the trial Court to make its own case outside the evidence and pleadings of the parties. Reliance was paced on Skye Bank Plc v. Akinpelu (supra) Ratio 16. Counsel further submitted that assuming without conceding that there is any committee known as EGTL Industrial Relations Committee, Chevron Nigeria Ltd, which all the parties conceded as the main contractor of the EGTL project would have been part of it. Counsel referred the Court to the cover page of Exhibit G and submitted that the fictitious so called 3 man panel EGTL Industrial Relations Committee could not have been made up of ONLY the 2nd Defendant’s employees. Learned counsel continued that another alleged sentimental reason alluded to by the 2nd Defendant for setting up the unlawful disciplinary panel was that there was agitation at the work site and it posed security risk. For this the 2nd Defendant invited the Court to take judicial notice of the volatile nature of Niger Delta Region. The Claimant in paragraphs 4, 6, 9 and 10 of his Amended Reply and paragraph 43 of his written statement on oath respectively, pleaded and gave evidence that there was no disruption of work at the site as a result of Exhibit D and no security implication arose. The Claimant also testified that the 2nd Defendant did not make any enquiry about any perceived shut down as none occurred. The 2nd Defendant’s Counsel did not cross-examine the Claimant on this testimony. The legal effect and consequence of this failure is settled. They are deemed admitted. The Claimant’s witness also gave evidence in support of this fact in paragraph 4 of his witness statement on oath and he too was not cross-examined. That it is settled law that he who alleges must prove. The 2nd Defendant or the 1st Defendant did not lead evidence of any (or credible evidence) of alleged security threat to the project. Having failed to lead evidence, the 2nd Defendant Counsel in desperation is inviting the Court to take judicial notice of the fact that the Niger Delta Region is volatile. This desperation on the part of 2nd Defendant has no legal basis. The burden of proof of this weighty allegation cannot be discharged by the invitation to take judicial notice. No security report was tendered to show that the project site is volatile. As already submitted above Exhibits A and H make provisions for NO WORK NO PAY policy and DW1, DW2 and DW3 confirmed under cross-examination that the Claimant and all the workers who signed Exhibit D were paid their full salary for January 2011. It is therefore submitted that on the undisputed evidence before the Court there was no security threat to the project on 27/1/2011 or any other day as a result of Exhibit D or that work was disrupted for two hours on 27/1/2011 or any other time. That assuming without conceding that there was security threat as a result of Exhibit D and that the Claimant was responsible, counsel submitted that from the documentary evidence before this Honourable Court, the 2nd Defendant was not empowered to set up any disciplinary panel to try and discipline the Claimant. 2nd Defendant’s knowledge of the Existence and content of the terms and conditions of Claimant’s Contract. Learned counsel stated that it is common ground that the Claimant’s contractual rights and obligations are in writing. It is beyond dispute that the 2nd Defendant had knowledge of the existence of Exhibit A. DW1 and DW3 confirmed this fact under cross-examination that they are aware of the nature of the Claimant’s contract. Assuming without conceding that Exhibit G governs the relationship between the Claimant and the 1st Defendant, it is equally submitted that the 2nd Defendant also had knowledge and content of Exhibit G. Three of the 2nd Defendant’s representatives, Bossman Mayomi, Geoffrey Mason and David Lovelady signed pages 20 and 21 on behalf of the 2nd defendant. The acronym SGCL stands for the 2nd Defendant. It is interesting to note that the same David Lovelady signed Exhibit U, the employment letter of DW1. Again, the 2nd Defendant who claimed in paragraph 4 of its Amended Statement of Defence that “...all sub-contractors such as the 2nd Defendant are mutually responsible for the discipline of their respective staff or employees” cannot claim ignorance of the disciplinary dispensation in the Claimant’s employment contract. The 2nd Defendant in law is estopped from feigning such ignorance. It was also conceded by the 2nd Defendant, as pleaded by the Claimant, that the so called 3 member disciplinary panel was made up of its employees only. Counsel referred the Court to the answer given by DW1 and DW3 under cross-examination. To counsel, it is very interesting to observe that DW1, Dickson Eyenmienbai, who purportedly gave evidence on behalf of the 1st Defendant, is an employee of the 2nd Defendant. The Claimant pleaded this fact. DW1 confirmed it under cross examination. Exhibit U puts the issue to rest. Counsel submitted that the legal effect and consequence of DW1’s evidence as contained in his written statement on oath and the specific allegations and evidence against him in this case as well as evidence elicited from him during cross examination are all imputed on the 2nd Defendant. The 2nd Defendant cannot run away from the fact. The 2nd Defendant must swim or sink with the legal strategy it adopted in this case. Counsel submitted therefore that apart from the unlawfulness of the so called disciplinary panel, the 3 man panel made up of the 2nd Defendant’s employees were aware of the maximum disciplinary measures contained in the Claimant’s contract. The panel deliberately ignored the express provisions. The 2nd Defendant also maximized its position as the party that engaged the 1st Defendant for the EGTL project and acted as a thin god by arrogating to itself disciplinary jurisdiction it did not possess. The averment in paragraph 15 of the 2nd Defendant’s Amended Statement of Defence and the evidence of DW3 in paragraph 16 of his written statement on oath that the findings of the disciplinary panel were mere recommendations is an admission that the 2nd Defendant knew that the 1st Defendant would act on it. It is submitted that this averment in paragraph 15 of the 2nd Defendant’s Amended statement of defence flies in the face of Exhibit F. Exhibit F is a two paged document. The second page clearly carries the logo of SGC, the 2nd Defendant on the top right corner. DW3 identified and confirmed that SGC is the 2nd Defendant during cross examination. Page 2 of Exhibit F is clearly headed “Suspension Notice” and the Claimant was suspended for four weeks without pay stipulating violation of 3, 6, 9, 12 and 13 as the reasons for the suspension as against the maximum of ten days provided for in Exhibits A and H. The 2nd Defendant jointly made Exhibit F with the 1st Defendant and its content is clear. Exhibit F cannot qualify as mere recommendations. Learned counsel further submitted that the 2nd Defendant who averred and led evidence in paragraph 19 of its Amended statement of defence that “...The Claimant refused and neglected to comply with the terms of the discipline given by the defendant and duly communicated to the Claimant... ", cannot be heard to say that it made mere recommendations. The Court was also referred to paragraphs 16 and 20 of the written statement on oath of DW3. It is clear therefore from the above averments and evidence that the 2nd defendant knew that whatever decision reached by the illegal disciplinary panel would fully bind the 1st Defendant and that the 1st defendant would act on it. Counsel submitted that the 2nd Defendant actually suspended the Claimant whom it did not employ. This action of the 2nd defendant clearly is an unlawful interference with the Claimant’s contract and it directly induced the 1st Defendant to breach the Claimant’s contract. In the alternative, it is submitted that the 2nd defendant knew the consequence of Exhibit F that it would lead to the breach of the Claimant’s contract. From the state of pleadings and evidence adduced in this matter, learned counsel urged the Court to find and hold that the so called Disciplinary Panel of 8/2/2011 made up of the employees and /or representatives or those authorized to act on behalf of the 2nd Defendant, wherein the Claimant was suspended, demoted and placed on probation was an unlawful panel and its actions constituted interference with the Claimant’s employment contract with the 1st Defendant. Counsel finally submitted that where a case of unlawful interference is made out, the natural consequence is that the injured is entitled to award of damages. He cited the case of Nissan (Nig) Ltd v. Yoganathan (2010) 4 NWLR (Pt. 1183) 135. ISSUE TWO (2) From the facts and circumstances of this case, whether or not the setting up of the disciplinary panel of 8/2/2011 by the 2nd Defendant, its proceedings and outcome induced the breach of Claimant’s employment contract with the 1st Defendant. Arguing this issue, learned counsel submitted strongly that taking into account the entire circumstances of this case, the 2nd Defendant’s actions induced the breach of the Claimant’s contract by the 1st Defendant. That Inducement of breach of contract is a TORT which gives the injured party claim for damages. This tort is committed where a third party’s unlawful act makes it impossible for contracting parties to perform their obligations or exercise their rights under a contract. That it is not in dispute that the Claimant prior to the setting up of the unlawful disciplinary panel on 8/2/2011 had a smooth relationship with the 1st Defendant from October 16, 2007. He referred the Court to paragraph 4 of the Claimant’s Amended Statement of Claim and paragraph 1 of his written statement on oath, which are not controverted. The following facts are also not in dispute in this case: (a) That the Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the summons of 2nd Defendant to its office in Effurun, Delta State because of the kangaroo and unlawful disciplinary panel set by the 2nd Defendant. (b) At 8/2/2011, the Claimant was working at the project site for the 1st Defendant. (c) The Claimant was not booked back to the project site after the phantom disciplinary hearing. (d) The Claimant has not been paid by the 1st Defendant since the purported disciplinary hearing. The 2nd Defendant thus ensured that the contract between the Claimant and the 1st Defendant came to a very ignominable end for the Claimant. The 2nd Defendant utilized its position as the company that engaged the 1st Defendant to ensure that the Claimant’s contract was breached. Counsel submitted that Nigerian Courts have long recognized and applied the tort of inducement of breach of contract and awarded damages. In 1955, the West Africa Court of Appeal (WACA) recognized this tort in The British French Bank v. Owodunni (1956) N.S.C.C, 3. The tort was again recognized and applied by the Federal Supreme Court in Randle v. Nottidge (1956) N.S.C.C, 88. The court in that case held the appellant liable to the respondent for damages for inducing breach of contractual agreement. On whether a third party can be held liable for inducing breach of contract, the Court of Appeal, Lagos Division, per Rhodes Vivour, JCA (as he then was) in Nissan (Nig) Ltd v. Yoganathan (2010) 4 NWLR (Pt. 1183) 135 at pages 153 — 154, paras. H-A, held as follows: “Where the 3rd party knowingly and without justification facilitated or intentionally induced the breach of the contract between contracting parties, he is liable of inducing or procuring breach of contract. In a concurring judgment, Mukhtar, J.C.A,(as he then was) at page 158, paras. B-C, held: “It is an actionable wrong to flagrantly facilitate the breach of contractual obligation to the detriment of the appellant simply because the 2nd respondent was not privy to it. It is pertinent that the alleged deliberate violation of contractual term by the two respondents occasioned an actionable wrong, if proved or undenied, and the liability for the consequential damage suffered thereby is, of course joint. The basis for the imputation made in the statement of claim about the knowledge of the appellant’s contractual right and flagrant violation thereof by both respondents.” Counsel submitted that the averment in paragraph 15 of the 2nd Defendant’s Amended Statement of defence and the evidence in paragraph 16 of DW3 witness statement on oath that “...the 2nd Defendant is not privy to the structure of the discipline and grievance of the 1st defendant”, cannot stand in face of the testimony elicited from DW1 and DW3 under cross examination. Both witnesses (who are employees of the 2nd Defendant and members of the phantom disciplinary panel) admitted under cross examination that they were aware that the Claimant’s contractual rights and obligations are in writing. DW1 allegedly gave evidence for the 1st Defendant. The 2nd Defendant cannot recile from the knowledge of DW1 as it concerns the Claimant’s contractual rights and obligations. As submitted above, the 2nd defendant cannot also feign ignorance of Exhibits G and W4. That the Use of Threat and Intimidation by the 2nd Defendant to make the Claimant’s work environment uncomfortable for him. The tort of intimidation is an established tort and it comprehends not only threats of criminal or tortious acts, but threats of breaches of contract. See the House of Lords decision in Rookes v. Barnards & Ors (1964) AC 1129. Learned counsel submitted that employment of threat and intimidation to make work environment uncomfortable by official of the 2nd Defendant, further induced the breach of the Claimant’s contract. The Claimant pleaded in paragraph 10 of his Amended Reply to the 2nd Defendant’s Amended statement of defence that DW1, Dickson Eyemienbai threatened him severally to use his position to sack him. The Claimant gave evidence of this fact in paragraph 53 of his written statement on oath as follows: “The action of the 2nd Defendant in setting up the illegal panel and its position in the project induced the breach of my contract by the 1st Defendant. Dickson Ajobor Eyenmiendai (sic) threatened me several times that he would use his position to sack me and silence CCESSA”. The Claimant’s witness Fidelis Obanokhe also gave evidence on DWI’s threat on the Claimant in paragraph 7 of his written statement on oath. Both testimonies were not controverted as they were not cross-examined by the Counsel. The effect in law is trite. Counsel submitted therefore, that the 2nd Defendant intentionally without justification induced or procured the inducement of the Claimant’s contract. The 2nd Defendant acted deliberately and flagrantly facilitated the breach of the Claimant's contractual obligations to his colossal detriment. ISSUE THREE (3) If the issues above are answered in the affirmative, whether the Claimant is entitled to damages. It is submitted that where the tort of unlawful interference of contract as well as inducement of breach of contract is proved, the natural consequence is that damages will be awarded to the injured party. See Randle v. Nottidge (supra) and Nissan (Nig) Ltd v. Yoganathan (supra). The Claimant is claiming the sum of N20, 000, 000. 00 (Twenty Million Naira) general damages against the 2nd Defendant for the tort of inducement of breach of contract. Having established before the Court that the 2nd defendant interfered with and induced the breach of the Claimant’s contract, it is submitted he is entitled to damages. It is settled law that: “damages are pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of lump sum awarded at the time, unconditionally and generally”. See Agbanelo v. U.B.N. (2000)WRN 1 at page 16 paragraphs 10-15. Counsel stated that it is undisputed that the Claimant suffered damage as a result of the unlawful acts of the 2nd Defendant. From the pleadings and evidence in this case the following facts are undisputable, uncontroverted and are expressly or deemed admitted: (a) Prior to the setting up of the unlawful disciplinary panel on 8/2/2011 the Claimant had a smooth relationship with the 1st Defendant from October 16, 2007. Counsel referred the Court to paragraph 4 of the Claimant’s Amended Statement of Claim and paragraph 1 of the his written statement on oath, which are not controverted. (b) The Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the summon of 2nd Defendant to its office in Effurun, Delta State because of the kangaroo and unlawful disciplinary panel set by the 2nd Defendant. (c) At 8/2/2011, the Claimant was working at the project site for the 1st Defendant in furtherance of his obligation under Exhibit A. (d) The Claimant was not booked back to the project site after the phantom disciplinary hearing. (e) The Claimant has not been paid by the 1st Defendant since the purported illegal disciplinary hearing. (f) The unfounded and unproven criminal allegation of fraudulently procuring the signature (which must be proved beyond reasonable doubt) of workers who signed Exhibit D is damaging to the Claimant’s job prospect and also an attack on his person. Unproven sexually related immoral conducts were imputed on the Claimant. (The Court is referred to the alleged reasons given for the Claimant’s suspension stated in Exhibit F.) The above are some of the damage suffered by the Claimant as a result of the unlawful actions of the 2nd Defendant. It is clear from the facts pleaded and evidence led that the Claimant’s fixed term employment would have expired on December 25, 2011 (See Exhibit B). The Claimant would have fully earned his salary and entitlement for the period. The unlawful actions of the 2nd Defendant made it impossible for the Claimant to fulfil his obligations under Exhibits A and B. The natural consequence of the 2nd Defendant’s unlawful action is it not only prevented the Claimant from earning his salary and entitlements but also made him to carry a burden of humiliation and agony of being unceremoniously and ignominiously booted out of his employment. The Claimant having established that the 1st Defendant constructively dismissed the Claimant and that the dismissal was wrongful, it is abundantly clear that the actions of the 2nd Defendant led to the Claimant being constructively dismissed by the 1st Defendant. The 2nd Defendant cannot hide under the toga that 1st Defendant categorically pleaded and gave evidence in the affirmative that it was not induced in any manner by the 2nd Defendant.”, as submitted in paragraph 5.4 of the 2nd Defendant’s final written address. It does not lie in the mouth of the 1st Defendant to say that the 2nd Defendant (its cohort) did not induce it to breach its contract with the Claimant. That duty/responsibility falls on the Court to decide or infer it from the facts and evidence in this case. The object of awarding damages in tort is to put the Claimant in the position he would have been in if the tort had not been committed. Counsel referred to the case of Agbanelo v. U.B.N (supra) at page 16 para. 20 - 25. The principle in award of damages in tort is not the same as breach of contract. The Claim against the 2nd defendant is in TORT and not in CONTRACT. The principle applicable to award of damages in tort is different from contract. It follows therefore that the arguments and submissions in paragraph 5.5 to 5.8 of the 2nd defendant’s final written address is with respect totally misconceived and the authorities cited were cited out of context and are woefully inapplicable to the peculiar circumstances of this case. The 2nd Defendant cannot rely on contract to determine the damages to be awarded against it. That assuming without conceding that the principle applicable to damages in breach of employment contract is applicable to the 2nd defendant, it is submitted that the submissions and arguments as well as authorities cited in the aforementioned paragraphs of the 2nd defendant’s final written address are with respect also misconceived, misapplied and inapplicable to the facts and circumstances of this case. It is settled law that cases are determined by their peculiar facts. In Skye Bank Plc v. Akinpelu (supra), the Supreme Court stated this hallowed principle thus: “Each case must be considered on its own particular and peculiar facts or circumstances. No case is identical with the other or another. A decision is only an authority for what it decides and nothing else”. See also Mobil Prod. (Nig) Unltd v. Udo (supra). That the peculiar facts and circumstances of this case are different from the facts of the cases cited and relied upon by the 2nd Defendant’s Counsel and they are distinguishable. The first distinguishing factor in the case at hand can be found in Exhibit B. The Claimant’s contract is a contract for a fixed and ascertainable period. From Exhibit B, the contract is for one year and it commenced on 26/12/2010 and was billed to run till 25/12/2011. Secondly, the constructive dismissal of the Claimant by the 1st defendant is wrongful. On the measure of damages where a contract for a fixed term is wrongfully terminated, it was held in Mobil v. Asuah (2001) 30 WRN 25 at page 45 lines 30 —40 thus: “Where a contract of employment is for a specified period, and the employee was wrongfully dismissed or removed from office then the award of damages in the full amount of salary and allowances and other entitlements which the employee would have earned if the contract of service had run up full course is the maximum that is recoverable except that the amount maybe reduced slightly for being payable as a lump sum: (emphasis supplied) Counsel also referee to the cases of Cattaneo v. Da Rocha (1932) 11 NLR 57 and Garabedion v. Jarmakani (1961) 1 All NLR 177”. He continued that the argument in paragraph 5.7 of the 2nd defendant’s final written address that the Claimant’s employment contract does not have statutory flavour is of no moment. The cases of Onalaja v African Petroleum (1991) 7 NWLR (Pt. 206) 691, Shitta-Bey v. F.P..S.C (1981) 1 SC 40 and other sundry cases cited are not applicable to the facts of this case. In Garabedion v. Jamakani (1961) 1 All NLR 177 cited with approval in Mobil v. Asuah (supra), the contract was not one with statutory flavour. The contract in that case was for a fixed period with provision for termination and payment in lieu of notice. But on the facts of the case, the Court held that the Plaintiff was entitled to his full salary, allowances and entitlements which the employee would have earned if the contract had run up its full course. The Plaintiff’s employment contract in the suit was wrongfully terminated. He further submitted that it is not the law that an employee who is unlawfully or wrongfully dismissed is not entitled to more than what he should earn during the period of notice. The general principle of law admits to exception. Again, the peculiar facts and circumstances of each case should be given due consideration by the Court. See Skye Bank Plc v. Akinpelu (supra). In Mobil Prod. (Nig) Unltd v. Udo (supra), it was held at page 102 lines 40 — 5 as follows: “The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of the employment was as a result of the failure to give the required notice or as a result of alleged malpractice. If the wrongful termination 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 as a result of the latter then such determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice”. (emphasis supplied by counsel) He also cited: (1) Ezekiel v. Westminster Dredging Ltd. (2000) 9 NWLR (Pt.672) 248 at 262. (2) British Airways v. Makanjuola (1993) 8 NWLR (Pt.311) 276. That from the facts of this case the Claimant was alleged by the 1st and 2nd defendants to have fraudulently procured the signatures of some of the workers who signed Exhibit D. The Defendants did not lead any evidence in proof of this fact. The 2nd defendant failed to identify or call the worker that the Claimant allegedly fraudulently procured his signature to give evidence in this case. This allegation is criminal in nature and by the provision of section 135 of the Evidence Act, 2011 and settled authorities it must be proved beyond reasonable doubt. See WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. Four of the five workers, Felix Ejutemiden, Luck Zaudumunnu, Ogala Abraham and Oniko Godspower, stated in paragraph 14 of the Defendant’s Amended statement of defence, that the Claimant allegedly fraudulently procured their signatures on a blank page of Exhibit D, signed the first page of Exhibit D. DW1, DW2 and DW3 under cross examination testified that they were not present when Exhibit D was written/typed and/or signed. Again, the 1st Defendant did not deem it fit to call any of the listed workers to testify before this Honourable Court. By the provision of section 131(2) of the Evidence Act, 2011 the 2nd Defendant is saddled with the burden of proving the criminal allegation beyond reasonable doubt. That the Claimant denied the averment of fraudulent procurement of signatures and gave evidence that all the workers that signed Exhibit D did so in their free will and volition and that they are all adults. DW1 under cross-examination confirmed that all the workers of the 1st Defendant are adults. The Claimant was not cross-examined by the defendants Counsel. It follows therefore that this allegation was not proved. In Exhibit F, the Defendants stated that the Claimant’s indulged in indecent, sexual and immoral misconduct. One is at lost as to where these weighty allegations are anchored given the evidence before this Honourable Court. No specific fact was pleaded or evidence was led on sexual, indecent and immoral misconduct in spite of the mountainous weight they have on the Claimant’s character. The Claimant pleaded and gave evidence that prior to the setting up of the unlawful disciplinary panel, he had a smooth working relationship with the 1st defendant and that he had no disciplinary record. The 2nd Defendant did not controvert this pleading and evidence. The 1st Defendant who pleaded that the Claimant had been given several verbal and written warning did not lead evidence to establish date, time, circumstances and disciplinary steps taken against the Claimant. It is therefore submitted that the Claimant’s case fall within the principle stated in Mobil Prod. (Nig) Unltd v. Udo, British Airways v. Makanjuola and Ezekiel v. Westminster Dredging Ltd, that where the ground for wrongful dismissal “carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice”. He submitted therefore, that the unproven spurious devastating criminal, sexual, immoral misconduct, including allegations of deceit, intimidation and other mind bogging allegations made against the Claimant go far beyond malpractice. Therefore the Claimant's case comes under the exception to the general rule. Counsel to the 2nd defendant in paragraph 5.9 of its written address submitted as follows: “Exhibit F which was the recommendation of the Disciplinary Panel of the 2nd Defendant did not terminate the employment of the Claimant notwithstanding the gross misconduct found on him in the entire crisis of 27th January 2011. The Court is invited to read the attitude of the Claimant before the Panel as recorded in Exhibit F and the findings of the said Panel “. To counsel, the above submission is not borne out of the record of this Honourable Court. There is nowhere in Exhibit F where the Court may be invited to read the attitude of the Claimant before the panel. There is no record of the alleged attitude of the Claimant in Exhibit F. Exhibit F is a two paged document which notified the Claimant of the unlawful disciplinary measures taken against him. It is not any purported findings or recommendations made by the phantom disciplinary panel. The 2nd defendant pleaded the purported findings and recommendation of the illegal disciplinary panel but failed to tender it during trial. That it is settled law that Counsel’s address can never take the place of evidence that is not before the Court. In Citizens Int’l Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 332, the Court of Appeal held as follows: “In desperation, the present learned counsel for the appellant is seeking to raise viva voce, a defence which should have been contained in their affidavit. The genuineness of the account imputed to the second respondent in the garnishee bank cannot be impugned at this stage of the proceedings. The address of counsel in the appellant’s brief are mere passing remarks which in law, do not go into any issue... It should therefore only deal with evidence before the court and a mere mention of a matter in the course of that address is never a substitute for evidence that was available but never adduced. It cannot however well presented and persuasive take the place of credible evidence. (emphasis supplied by counsel.) The Court is also respectfully referred to the dictum of Katsina Alu, J.C.A (as he then was) in Ugorji v. Onwuka (1994) 4 NWLR (Pt. 337) 226, paragraphs B-C at 238 where he stated this principle of law succinctly thus: “It is right to point out here that as important as addresses may be, cases are decided on credible evidence. No amount of brilliance in an address can make up for lack of evidence to prove and establish or else disprove and demolish points on issue.” Counsel submitted that it is too late in the day for the 2nd Defendant to argue that the employment of the Claimant was never terminated as contained in paragraph 5.9 of the 2nd defendant’s written address. The doctrine of constructive dismissal is well developed and has been recognized and applied in our jurisdiction. He referred to Ilodibia v. N.C.C. Ltd (1997) 7 NWLR (Pt.512). The facts and circumstances of this case scream constructive dismissal. The Claimant pleaded and led evidence to show that he was constructively dismissed by the 1st Defendant. The unlawful suspension, demotion, the mandatory order that he should submit a letter of undertaking to be of good behaviour signed by a Junior workers’ union executives (the Claimant is a senior staff) are not within the agreed contractual disciplinary measure which the Claimant assented to. The aim of the steps taken against the Claimant was to humiliate, make the work environment uncomfortable for him and to force him out of his employment. The very foundation of Exhibit A was shattered and the mutual trust and confidence which is implied in every contract of employment between the employer and the employee was totally destroyed by the 1st Defendant. It is equally too late in the day for the 2nd defendant to claim that the Claimant's act amounts to gross misconduct as submitted in paragraph 5.9 of its final written address. The Claimant pleaded and gave evidence that M.S Kim directed himself and the other affected workers to channel their spill over claim to the 2nd Defendant. The Claimant was not cross examined on this testimony. The legal effect and consequence of this failure to cross examine on the part of Defendants’ Counsel is that, it is deemed admitted. Counsel also invited the Court to examine Exhibit D because reference was made to M.S Kim therein. Learned counsel stated that it must be reiterated that DW 1, DW2 and DW3 all stated under cross-examination that they were not present when the Claimant and other workers approached M.S Kim over the spillover issue and he directed to approach the 2nd defendant for redress. The 2nd defendant did not controvert the Claimant’s averment on this fact also. The 2nd Defendant is therefore estopped from saying that the Claimant’s act of sending Exhibit D to it amounts to gross misconduct. Counsel submitted that what is permitted cannot be unlawful, citing Michelin (Nig) Ltd. v. Alaribe (2010) All FWLR (Pt. 543) 1998 ratio 5. The 2nd Defendant’s Counsel in paragraph 5.10 of its final written address submitted that the Claimant refused to mitigate his damages. Again, this submission with respect is not borne out of record of the case. It is settled law that a party who intends to rely on the principle of mitigation of damages must plead and lead evidence on it. See Ibile v. P.D.S.S (2001) 25 WRN 104, wherein Sanusi, JCA stated the position of law at page 112 — 113 lines 40 — 5 as follows: “It is settled that a plaintiff is under a duty to mitigate his damages and any negligence by him in this respect is a bar to a claim. The question of what a plaintiff is to do to mitigate his damages is however a question of fact which the defendant has onus of proving by credible evidence to strictly prove that the plaintiff had actually failed to mitigate his loss. “(emphasis supplied by counsel) The 2nd defendant did not plead or raise mitigation of damages in its amended statement of defence and no evidence was given on it. The Claimant was not even cross-examined on this point. It is settled law that Counsel's address cannot take the place of evidence which is not before the Court. See Citizens Int’l Bank v. SCOA (Nig) Ltd (supra). That in determining the quantum of damages to be awarded in this case, it must be borne in mind always that the claim against the 2nd defendant is in TORT. Counsel submitted that the Court should take the following factors in consideration when assessing the amount of damages to be awarded: (a) The unbroken record of the Claimant’s employment with the 1st defendant before the phantom disciplinary panel of 8/2/2011. (b) The Claimant’s yearly entitlements and his legitimate expectation. (c) The victimization of the Claimant on grounds of union activities which his employment contract, the Labour Act and the Constitution allows. (d) The general conduct of 2nd Defendant. (e) Deliberate and flagrant disregard of Claimant’s contractual rights and obligations. (f) The effect that the alleged reasons given by the so called disciplinary panel for the actions taken against the Claimant would have on him. (g) Humiliation of the Claimant by the 2nd Defendant. (h) Unchallenged and unchallengeable computation of the Claimant’s salary and entitlements from February 2011 to December 2011. (i) The fact that the Claimant was unlawfully deprived of salary and entitlement since February 2011 (j) Deprivation of the Claimant’s legitimate expectation. (k) The Claimant’s loss of dignity of been employed. (1) The threat of sack of the Claimant by the 2nd defendant’s employee (DW1) Learned counsel stated that there is no dispute that the Claimant suffered and is still suffering pecuniary losses as a result of the inducement of the breach of his employment contract. There is unchallenged evidence that prior to the setting up of the unlawful disciplinary panel, the Claimant had unbroken record of employment with the 1st Defendant since 2007. The Claimant’s contract was renewed annually by the 1st Defendant. He referred the Court to paragraph 4 of the Claimant’s Amended statement of facts as well as paragraph 1 of the Claimant’s written statement on oath. The Claimant was paid all his entitlements and enjoyed the satisfaction and dignity of being employed. The Claimant pleaded his entitlement in paragraph 34 of his Amended Statement of facts and gave evidence thereon in paragraph 31 of his written statement on oath. The Claimant pleaded and led evidence on his legitimate expectation in paragraphs 33 of his Amended statement of facts and paragraph 31 of his written statement on oath. From the entire facts and circumstances of this case, the Claimant was specifically victimized on the basis of union activities by DW1, an employee of the 2nd Defendant. Again, counsel referred the Court to paragraph 10 of the Claimant's Amended Reply to the 2nd Defendant’s Amended statement of defence that DW1, Dickson Eyenmienbai threatened him severally that he would use his position to sack him. He referred the Court to paragraph 53 of the Claimant’s written statement on oath as well as paragraph 7 of the Claimant’s witness, Fidelis Obainoke, written statement on oath. From evidence elicited from DW1 during cross examination, there was a meeting already scheduled by the Federal Ministry of Labour and Productivity, at its office in Warri on 8/2/2011 to address the issues raised in Exhibit T by CCESSA national body against the 1st Defendant. It was no coincidence that the disciplinary panel hearing took place on 8/2/2011. DW1 knew that the Claimant was to be part of that meeting and he stated under cross — examination that he wrote a letter to the Warri office of the Federal Ministry of Labour and Productivity in respect of the meeting scheduled for 8/2/2011. It is very instructive, according to counsel that CCESSA national body made specific complaints against DWI in Exhibit P. Complaint of not being a staff of the 1st defendant and using his position in the 2nd Defendant to harass members especially the executives of CCESSA, the 1st Defendant’s branch. DW1 read out the complaints against him from Exhibit P in open court under cross examination. Harassment and victimization of CCESSA members in the defendant was the reason CCESSA national body wrote Exhibit T to the Federal Ministry of Labour and Productivity. That it is glaring that the 2nd Defendant deliberately ensured that the Claimant was constructively dismissed by the 1st Defendant. The 2nd Defendant knew that it had no contractual substratum to set up its so called 3 man disciplinary panel, it was also aware of the limit to which the Claimant may be disciplined as contained in his employment contract, but however, used its position to induce the breach of the Claimant’s contract in the most wicked and humiliating manner. The conduct of the 2nd Defendant can best be captured by the words of Orah, J.C.A in Steyr (Nig) Ltd. v. Gadzama (1995) 7 NWLR (Pt. 407) 305 at page 337 paragraph H, where he stated thus: “I consider the manner of the termination of the appointment of the respondents as grossly irresponsible, wrongful and a naked exhibition of power devoid of human milk and unwarranted humiliation of the respondents without reasonable cause.” That the Claimant was humiliated by the unlawful acts of the 2nd defendant is an understatement. Not only did Exhibit F impute sexual misconduct on the Claimant (see page 2 of Exhibit F, violation (13), but also the demotion of the Claimant from a senior to junior staff with the admitted attendant consequences averred to in paragraph 28 of the Claimant’s Amended Statement of facts. The 2nd Defendant also made criminal unproven allegation of fraudulent procurement of signatures against the Claimant. Imputation of fraud is a very serious offence which need to be pleaded with particulars and must be proved beyond reasonable doubt. He cited WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. Learned counsel submitted that from the facts of this case, the Claimant is not only entitled to damages but substantial damages. He urged the Court to take into consideration the entire facts of this case in the assessment of damages to be awarded in favour of the Claimant. ISSUE FOUR (4) Whether the Claimant is entitled to cost of this action against the 2nd defendant on indemnity basis. Learned counsel submitted that it is settled principle of law that cost follows event. That if the issues for determination above are resolved in favour of the Claimant, the Claimant is entitled to cost. The head of cost claimed is on indemnity basis i.e that the Claimant should be fully indemnified by the defendants for the cost of instituting and prosecuting this action. The Claimant will lead evidence after judgment is delivered on the cost he actually incurred in this case so as to be fully indemnified. This does not and will not amount to double compensation. Concluding all his submissions, learned claimant's counsel stated that from the averments in the pleadings filed in this suit and evidence led during trial coupled with the principles of law enunciated in the arguments and submission as well as authorities cited, it is his submission that the Claimant has discharged the burden of proof on the balance of probabilities to entitle him to all the reliefs sought. That from the totality of averments, documents tendered and evidence led in this matter, the Court is urged to find and hold that: i. The setting up of the Disciplinary Panel of 8/2/2011 by the 2nd Defendant made up of its employees and/or representatives or those authorized to act on its behalf, wherein the Claimant was suspended, demoted and placed on probation was an unlawful interference with the Claimant’s employment contract with the 1st Defendant. ii. The setting up of the disciplinary panel of 8/2/2011 by the 2nd Defendant, its proceedings and outcome induced the breach of Claimant’s employment contract with the 1st Defendant. iii. The action of the 2nd Defendant resulted in damages to the Claimant. iv. The Claimant is entitled to substantial damages from the 2nd defendant. v. The Claimant is entitled to cost against the defendants on indemnity basis. 1ST DEFENDANT REPLY ON POINTS OF LAW AGAINST CLAIMANT’S ADDRESS: 1ST POINT OF LAW The learned counsel for the 1st Defendant stated that the claimant cited the case of MOBIL PROD. (NIG.) UNLTD vs UDO (2008) 26 WRN 53 at Pane 102 Lines 40 — 50 and contended that when the termination of the employment of an employee carries with it some stigma on his character based on accusations of criminality, the employee shall be entitled to substantial damage far beyond his salary for the period of requisite Notice. The Claimant therefore contends that he is entitled to general damages (referring to paragraph 7 issue 4 of claimant’s address). Learned counsel for the 1st defendant then contended that the case of MOBIL PROD (NIG) UNLTD VS. UDO (Supra) does not support the position and reliefs sought by the claimant in the instant suit for the following reasons:— (a) The employment of the claimant was never terminated. It is not the case of the claimant that his employment was terminated rather, he wants the Court to declare that disciplinary actions taken against him amounts(sic) to constructive dismissal. That by the very nature of the suit before the court, the claimant concedes that his employment had not been terminated. This scenario is totally different from the MOBIL PROD. case where there was an express termination of employee’s contract and accusation of drunk driving which led to an auto accident. (b) The grounds upon which the claimant is asking the Court to declare that his employment has been constructively dismissed which is contained in his relief 11 has nothing to do with criminality neither does it allude to any sort of stigmatization of the claimant’s character. For avoidance of doubt, relief 2 of the claimants claim is hereto reproduced: A declaration that the claimant’s suspension for a period of four weeks without pay and demotion and placement on probation against the terms and conditions of his employment contract is wrong and amounts to constructive Dismissal”. (emphasis is learned counsel’s). It is therefore clear that the claimant’s case before the Court is that there has been a breach of Contract, which he wants the Court to declare amounts to constructive dismissal not that he was dismissed based on unproven accusations of criminality that stigma has been attached to his character. His grievance is that the disciplinary measures given to him is outside the maximum stipulated by his contract and not that his character has been stigmatized. That nowhere in the claimant’s entire statement of fact or statement on oath did he say his character has been stigmatized and defamed and that he is suffering from the effect of such but rather that there is distrust between both parties and he can no longer work for the 1st defendant. Counsel continued that the law is that all parties are bound by their pleadings and that the Court cannot make a case for a party outside his pleadings. He cited the case of SKYE BANK PLC V AKINPELU (2010) ALL F.W.L.R PART 526 Page 460 at 471 Paras A — G (especially at Pages 465 — 466 ratio, 15 and 16). That the claimant must also rely on the strength of his case and not that of the defendant. Criminality was never a factor in the claimant’s case. He referred to the case of BABALOLA Vs. RUFUS (2010) All F.W.L.R (PART 515) Pages 309 at 339 — 340 Para H — A (especially at Page 316 ratio 10). For the same reason given above the cases of EZEKIEL VS. WESTMIN1STER DREDGING LTD (2009) 9 NWLR (Pt 672) 248 AT 262 and BRITISH AIRWAYS Vs. MAKANJUOLA (1993) 8 NWLR (Pt 311) 276 cited by the claimant do not also apply, contended the 1st defendant’s counsel. 2ND POINT OF LAW That the claimant cited the provisions of Section 9(6) (a) (b) and (c) of the Labour Act, Cap LI, Laws of the Federation of Nigeria, 2004 and contends that an employee cannot be dismissed on the grounds of membership of a Trade Union and union activities. (referring to issue 4 Paragraph 7.7 Page 17 of Claimant’s address). The 1st defendant’s reply to this, is that, this contention is wrong and that Section 9(6) (a), (b), and (c) of the Labour Act do not apply for the same reasons and arguments contained in Paragraphs 1.1, 1.2, and 1.3 above as the claimant’s employment was not terminated neither is the Court being asked to declare that the claimant was constructively dismissed from his employment due to victimization as a result of his union activities. A claimant is bound by his reliefs before the Court and the Court cannot go outside these reliefs. 3RD POINT OF LAW That the claimant cited the case of MOBIL V. ASUAH (2001) 30 WRN 25 at Page 45 Lines 30 — 40 and contended that where a Contract of employment is for a specific period, and the employee was wrongfully dismissed or removed from office then (the award of damages is the full amount of salary and allowance and other entitlement which the employee would have earned if the Contract of service had run full course (referring to issue 3 Paragraph 6 Page 13 of Claimant's address). Learned counsel stated that the above is not the position of the law and the case of MOBIL vs ASUAH cannot apply to the instant suit for the following reasons: (a) The issue in the case of MOBIL V. ASUAH was that of Early Retirement and not one of wrongful termination and/or dismissal. The claimant’s claim in the Court of first instance which gave him judgment was for premature retirement. (b) Flowing from the above, it was never in evidence in the said suit that the claimant’s contract contained a right to terminate the contract of employment before the end of the term as is in the instant suit. This was probably so because the case of MOBIL Vs. ASUAH was not one of wrongful dismissal but of early retirement. (c) In any case, the Court of Appeal allowed the appeal of the employer (MOBIL) and set aside the judgment and damages awarded the claimant (ASUAH) by the trial Court. From the foregoing it is clear that despite being a Court of Appeal Judgment, the case of MOBIL Vs. ASUAH does not apply to the instant case and also does not support the position of the claimant in this suit. That the position of the law as it relates to damages for wrong termination/dismissal of employment was expressly stated by the Supreme Court in the case of IFETA V. S.P.D.C OF NIG LTD (2006) ALL F.W.L.R (PART 314) Page 305 at 323 — 324 Paras F — A (especially at Page 309 ratio 6) as follows: “In a claim for wrongful dismissal, (the measure of damages is prima facie the amount that (the Plaintiff would have earned had the employment continued according to contract.” Where however the defendant on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded apart from other entitlements should be limited to the amount which would have been earned by the plaintiff over the period of notice -------” (emphasis learned counsel’s.) It is therefore clear from the foregoing that whether the contract is for a fixed term or not when it contains a right to terminate, damages is limited to the amount the claimant would have earned during the period of Notice and no more. That with respect to this point of law, it is also the 1st defendant's reply that the case Of ILODIBIA VS. N.C.C. LTD (1997) 7 NWLR 174 at Page 202 Para D cited by the claimant does not support the damages sought for in reliefs III and IV of the complaint and statement of facts as the time of action of the claimant (time the action was flied in Court) is the 20th day of April 2011 and not December 25th 2011 as contained in relief II. 4TH POINT OF LAW That the claimant cited the case of C.E.C.T.C.S VS. IKOT [2001] 23 WRN 142 and 152 Paragraph 5 — 10 and contended that declining to cross—examine on items of special damages, the Defendant conceded the items of special damages. That the case of C.E.C.T.C.S VS. IKOT, supra, does not apply to the instant case as the facts of both suits are different. Firstly, there was Cross—examination on the issue of remuneration by the 1st defendant. Secondly, assuming without conceding that there was no cross- examination, facts were amply pleaded that the claimant is not entitled to both his special and general damages as he stopped work of his own volition. This fact was followed by ample evidence vide Paragraph 51 of the statement on oath of DICKSON APOBOR EYENMIENBAI that claimant is not entitled to special and general damages. There is therefore no question of conceding special damages the type of which is legally not awardable under the present circumstance. 2ND DEFENDANT’S REPLY ON POINTS OF LAW IN RESPONSE TO THE WRITTEN ADDRESS IN SUPPORT OF THE CLAIMANT’S CASE INTRODUCTION The 2nd Defendant’s counsel reacted on points of law to the final written address of the Claimant’s counsel as follows: Lawfulness of the Disciplinary Panel Counsel stated that the Claimant in his written address concluded that the 2nd Defendant misconceived the Claimant’s case. The position of the Claimant is to the effect that his claim is rooted in tort and not in contract. The Claimant thereafter stated his claim as the tort of interference of breach of contract. Learned 2nd defendant’s counsel reiterated the argument as contained in the 2nd Defendant’s final written address particularly as contained under the first issue therein. It is his submission that the principal elements of this tort are not present in the case of the Claimant and the peculiar fact of this suit. These two elements as stated by the Claimant are the ‘direct’ or ‘indirect’ interference and the ‘unlawful means’. He submitted that this is not applicable to the 2nd Defendant. The setting up of the Disciplinary Panel over an issue that occurred on its site location in ESCRAVOS sequel to the letter written by the Claimant and his cohorts coupled with the imminent danger posed to the business of the 2nd Defendant cannot be defined as ‘unlawful’ or ‘without justification’ That assuming without conceding that there was an interference, ‘A person inducing a breach of contract commits no actionable wrong if his conduct is justfied’, referring to Halsbury’s Laws of England 4th Ed (Reissue) para 690. The 2nd Defendant by pleadings and evidence established the fact that it is her responsibility and duty to maintain a conducive work environment at her site in ESCRAVOS and to arrest any imminent danger or crisis. The Claimant did not refute this fact. Where the inducement is an action in accordance with his lawful duty of the party, the said act cannot be actionable. He cited the case of PRITCH GGS 1980 1 All ER 294 at 326 per Goff LJ. Findings of the Disciplinary Panel Learned 2nd Defendant’s counsel submitted that the Claimant cannot read into the findings of the Panel what is not stated therein. Counsel stated that the 2nd Defendant’s pleadings and evidence on oath established this fact. The mere fact that the second page of Exhibit F carries the name of the 2nd Defendant does not make the 2nd Defendant the maker of the said document. The Claimant misrepresented the name of the 2nd Defendant for its logo in his submission. What is on the second page of the said exhibit F is the name of the 2nd Defendant and not logo. He submitted that it is elementary that the maker of a document is the executor(s) or the person(s) who signed the document and in what capacity. It is not the name on the heading of a letter that determines the maker particularly where there is nothing on the face of exhibit F and in the body of the exhibit wherein the 2nd Defendant was linked to the said letter. Exhibit F was not signed by any of the employees of the 2nd Defendant and was not signed in any representative capacity. This much is clear on the face of the said exhibit. Continuing counsel stated that the case of NISSAN (NIG) LTD. V. YOGANATHAN cited by the Claimant is not applicable to this case as the facts therein are not on all fours with the present suit. Moreso, the peculiarity of the relationship between the 1st and 2nd Defendants herein clearly makes this case inapplicable. The NISSAN case was decided on the employment of the Respondent after being informed of the non engagement agreement in any similar business for a period of time. The inducement therein was with knowledge, direct, and unlawful.3 .3 In the tort of unlawful interference, the Court must construe and give regard to the peculiar circumstances of each case, the rights of the parties, the nature of the contract and the fact of the interference. He cited the House of Lords decision in BRADFORD CORPORATION V PICKLES (1895) A.C 587. The Privy Council further held that wherever a right is infringed, and damage results, an action will lie unless the defendant can ‘show’ that he was exercising a right or discharging a duty. The case of the 2nd Defendant in setting up the Disciplinary Panel and the findings or Recommendations of the Panel was in the exercise of its right as the main or major contractor of the work site ESCRAVOS and in discharge of its duty as such. The Use of Threat and Intimidation by the 2nd Defendant to make the Claimant’s work environment uncomfortable for him. According to counsel, the Claimant had submitted in his written address as pleaded that DW1, Dickson Eyemienbai threatened him severally to use his position to sack him. The Claimant in his written address assumed, though wrongly, that once a witness is not cross- examined by Counsel on an issue, the testimony of the witness is uncontroverted. He then submitted that this is not the position in law. Once pleadings are exchanged by parties and facts are pleaded in any reply brief, issues are deemed joined on each of the facts and there is no right of reply to reply pleadings. Once issues are joined, the party with the burden of proof must establish his case unless the burden shifts. The burden of proof therefore is on the Claimant to establish the threat and intimidation of the 2nd Defendant. It is not all the acts or omissions of DW.1 by whatever stretch of imagination or argument that automatically becomes the act of the 2nd Defendant. The Claimant by mere pleading without evidence stated that DW1 ‘...threatened me several times that he would use his position to sack me and silence CCESSA’. This is mere assertion without more. No particulars were supplied by the Claimant, the means of threat — verbal or written was not given. There was nothing concrete both in pleadings and on evidence to controvert by the Defendant. He that asserts has the burden to proof and where he fails to establish the assertion, it is bound to fail. He cited the case of BHUTCHFUL V. BINEY & CO LTD. 1971 1 All NLR 268. Aside the bare and naked pleaded fact in the reply brief of the Claimant, the Court is left to speculate with respect to the mode, manner and the means of threat and intimidation of the 2nd Defendant on the Claimant. A court of law is not entitled to speculate with respect to matters on which credible evidence was not placed before the court to substantiate the assertion. He cited the case of AWAYE MOTORS CO. LTD. V. ADEWUNMI 1993 5 NWLR Pt. 292 Pg. 236 243. To further buttress this legal position and the onus to prove the said threat which is squarely on the Claimant, the Supreme Court in PATRICK ZHDEEH V. R.S.C.S.C 2007 3 CLRN 22 @ 37 line 4 to 6 thus ‘It is now firmly established that where an employee complains that his employment has been wrongly terminated, he has the onus, to prove how and in what manner’. The decision of Court of appeal in MOBIL V. ASUAH (supra) cited by the claimant is not the recent position of the Court. SPRING BANK PLC. V. BABATUNDE is the current position. The employment contract of the Respondent was not one with statutory flavor and the Court followed the Supreme Court position that the wages and salary cannot be awarded for services that were not rendered. There is no alleged malpractice traceable or established against the 2nd Defendant hence no substantial damages can be awarded against the 2nd Defendant. Lastly, the purported injury if any is not the direct cause of the act of the 2nd Defendant. There is no legal right of the Claimant to be employed at the site of the 2nd Defendant in ESCRAVOS hence no vested right was infringed by the 2nd Defendant. The 2nd Defendant equally has the vested right to determine and decide who is to be airlifted to ESCRAVOS, this we submit is not the contractual right of the Claimant. Damages whether substantial or not can only flow from a breach of a vested legal right. In a similar case of BRADFORD CORPORATION V. PICKLES 1895 A.C 587, the Court held thus: ‘The Respondent had no right to be employed, and no vested right was infringed. The person who discharged the respondent was the employer whose act, therefore and not the suggestion of the Appellant was the proximate cause of the damage. An act which does not amount to a legal injury cannot be actionable even if done with a bad intent’ Counsel submitted therefore that the Court of Appeal’s decision Mobil Prod. (Nig) Unltd. V. Udo (supra) cited by the Claimant is not applicable in this matter as the fact of the case is not in all fours with this particular suit. In Mobil Prod. Nig Unltd, it was the Nigerian Police Force who tried the Respondents and not Mobil. The Respondents were detailed to work at Mobil premises and site. The case would have been apt if it was Mobil who tried the Respondents. The Claimant though engaged by the 1st Respondent was seconded to work at the 2nd Defendant’s site and the control and administration of the work site lies absolutely with the 2nd Defendant. That the Claimant in paragraph 5.11 of his final written address submitted that he was alleged by the 1st and 2nd Defendants to have fraudulently procured the signatures of some of the workers who signed Exhibit D and further submitted that the Defendants did not lead any evidence in proof of this fact. Respectfully, this line of argument is total misrepresentation of the defence of the 2nd Defendant. There is nowhere in the defence of the 2nd Defendant either by its pleadings or evidence where the word ‘fraud’ was alleged. All that was pleaded by the 2nd Defendant was the findings of the Panel. He referred to paragraph 14 (i) of the 2nd Defendant’s Amended Statement of Defence. There was no criminality or any averment of criminality alleged by the 2nd Defendant. He urged the court to discountenance in its entirety the misrepresented submission of the Claimant’s Counsel. Conclusion Learned 2nd Defendant’s counsel therefore urged the Court to discountenance the said submission of the Claimant on substantial damages and the authorities cited therein. Where there is no breach of any conceivable legal right, there can be no damages. He then urged the Court to dismiss the claim of the Claimant against the 2nd Defendant. THE COURT’S DECISION I have carefully considered the processes, evidence of witnesses, and submissions’ of learned counsel to the parties in this matter. I shall deal with the case by making my findings and decisions on the claimant’s case against the 1st Defendant first and then that against the 2nd Defendant. In relation to the 1st Defendant, the main issue for determination is whether from the facts and circumstances of this case the Claimant has proved his case against the 1st Defendant to entitle him to the reliefs sought against it? In determining this issue I shall be guided by the issues, arguments and submissions of the learned counsel to the parties. The case of the Claimant against the 1st Defendant is that the 1st Defendant constructively dismissed him by the disciplinary measure meted against him. This disciplinary measure was sequel to the disciplinary proceeding conducted against the Claimant and other staff by a disciplinary panel constituted by the 2nd Defendant. The Claimant maintained that the disciplinary steps taken against him are unknown to his contract of employment and therefore a breach thereof, and he is entitled to the compensation he seeks. The 1st Defendant on the other hand is of the view that the relationship between it and the claimant is that of Master and Servant which is strictly regulated by the contract of employment of the claimant which has in fact incorporated collective agreements and worksite policies and rules of the 2nd Defendant into it, thereby making the Claimant bound by it. The effect of all this on the claimant, in the 1st Defendant’s view, is that the disciplinary measure of the 1st Defendant on the claimant which was based on the recommendation of the disciplinary panel of the 2nd Defendant was in fact proper and binding on the claimant. Above all that it was the claimant that breached his contract of employment with the 1st Defendant. However, the court has to enquire into all this by looking at the evidence and applying the law appropriately. The Contract of employment of the claimant has been placed before the court as exhibits A and B. While the claimant confined himself to the existence of these two documents as the basis of the contract of employment relationship between himself and the 1st Defendant, the 1st Defendant argued that Exhibits W3 and W4 form part of the that relationship. I have carefully examined the said documents, Exhibits A, B, W3 and W4 and from the contents of each of these documents, I have no difficulty in coming to the conclusion that they form the basis of the relationship between the claimant and the 1st defendant. This is because Exhibit A which is the contract of employment of the Claimant with the 1st defendant has made provision for the incorporation of other documents to the relationship between them. And as rightly submitted by the counsel for the 1st Defendant, Sections 9(c) and 11(a) of Exhibit A have incorporated exhibits W3 and W4 into the relationship between the claimant and the 1st defendant and I so find and hold. See the case of OGUEJIOFOR VS SIEMENS LTD [2008] ALL FWLR (PART 398) P. 378 @ 390 PARAS F-G. Thus the working relationship between the claimant and the 1st defendant was on the basis of the said four exhibits, Exhibits A, B, W3 and W4. Having determined that the next issue is that of whether the action of the 1st Defendant was taken in breach of the Claimant’s contract of employment by the 1st Defendant. The main position of the Claimant is that the disciplinary measure against him in the form of suspension without pay for four weeks, demotion, placement on probation, providing a written apology and an undertaking to be of good behavior, all embodied in Exhibit F, are in breach of the terms of his contract and as such the Court should declare same as “constructive dismissal”. The Claimant was equally of the view that the proceedings of the disciplinary panel run counter to the provisions of section 18 of Exhibit A, as it is the 1st Defendant that should discipline him and not the 2nd Defendant according to the grievance procedure. The parties in this matter have agreed that it was the issue of ‘spill over allowance’ that led to the problem between the Claimant and the defendants which resulted into this suit. In particular, the claimant, in his testimony as PW1 under cross-examination admitted this much when he said that “I agree that it was true that the issue of spill over allowance culminated into the commencement of this suit”. I have carefully examined the arguments and submissions of counsel, as well as the evidence before the Court, and it is clear that Exhibits A and W3 have provided for a grievance procedure which bind the Claimant and the 1st defendant. The question therefore is: has the claimant complied with that procedure in the pursuit of the non-payment of his spill over allowance? From the evidence before the Court, the Claimant simply stated that he, along with others, reported to Mr M. S. Kim of the 1st Defendant that they were not paid the spill over allowance, who then advised them, according to the Claimant, and they wrote Exhibit D. The Claimant has not shown through any satisfactory or credible evidence how the writing of Exhibit D is indeed in compliance with his obligation in relation to the grievance procedure stipulated under the provisions of Section 18 of Exhibit A and Article 34 (a), (b) and (c) of Exhibit W3. The position of the claimant that he reported to Mr M.S. Kim who advised them to write does not, in my humble view, amount to compliance with the express provisions of Section 18 of Exhibit A and Article 34 (a), (b) and (c) of Exhibit W3. In the circumstance therefore, by resorting to writing of Exhibit D instead of exhausting the dispute resolution process I find that the Claimant was in breach of the grievance procedure stipulated under the said Section 18 of Exhibit A and Article 34 (a), (b) and (c) of Exhibit W3, both of which documents the Court has earlier held governed the contract of employment of the claimant with the 1st Defendant. In this regard therefore, the next issue is the consequence of the claimant’s non-compliance with the terms of his contract of employment on the relationship between him and the 1st defendant. This I shall determine along with the issue raised and argued by the claimant and was responded to by the 1st defendant, that the disciplinary measure against him amounted to his constructive dismissal by the 1st defendant. After the making and issuing of exhibit D, the claimant was thereafter invited to appear before the disciplinary panel which he did. The findings of the said panel led to the making of exhibit F. Exhibit F has two pages. The first page is a document addressed to the claimant dated 23rd February, 2011 and titled “outcome of panel hearing” while the second page is a document titled “suspension notice” in the name of the claimant dated 14/02/2011. Upon being served with the said exhibit F the claimant came to court to challenge the disciplinary measure on the ground that it amounted to constructive dismissal and thus entitled him to special and general damages, amongst other reliefs. I have carefully considered the submissions and arguments of counsel to the parties on this issue of constructive dismissal of the claimant by the 1st defendant. The sum total of the claimant’s position is that the 1st defendant’s disciplinary measures against him as contained in exhibit F amount to constructive dismissal and this is because the punishments stipulated therein have not been stated anywhere in the claimant’s contract. The claimant clearly relied on two legal authorities to buttress his position, which are the views of the learned author, Professor Chianu, Employment Law, 2004, page 315 and the decision in Ilodibia vs NCC Ltd, supra, p.188. I have examined these authorities especially the case of Ilodibia vs NCC Ltd, supra, and it is clear to me that the basis for holding that the indefinite suspension of the appellant/plaintiff in the case was that there was no reason given to show that the indefinite suspension was a step in disciplinary proceedings and that he was not given hearing before he was put on half pay. This is clearly stated by the Supreme Court, per Wali, JSC, in the following words: The learned trial judge had rightly made a finding that the indefinite suspension of the appellant from duty as per Exhibit 4 by the respondent amounted to constructive dismissal from service. This was affirmed by the Court of Appeal where Uwaifo J.C.A. in the leading judgment stated: ‘If therefore, suspension was irregularly done, as it seems in the present case, there being no reason, given to show it was a step in disciplinary proceedings, and the plaintiff/appellant was given no hearing before he was put on half pay, then, he was entitled to acquiesce in it, or seek to have the suspension set aside, or take such steps to show that he was not prepared to regard the contract as still subsisting.’ (Emphasis mine). The underlined portion of the Supreme Court’s decision above shows that the basis for the Court accepting that the indefinite suspension indeed amounted to constructive dismissal was because of the absence of anything to show that the indefinite suspension was a step taken in a disciplinary proceeding and the putting of the plaintiff/appellant on half pay was preceded by fair hearing. Thus this authority, in my humble view, does not support the case of the claimant in this case because the notice given to him (Exhibit F) was the outcome of a disciplinary proceeding which clearly distinguishes his case from that of Ilodibia vs NCC Ltd, supra. In addition, the series of events preceding the making and service on the claimant of Exhibit F, namely, the non-payment of the spill over allowance, the writing of Exhibit D, the constitution of the disciplinary panel and its report all point to a different and distinct set of circumstances from the scenario in the case of Ilodibia vs NCC Ltd. In the circumstance therefore, I am not inclined to accept the claimant’s submission that he has been constructively dismissed by the 1st defendant because of the disciplinary measure against him. However, there is the submission of the claimant that the disciplinary measures were not contained in his contract of employment and particularly emphasized by him is the fact that the suspension without pay was for a period more than that stipulated by his contract of employment. While the claimant is right that the period of suspension is higher than that stipulated, I do not see how that can be said to be a basis for construing same as amounting to constructive dismissal as in Ilodibia’s case, supra, or even a termination of the appointment. This is because the suspension without pay was for a definite period in this case and the contract of employment between the parties does recognize the fact that suspension without pay of an employee is a possible disciplinary measure. See Section 18 of Exhibit A, Article 30.1.3 of Exhibit H, Article 37 of Exhibit W3 and page 2 of Exhibit W4. Furthermore, demotion as a disciplinary measure has been specified on page 2 of Exhibit W4. In the context of the law also, suspension of an employee for a definite period, as in the instant case, cannot be said to amount to termination or dismissal. See the case of B. O. Longe vs F.B.N. Plc (2010) 6 NWLR (Pt. 1189) p.1 at p. 60. In the final analysis therefore, when the claimant failed to accept the disciplinary measures against him and did not further turn up for work, apart from the time he first turned up on 7th February, 2011 and was told that he had been booked out, the only irresistible conclusion to be drawn is that claimant has stopped coming to work. I therefore have no difficulty in accepting the submission of the 1st defendant that the claimant had chosen to terminate his own employment in accordance with the provisions of paragraph 18(f) of Exhibit A. It is necessary to point out that the claimant in this case chose not to go back to work but rather challenge what he believed was injustice meted to him by the 1st defendant through its disciplinary action against him. I have also considered the submissions of the claimant and the evidence adduced by him to the effect that the disciplinary measure against him was a kind of victimization against him for the position he held in the senior staff union, CCESSA. I have also examined the submissions of the 1st defendant on this issue and I am of the view that the claimant has not made enough case to satisfy the court that the action taken against him had anything to do with his activities as a member or secretary of the said trade union. This court has found that the events that led to the making of exhibit D and eventually exhibit F, were all linked to the non-payment of the spill over allowance and the claimant has not shown any evidence about how his position as member or secretary of the union have directly or indirectly led to the disciplinary measure taken against him. Furthermore, as rightly argued in my view, by the 1st defendant’s counsel, it is not for this Court, a trial court, to ascribe any motive in the decision taken by an employer on the termination of an employee’s contract of employment. See the case of Rivers Vegetable Oil Company Ltd vs Egukole (2010) All FWLR (Pt. 544) page 111 at 124-125 where the Court of Appeal held that: It is not the place of a trial court to ascribe motives in the determination of a contract of employment. Turning to the case of the claimant against the 2nd defendant, the claimant has set out three reliefs against the 2nd defendant in his amended statement of claim, i.e., relief numbers VI, VII, and VIII, earlier reproduced in this judgment. I have carefully considered the processes, evidence, arguments and submissions of the respective learned counsel to the parties in this matter and three issues stand for determination, namely, 1. Whether or not the 2nd defendant unlawfully interfered with the employment of the claimant with the 1st defendant through the Recommendations of the disciplinary panel? 2. Whether or not the 2nd defendant induced the 1st defendant to breach its contract of employment with the claimant? 3. Whether or not the 2nd defendant is liable in damages to the claimant for both unlawful interference with and for inducement to breach the contract of employment between the 1st defendant and the claimant following the Recommendations of the disciplinary panel. On the first issue, the case of the claimant against the 2nd defendant is that the setting up of the disciplinary panel on 8/2/2011 which had membership from the 2nd defendant’s employees or officials and the disciplinary actions taken against him as evidenced in Exhibit F amounted to unlawful interference with his contractual agreement with the 1st defendant and subsequently the said interference resulted in the inducement of the 1st defendant to breach the said contract of employment of the claimant with the 1st defendant. In its reaction the 2nd defendant made its case that there was no unlawful interference from it in the relationship between the 1st defendant and the claimant. The 2nd defendant relied on the fact that there is a contractual relationship between it and the 1st defendant and that the contract of employment of the claimant, Exhibit A has made this position known to the claimant by expressly referring to the 2nd defendant as the client of the 2nd defendant. See Sections 1(a), 9, and 11 (a) of Exhibit A, the contract of employment of the Claimant with the 1st defendant. I have carefully considered the evidence, arguments and submissions of the parties. In the context of the issue at hand, it is clear to me looking at the facts of the case all the parties are agreed that the non-payment of the spill over allowance led the claimant to, along with others, write Exhibit D. This Exhibit D is a letter addressed to “the Deputy Resident Manager, Contractor Representative, Southern Gas Constructors Limited” and other eight managers of various grades. Southern Gas Constructors Limited is the 2nd defendant in this case. The letter also has the caption “DAEWOO AT IT AGAIN-INJUSTICE MELTED ON WORKERS” and is signed by 62 persons. The central point of the 2nd defendant is that this Exhibit D which has been addressed to the 2nd defendant was a clear invitation to it (the 2nd defendant) to look into the problem and work towards its resolution. Furthermore, when the disciplinary panel was set up by the 2nd defendant the claimant appeared before it. From the totality of the actions of the claimant in the making of Exhibit D and his appearance before the disciplinary panel, it is not difficult to come to the conclusion that indeed the 2nd defendant was in fact invited to intervene and this apparently is for no other reason than that the claimant and all those who participated in the making of Exhibit D did know or at least believed that the 2nd Defendant had the legal duty or obligation to so intervene. The question therefore is whether the claimant should rightly be heard to complain? I do not think so as he held the belief that the 2nd defendant possessed the power and authority to decide. Furthermore, the claimant anchored his position that the 2nd defendant interfered with the contractual relationship between him and the 1st defendant on the legal doctrine of interference under the law of tort, relying on Chapter 18 of Winfield & Jolowicz on Tort, 15th Edition by W.V.H. Rogers, London Sweet & Maxwell Ltd 1998. As rightly pointed out by the claimant, the operative phrase in the definition of the tort is ‘third party’? Having considered the submissions of the claimant and that of the 2nd defendant on the issue, I am unable to agree with the claimant that the 2nd defendant should be taken to be a third party for the purposes of establishing the tort of unlawful interference into the contract between the 1st defendant and the claimant by the 2nd defendant. This is because as I have earlier pointed out in this judgment, the claimant himself has accepted the fact that the 2nd defendant was a client of the 1st defendant who employed him and in fact that the work of the 1st defendant was entirely dependent on extent or availability of the work of the 2nd defendant. This much is discernible from the provisions of Section 6 of Exhibit A, the contract of employment of the Claimant. I therefore hold that the first issue is resolved against the claimant. On the second issue which is whether the 2nd defendant induced the 1st defendant to breach the contract of employment of the claimant with it, I have carefully considered all the evidence, arguments and submissions of the parties on the issue. Here the claimant has anchored his case on the basis of the events that followed the publication of Exhibit F, the outcome of the disciplinary panel and the disciplinary measures. Essentially he relied on his booking out of the worksite on 8/2/2011; the failure to have him booked back to work after the disciplinary hearing and the non-payment of his emoluments since the disciplinary hearing. With the facts and circumstances of this case, and particularly the earlier reasoning in the consideration of the first issue above that the 1st and 2nd defendants are interwoven in terms of the nature of the performance of the contract of employment of the claimant with the 1st defendant and the inability of the court to agree with the claimant over the making of his case for unlawful interference, I do not see how the 2nd defendant can be said to have induced the 1st defendant to breach the contract between it and the claimant. It perhaps is necessary to again point out that by its content, Exhibit F was not a letter of termination or dismissal of the claimant as it simply stipulated the disciplinary measures which were suspension without pay for four weeks, demotion one step on probation, apology and undertaking to be of good behavior. As I earlier found out in this case, it was the claimant who elected to come to court instead of staying on to serve his disciplinary measures in Exhibit F. It is thus difficult to see how the case of inducement could be said to have been made out against the 2nd defendant in this case. The second issue too is accordingly hereby resolved in favour of the 2nd defendant. On the third issue which is whether the 2nd defendant is liable in damages for unlawful interference with and inducement for breach of the contract of employment between the claimant and the 1st defendant, the basis for damages is generally hinged on the finding of liability of the defendant. It is trite that liability shall arise where the claimant has succeeded in his case against the defendant. In the instant case, with the finding that the 2nd defendant did not unlawfully interfere with or induced the breach of the contract of employment of the claimant with the 1st defendant, the question of liability in damages of the 2nd defendant cannot therefore arise and I so hold. Finally in the circumstance therefore and for all the reasons given, I hereby hold that the suit of the claimant against each of the 1st and 2nd defendants fails and it is hereby dismissed accordingly. I also hereby award costs of thirty thousand naira (N30,000.00) to each of the defendants against the claimant. Judgment is entered accordingly. Hon. Justice A. Ibrahim Presiding Judge.