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This is a transferred matter from the High Court of Enugu State pursuant to an order of that court dated 1st day of November 2011. The Claimant commenced the suit by a writ of summons dated and filed on the 15th day of January 2009. In the Statement of Claim accompanying the writ of Summons the claimant claimed the following reliefs against the Defendant: 1. N8,520.00 being the one month commission/salary in lieu of notice; 2. N255,600.00 being special damages and compensation for the outstanding 2 ½ years (30 months) at the rate of 8, 520.00 per month. 3. N100,000.00 being general damages for breach of contract and loss of good will. The Writ of Summons was accompanied with list of claimant’s witnesses, the sworn statement on oath of the claimant’s witnesses, the list of documents to be relied upon at trial and copies of the documents. The Defendant filed a Statement of Defence dated the 7th day of May, 2009. The said Statement of Defence had accompanying it, a list of witnesses, a witness statement on oath, copies of documents to be relied upon at trial. The Claimant filed a reply to the Statement of Defence of the Defendant which was dated 27th day of May 2009 but filed on 28th day of May 2009. The Claimant also filed additional statement on oath of the claimant’s witness. The case went to trial on 20th March 2012 and the Claimant called two witnesses while the Defendant testified in her defence. A total of nine (9) exhibits were tendered and admitted by the Court. These are Exhibits A, B, C, D, E, F, G, H and J. At the close of the case for the parties, their counsel filed final written addresses which they adopted in court. The defendant’s written address is dated and filed on the 5th day of July 2012 while the claimant’s written address is dated and filed on the 8th of August 2012. The defendant’s counsel filed his reply on points of law dated 15th day of August 2012 on the 17th day of August 2012. Learned counsel to the parties adopted their respective written addresses on the 7th day of November, 2012. In his written address, learned counsel for the Defendant formulated three issues for the determination of the court. These are: 1. Whether the status of the claimant was properly or at all established through evidence as to entitle it to commence the suit and claim the reliefs sought? 2. Whether Exhibit C could be relied on to sustain the claim for damages/compensation and loss of good will? 3. Whether there was credible and sufficient proof to entitle the Claimant to the claims/Reliefs? Arguing the first issue, the learned defendants counsel submitted that by its statement of defence, paragraphs 2 and 7, it has cast doubts over the status of the claimant, to the effect that it is not an incorporated company and hence lacked the legal status to bring this action. That the claimant did not place before the court its certificate of incorporation or registration which would have entitled it sue and maintain its action against the defendant. learned counsel relied on the cases of Bank of Baroda vs Iyalabani Company Limited (2002) FWLR (Pt. 124) 494 per Ejiwunmi JSC and Niger Insurance vs Chase Insurance Brokers Ltd (2004) All FWLR (Pt. 239) 861. On the second issue, learned counsel submitted that contract between the parties must be allowed to abide them. Clear words in a document should not be altered or added to unilaterally. That application for appointment was made by the defendant on 4th September, 2006; offer of appointment by the claimant was made on 8th September, 2006; the offer letter spelt out all the terms and conditions of the appointment. That the document headed Acceptance of job offer was prototyped, and made to be filled by the defendant. It was dated 12th September, 2006. According to counsel, it appears implausible being the averment in the statement of claim and evidence of CW1 that it was upon observing the inexperience of the defendant that the terms of contract was renegotiated by the claimant. It would appear that the issue of inserting a number of years was unilaterally injected by the Claimant. That besides, the document of 12/9/06 does not bear out any statement as to experience or otherwise of the defendant. It was purportedly made in response to the offer of appointment, and just 4 days after the offer of appointment, and on the same date the defendant resumed work. Counsel then asked the question: when was the defendant’s experience tested and when did the renegotiation take place? Also aside that, counsel continued, would the subsequent Acceptance letter of 12/9/2006 supersede the letter of offer of 8/9/2006; or does the acceptance constitute a new offer/term of appointment? Above all, does the Acceptance letter not negate the principle of fairness and reasonableness in contract, more so when the parties are unequal! Counsel then conceded that parties are bound by the terms agreed upon, but principles have been evolved to enable the court look at the contract documents to see if there was duress, unfairness, bad faith and such like attenuating concepts aimed at protecting a weaker or more inferior party, especially the employee. That in his scholarly book, Employment Law, 2004 Professor Emeka Chianu opined thus: …while most Judges advocate that freedom of contract promotes stability, certainty and predictability that are necessary for commercial growth, not a few realize that they are under a duty, as Cardozo says, “within the limits of their power of innovation to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience”. pp. 23-24. The learned author went on, according to counsel, to cite the case of Carter vs Boehm (1766) 97 where Lord Mansfield stated: The governing principle is applicable to all contracts and dealings. Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing the contrary. But either party may be innocently silent as to grounds open to both to exercise their judgment upon. Learned counsel submitted that the insertion of the duration of service of the defendant after she had been offered appointment and on a document made the same date she was to resume work was oppressive, capricious and unjust. That the said document has an implied duress contained therein. He then urged the court to examine the document of 12/9/06 along the line of his submission above. Continuing, counsel stated that a second point is the fact that the contract of service between the claimant and the defendant was on commission basis. In other words the remuneration paid to the defendant was determined by what the defendant worked on a particular day and a commission paid her. That she is not a salaried worker. And therefore, the normal one month’s notice in lieu of salary or payment in lieu of notice would not and does not apply in the instant case. That the last commission paid her was for March 2007, which she worked for. Furthermore, she tendered her letter of resignation in April, she did not work, and she did not claim any commission for that month. Counsel referred to paragraphs 7 and 8 of the Statement of Defence and the statement on oath of the defendant. Counsel also referred to paragraph 16 of the statement of defence wherein the defendant averred: “The defendant shall rely on all legal and equitable defence based on the law and best practices in employment of labour in Nigeria”. Counsel added on this point that this contract is not clothed with any atom of fairness. That this argument is anchored on the work “note book” tendered and marked Exhibit J which the defendant kept on the mandate of the Claimant. The defendant worked “over time” and was paid peanuts for that. Over time was craftily stated on the instruction of the claimant on the work note book as against “night work” which it connotes. That in the course of re-examination of the defendant this was clarified thus”: Q: You in your notebook which counsel to claimant just referred to in cross-examination that you did overtime, which you were paid for. Explain to court what you mean by over-time, i.e., From when to when? Answer: It is night work, from 6pm-6am in the morning. Counsel urged the court to bear the precepts of good reasoning, fairness and good conscience in mind while applying the ennobling principle that parties are bound by the terms of their contract and hold that this amounts to exploitation and modern day slavery not known or acceptable to labour law and practice. On issue number 3 counsel stated that relief nos. 2 and 3 of the claimant seem to be predicated on the fact that the defendant was under obligation to stay put with the claimant for 4 years, but that she reneged on that as contained in Exhibit C (Acceptance Letter of 12/9/06) by tendering her letter of resignation and indeed resigning after 1½ years. That Relief No (b) was lumped together to have crystallized from special damages and compensation for a sum which approximate to what the defendant ought to have been receiving per month were she to remain in employment for the outstanding 2½ years with the Claimant. Counsel then asked how the Claimant set the tone for this leg of the claim, and he then referred to paragraphs 6, 7 and 8 of the Statement of Claim. He also referred to the evidence on oath of the PWI and PW2. He further asked, how did the defendant respond? And he referred to her paragraphs, 5, 6, 7, 8, and 16. Furthermore, Counsel continued that in the main, the Claimant alleged that the defendant was employed as seamstress as per exhibit B, but shortly after, it was discovered that she did not have the requisite skill and experience, hence her employment was renegotiated, culminating in Exhibit C (Letter of Acceptance of 12/9/06). To counsel, their argument on Issue No 2 above suffices herein, but he added that in her defence, the defendant categorically denied all the averments and suggestion that she was employed as a trainee or that she was ever a trainee on whom certain sum was to be expended to couch her. That of particular note are paragraphs 7 and 8 of the Statement Defence, reproduced as follows: 7. The defendant states in answer to paragraph 7 that the said Onyinye Emeka Ude told her that as a matter of routine, she used to subject her trainees to a 4 year period of tutelage to act as a safe guard for impromptu cessation of work in the Claimant company. 8. Furthermore, the defendant made it clear that she was already employed as a seamstress since June 2006, and not as a trainee, but the said Onyinye Emeka Ude assured her that signing the document would not affect her status since she (Onyinye) was already satisfied with her (defendant) previous job experience, and which led to her (defendant) employment as a seamstress not as a trainee. So where did the Claimant get the basis for its claim for compensation for the outstanding 2 1/2 years (30 months) ...., learned counsel asked? Aside that, since the remuneration of the defendant was hinged on commission basis or derivable from the volume of work she did, would it be reasonable to expect that even if she were to stay on beyond when she resigned, the remuneration would still be at N8,520.00 per month? (He referred to paragraph 10 of the Statement of the Defence). That above all, it is trite law that claim for special damages must bear out in details and with specificity, what heads of claim amount to special damages and same proved specifically, citing the case of ADIM v NIGERIAN BOTTLING CO. LTD. & Anor (2010) All FWLR pt 527 @ 690, where the Supreme Court held, per MUSDAPHER JSC (as he then was) that: A special damage is such a loss that will not normally be presumed as the natural consequence of the defendant’s fault, but which depends on the special circumstances of the case and therefore, it must be specifically pleaded and strictly proved by evidence. It consists of out of pocket expenses and loss of earning incurred down to the date of trial, and is generally capable of substantially exact calculation… Counsel also cited G. CHITEX INDUSTRIES LTD v OCEANIC BANK INTERNATIONAL (Nig) Ltd. (2005) All FWLR pt 276 @ 610 and KOPEK CONSTRUCTION LTD. v Eleisola (2010) All FWLR pt 519 @ 1035. Continuing counsel stated that on the relief on general damages, the Claimant alleged breach of contract and loss of goodwill. The law provides that General damages are the kind of damages which the law presumes to flow from the wrong complained of. They are damages which the jury may give when the judge cannot point any measure by which they are to be assessed except on opinion and judgment of a reasonable man. He cited ELF PETROLEUM NIG. LTD v UMAH (2006) All FWLR pt 343 p. 1765 ratio 6 and also UBN PLC v IKWE (2000)2 NWLR (pt 646)223. That the Claimant attempted to prove breach of contract by relying on Exhibit C, i.e., letter of Acceptance, wherein it injected terms and conditions which run foul of the labour Law and general principles of employment which prescribe that unfair, unreasonable and capricious conditions/terms should not be forced or foisted on an employee. That the Claimant also put forward PW2, who is a man and claimed that the resignation of the defendant made him not keep an appointment! Would a reasonable man believe the evidence of PW2, who even testified during cross-examination of having a long standing relationship of 15 years with the claimant?, counsel asked. The said claim was debunked by the defendant who asserted and maintained that she sewed only female clothes and he referred to paragraph 11 of the Statement of Defence, her evidence on oath and Exhibit J, (the Note book on the daily work). In the face of such defence, oral and documentary evidence, it is hard to believe the evidence of PW2, counsel submitted. Besides, what used to be the overall volume of work done by the defendant vis-à-vis the requests by customers of the claimant for sewing of cloths? What is the level of clientele of the claimant; would it be justifiable to claim N100,000.00 just for the “disappointment” suffered by a g single customer, assuming he was? All these and more reasonable questions would constitute a draw back on the claims of the Claimant for N 100,000.00 general damages for loss of goodwill. On the whole, counsel submitted that the Claimant has not been able to prove its claim and he urged the court not to award it the claim. Finally he urged that the suit be dismissed as lacking in merit and actuated by greed, oppressive and machiavellian tendencies of one Emeka Ude, who never had anything to do with or in the employment of the defendant by one Onyinye Emeka Ude. He referred to paragraphs 12, 13 and 14 of the Statement of Defence and evidence on oath of the defendant. In his written final address, learned counsel for the Claimant responded to the issues raised by the defendant’s counsel in her written address dated 5th day of July, 2012. He submitted that the Defendant’s arguments are unfounded and misleading. According to claimant’s counsel, in her issue No. 1, the defendant through her counsel questioned the status of the claimant. That the claimant’s reply is simple- the age long law is that parties are bound by their pleadings. The Supreme Court in Ramonu Atolagbe v. Korede Oleayemi Shorun (1985) 4 S.C. (pt. 1) 250 at 262, per Coker J.S.C. held: That the primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called to adjudicate between them. That the claimant, in its paragraph 1 of the statement of claim averred that: “It is a limited liability Company registered in Nigeria with its Head Office at No. 72 Owerri Road, Asata Enugu within the jurisdiction of the court”. The defendant did not deny this fact throughout all the paragraphs of her statement of defence but states in her paragraph 2 thus: The defendant admits paragraphs 2,3,4,5 of the statement of claim, and states that she is not in a position to admit or deny paragraph 1, except to the extent that the Claimant operates its business at 72 Owerri Road, Asata, Enugu. This form of pleading that “ the defendant is not in a position to admit or deny” an allegation in the statement of claim came under the scrutiny of the Supreme Court in the cases of Messrs Lewis Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 167; Akintola v. Solano (1986) NWLR 598 and a host of other cases. The Supreme Court in the above cases held: that such a plea amounts to insufficient denial and ought not to be used in traversing essential material allegations, and that where a statement of defence avers that it is not in a position to deny or admit, it is deemed not to have denied the averment in the statement of claim and therefore that averment in the statement of claim will be deemed not be in issue. To counsel, the plea of the claimant in paragraph 1 of its statement of claim and that of the defendant in her paragraph 2 of her defence in the present case are the same with that of the parties in Lewis Peat (N.R.L) Ltd case supra. He submitted therefore that there was no denial or challenge of the claimant company’s status by the defendant to warrant any proof by the Claimant. The authorities cited by the defence counsel are totally irrelevant and should be discountenanced by the court. On the second issue, counsel stated that the defendant in issue number 2 alleges unilateralism, unfairness, reasonableness, inequality, duress, bad faith, oppressiveness, capricious and unjust and so on and so fort in the contract between the claimant company and the defendant. He submitted that there are no facts in the defendant’s defence to substantiate those allegations. They are all in the figment of the mind of counsel for the defendant. Parties are bound by their pleadings. However, counsel continued that, assuming, without conceding that there was any of such allegations as alleged by counsel, the defendant having worked with the claimant company for 1 1/2 years without alleging any of them is deemed to have waived her right to do so now. The provisions of sections 171, 172, 176, 177, 178 and 180 of Contract Law, Cap. 26, Laws of Enugu State 2004 are very clear on those issues. Section 171 of the Law provides: Where a representee, having discovered the misrepresentation either expressly declares his intention to proceed with the contract, or does some act inconsistent with an intention to rescind the contract, he shall not thereafter have the right to rescind the contract. Section 172 provides: Where a representee, having discovered the misrepresentation, fails to exercise his right to rescind the contract within a reasonable time, he shall be deemed to have affirmed the contract and shall be bound by it. What amounts to a reasonable time shall be decided by the court having regard to the nature of contract and the circumstance of the case. Section 176 provides: If a party to a contract entered into it under duress and takes no steps to set aside the transaction after the duress has ceased, or so voluntarily acted under it with a full knowledge of all the circumstances he shall be deemed to have affirmed the contract and shall not thereafter exercise his right to rescind the contract. Section 178 of the Law provides: If a party to a transaction entered into under undue influence expressly affirms the transaction after the influence has ceased, or fails to take steps to set aside the transaction within a reasonable time, he will not thereafter be allowed to set aside the transaction. Counsel submitted that all the allegations alleged in issue No 2, of the defendant’s written address were never raised in her pleading; and even where raised, cannot be sustained having spent more than one and half years with the claimant company and hence, deemed to have waived them. That looking at the letter of resignation of the defendant dated 10th April 2008 - Exhibit E, there is nowhere in the letter the defendant alleged any fault on the part of the claimant. She only alleged having problem with her family. This was of cause, rejected by the claimant in its exhibits F and G as an afterthought and unfounded. Finally, counsel submitted that there is no counter-claim by the defendant praying for the rescission of her contract with the claimant on any of the alleged grounds. He urged the court to discountenance all those allegations. Counsel continued that the defendant, in her written address, also raised the issue of night work. This was also raised in paragraph 12 of her defence. The claimant vehemently denied this in paragraphs 3, 4, 5, 6 and 7 of the reply to the statement of defence. The defendant, however, in her evidence-in-chief contradicted this averment on night work by her exhibit J which clearly showed that it was overtime, rather than night work that the defendant did in the claimant company. This overtime, from exhibit J was occasional, and the defendant duly paid for them as admitted by her during cross-examination. Exhibit J was solely prepared and kept by the defendant. The exhibit clearly states the work of the defendant with the claimant. There is no doubt that the night work allegation in the pleading of the defendant is an afterthought and should be discountenanced by the court. On the third issue, on whether the claimant has proved and entitled to its claims before the court, counsel stated that the answer is in the affirmative. He then submitted that the claimant has established, both by its pleading and evidence before the court of the contract and its entitlement to special and general damages as claimed. That Section 6 of the Contract Law, Cap. 26, Laws of Enugu State 2004 clearly states that there is no formal requirement of contract and that a contract can be made orally or in writing. Contract between parties can be ascertained from a document or series of correspondences between the parties. Exhibits A, B, and C clearly satisfy all the conditions of a contract. Apart from satisfying other conditions, the subject matter of the contract is shown to be “the employment of the defendant in the claimant company”. Exhibit A is the application of the defendant to the claimant company; exhibit B is the offer of the appointment and the terms; while exhibit C is clear acceptance of all the terms agreed upon by the parties. That paragraphs 2 and 3 of exhibit C, that is, “the 4 year minimum” and “abiding by the rules and regulations of the company” amount to promise or undertaking by the defendant while indicating preparedness to perform the contract and hence cannot be construed as a variation to the terms of offer or as a reservation. Paragraphs 6 and 7 of the statement of claim and paragraphs 4, 5 and 6 of the sworn statement on oath of PW1 clearly show the circumstance of such promise which was admitted by the defendant in paragraph 7 of the statement of defence. That circumstance of this nature is certainly covered by section 103 (3) of Contract Law of Enugu State as an exception to the general principle stated in subsection (1) that where acceptance of an offer does not conform with the terms of the offer being accepted, the person accepting is deemed to reject the offer and to make a new offer to the offeror. Section 103 (3) provides that a statement in an acceptance which merely - (a) makes express what would otherwise be implied; or (b) asks for or promises some indulgence while indicating preparedness to perform the contract even if the indulgence is not granted; shall not be construed as a variation of the terms of offer or as a reservation. He then submitted that the undertaking to put up a minimum of 4 years with the company was admitted by the defendant in paragraph 7 of her statement of defence and statement on oath to be part of the rules and regulation of the claimant company to subject her trainees for tutelage. That assuming, without conceding, that the “4 year minimum” is a counter offer by the defendant, he submitted that the company duly accepted same. That Section 101 of Contract Law Enugu State clearly provides that acceptance may be done orally, in writing or by conduct and must be communicated to the offeror unless the offeror waives this requirement. Paragraph 7 of the defence and exhibit C is a clear acceptance by the parties of the 4 years term. Again the 1 1/2 years put up by the defendant with the claimant company after executing exhibit C amounts to tacit acceptance in line with section 111 (3) the Contract Law of Enugu State. Section 111 (3) provides- Where an offer is made to a person and he either does such act in relation to the offer as he must do if he has accepted the offer, or does any act which necessarily indicates an acceptance of the offer, or performs the conditions of the offer, or accepts any consideration for a reciprocal of the offer, or accepts any consideration for reciprocal promise made with the offer, he shall be deemed to have accepted the offer, notwithstanding that he has not accepted the offer in words. He submitted that the parties’ performance of the contract after exhibit C is a clear acceptance of the same by the claimant which is binding on all the parties. That the the claimant, in paragraph 16 (1) of the statement of claim dated 15/1/2009, claims N8,520.00 being one month commission/salary in lieu of Notice. That the claimant pleaded this in paragraphs 8(2), 10, 11, 14c, 15c, and 16(1) of the statement of claim. This claim was also supported by the evidence of PW1 , Mr. Emeka Ude, who is the chairman and Managing Director of the claimant company in his sworn statement on oath made on 15/1/09 in his paragraphs 6, 8, 11(2) and (3) and the second paragraph 11(1). Pwl also tendered exhibit B, C and H in proof thereof. By exhibits B and C the parties agreed that the defendant should give the claimant company one month Notice or forfeit a month’s commission/remuneration in lieu. The claimant averred in paragraph 11 that the defendant resigned from the company by her letter dated 10th April 2008- exhibit E. It also pleads in paragraph 10 that the defendant took her march 2008 commission of N8,520.00- exhibit H. This claim was not controverted during cross examination of the claimant’s witness. It is good to note that the defendant never denied in her statement of defence these facts and claim of the claimant. In fact, the defendant admitted these facts through her DW 1 during cross-examination. On the sum of N255,600.00 claimed in paragraph 11 (2) of the statement of claim as special damages and compensation for the outstanding 2½ years of the 4 years undertaking by the defendant, counsel submitted that the Claimant has proved specifically as required by law. The 4 year agreement of the parties was pleaded by the Claimant in paragraphs 7, 8 (1), and 14 (b), 15d and 16(2) of the statement of claim. This fact was collaborated by the Claimant via PW1 sworn statement on oath in paragraph 5,6,11(2) and second paragraph 11(2). The Claimant also tendered exhibit C in proof of the 4 year agreement. By the defendant’s letter of acceptance -exhibit C dated 12th September, 2006 - the defendant’s employment with the claimant company took effect from the said date. The defendant, by her letter dated 10th April 2008, exhibit E, resigned from the claimant company. From 12th September 2006 to 10th April 2008 when the defendant resigned amounted to 1½ years. The 4 years agreed by the parties minus 1½ years the defendant put up left an outstanding of 2 ½ years - a total of 30 months. That the claimant has proved through exhibit H that the last commission received by the defendant was N8,520.00, that is, commission for March 2008 [see paragraph 10 of the statement of claim]. The 2½ years (30 months) outstanding of the 4 years multiply by N8,520.00 [last commission received]will automatically give N255,600.00. These facts are contained in paragraphs 8,11,14,15 and 16 (1) and (2) of the claim and paragraphs 5,6,11, (2) and (3) second 11(1) and (2) of the sworn statement of PW 1. Counsel then submitted that the claimant has discharged the onus placed on it to prove its claim specifically and on the preponderance of evidence as required by law. Special damages does not mean an unusual proof, but simply implies that the Claimant who has the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which makes such calculation possible. This is the decision of the Court of Appeal in UBA Plc v. Ogunsanya (2003) 8 NWLR (pt. 821) 111, 128; ISC Services Ltd v. Genak Continental Ltd & Anor (2006) 4 CLRN 59, 83. According to the Court of Appeal in the latter case, relying on the former: What amounts to strict proof would depend on the facts of each case and the character of the acts which produce the damage as well as the circumstance under which the acts were done. But generally the strict proof required in special damages means no more than that the evidence led must clearly show the same particularly as is necessary to support the pleadings. The evidence led must clearly consist of the particulars of loss. The term therefore does not mean an unusual proof, but simply implies that the Claimant who has the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which make such calculation possible... That the claimant has also proved loss of goodwill by the company as a result of the resignation of the defendant without the requisite notice as agreed by the parties’ contract. In paragraphs 12, 13 and 14 of the statement of claim, the Claimant warned the defendant of the effects of her resignation on the business and goodwill of the company. These pieces of evidence were collaborated by PW1 and PW2 in their sworn statement on oath made on 15/1/09. Pwl collaborated this in paragraphs 9,10,11 (1) and (2) and second 11 (3) of his sworn statement on oath. That Pw2 - Mr. Sylvanus Ugwuagu in his evidence collaborated further this loss of goodwill by the claimant. The defendant did not contradict the evidence of the claimant in her statement of defence and sworn statement on oath. The defendant, in fact, admitted during cross- examination that the service process in the claimant company was in stages and that the absence of one stage can really disrupt other stages in the process. That General damages are the natural, necessary and usual result of the wrongful act [see the case of Odinaka v. Mogholu (1992) 4 NWLR (pt. 23311. He urged the court to grant the N100,000.00 general damages for breach of contract and loss of goodwill. Counsel further submitted that the failure of the defendant to respond to the claimant’s solicitor’s letters dated 24/4/2008 and 3/6/2008- exhibits F and G respectively amounts to admission of an liability. It is trite law that silence in a situate where reply is expected amounts to an admission. On the whole, the claimant has proved its claim on the preponderance of evidence or balance of probabilities as required by law. He prayed the court to grant the claimant’s claim. Replying on points of law, the defendants counsel stated that the defendant filed its final address on 5/7/12 and the claimant in response filed its final address dated 8th August, 2012 and raised the following issues: Issue No. 1 (1) That the Claimant had in its paragraph 1 of statement of claim averred that: “It is a limited liability company registered in Nigeria with its head office at No. 72 Owerri Road, Asata, Enugu, that “the allegation. He argued that such proof on by the Claimant having admitted the (2) That Claimant alleged that the issue of unfairness in equality, duress, bad faith raised by the defendant were not substantiated by any facts in the defendant’s defence. He argued further that even if they were, having slept on his right by not complaining for I 1/2 years and waived his right to do so. He went to cite Sec. 171, 172, 176, 177, 178 and 180 of contract law Cap 26 of Enugu State 2004. (3) Whether the claimant has proved and entitled to its claim before the court we would wish to adopt the issues set out and argue serration(sic). On Issue No. 1: counsel stated that the law that evidence led on facts not pleaded goes to no issue and ought to be expunged. Therefore, the entire argument relating to the purported damage caused by the exit of the defendant arising from the stage by stage process of discharging duty in the Claimant should be discountenanced. That the defendant concedes that it is trite law that general denial or traverse does not amount to any denial and as such could be deemed to be an admission of the fact not denied. See Section 75 Evidence Act. However, counsel submitted that there is an exception to this which is that this rule will not apply where the person is not in a position to admit or deny by reason of the matter being peculiar to the adverse party. For example, being peculiarly within the knowledge of the Claimant. For a better appreciation, we would reproduce the position of the law thus: “A Claimant needs not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A Claimant’s averment of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the Claimant. Once he refuses to meet the facts directly, either by admitting or by denying them, EXCEPT OF COURSE, WHERE HE IS NOT IN A POSITION TO ADMIT OR DENY BY REASON OF THE MATTER, FOR EXAMPLE, BEING PECULIARLY WITHIN THE KNOWLEDGE OF THE CLAIMANT, he is taken to have admitted them”. Counsel also referred to the case of SODIPO v OGIDAN (2007) All FWLR (Pt 393) p 73 ratio II. Similarly, in the case of AC.E. JIMMONS v NIGERIAN ELECTRICAL CONSTRUCTION Co. LTD (1976) 1 All NLR 122, the Supreme Court held that denial of a particular paragraph in a statement of claim by means of general traverse has the same effect as specific denial of it and puts the Claimant to bear the burden of proving the allegation made in that paragraph. See also OWOSHO v DADA (1984) 7SC 149 pp 163 -164. The defendant had in paragraph 2 of her statement of defence stated thus “SHE IS NOT in a position to admit or deny paragraph I of the statement of claim but agrees that the Claimant operates its business at 72 Owerri Road, Asata, Enugu. Counsel submitted that the claimed status of the Claimant is not a fact within the knowledge of the defendant; she would not be presumed to know and therefore would not be in a position to know. The Claimant has not been able to discharge the burden of proof which lies on it. He therefore urged the court to resolve this issue in favour of the defendant and apply the ennobling principle of law which, contrary to the assertion in the statement of claim that the Claimant had the necessary standing, (locus standi), the evidence that came out at the trial showed that he did not and the proper thing is for the court to dismiss the Claimant’s case. See G. T & G.C. (Nig) Ltd v NEVICO Ltd (2004) 3 NWLR (pt 860)327. ISSUE NO. 2 The Claimant argued that there are no facts in the defendant’s defence to substantiate the allegations of unfairness, inequality, duress, bad faith alleged by the defendant. Contrary to what Claimant stated, the defendant had in paragraphs 12 and 13 of her statement of defence registered her complaints to Mrs. Onyinye Ude who was the person that she had transactions with throughout her employment there. The Claimant in his cross-examination also admitted that Mrs. Onyinye Ude was one of the directors and usually sits during interview. Learned counsel called in aid the provision of section 133(1) of Evidence Act 2011 which provides thus: “In civil cases the burden of first proving existence or non — existence of a fact lies on the party against whom the judgment of court would be given if no evidence were produced on either side, REGARD BEING HAD TO ANY PRESUMPTION THAT MAY ARISE ON THE PLEADINGS. Section 133 (2) provides that “if the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively”. The defendant having alleged that the complaints were made to Mrs. Onyinye Ude, one of the directors, who also signed all the documents relating to her employment except for Exhibit F, (See Exhibits B and D), the onus has shifted to the Claimant to discharge the burden by calling Onyinye Ude to come and testify otherwise, mere denial without more does not discharge this onerous burden. To counsel, assuming without conceding that it discharged it, it is trite that a Claimant must succeed on his case not rely on the weakness of the defendant’s case citing the case of CHEMICAL AND ALLIED PRODUCTS PLC v VITAL INVESTMENTS LIMITED (2006) All FWLR (pt 342) pg 1304 ratio 1 and HUSSIENI v MOHAMMED (2006) All FWLR (Pt 337) 375, ratio 5 where his lordship MUNTAKA-COOMASSIE JCA (as he then was) said thus: I think I will agree with the finding of the learned trial judge to some extent that the 1st appellant has not been able to prove that his ruling house is Ginda. The respondents then took undue advantage on this weakness to strengthen their case. This should not be allowed. It has become trite that the Plaintiffs cannot rely on the weakness of the defence to sustain their claim, he must succeed on the strength of his case. Applying the rule in Kodilinye v Odu (1935) 2 WACA 33 per Webber C.J Sierra Leone which provides thus: the Onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Counsel urged the court to align itself with the reasoning of the Court as this is a proper case to do so (as) careful perusal of the sections of the Labour Act cited by counsel to Claimant would show that they are totally misconstrued and does not apply to this kind of transaction/employment; that counsel even contradicted himself by section 172 which provides that a party who fails to exercise his right to rescind the contract within a reasonable time would be deemed to have waived his right. Assuming without conceding that the second contract with four years term was a valid contract which the defendant is bound by, resigning from the company within 1½ years for a contract of four years, does it not amount to a reasonable time. Claimant also alleged that the issue of over-time was an afterthought by the defendant, and exhibit prepared by her for the sole purpose of using it in this case, it is trite law that a party cannot approbate and reprobate. PWI during cross examination admitted that he was aware that such record was kept by the defendant and further stated that it was Claimant’s instruction that she should keep it. Also in their reply to statement of defence dated 7th May, 2009, the Claimant in paragraph 4 last line said “the Claimant shall rely during trial on the defendant’s record book attached to her statement of defence”. This was also repeated in Emeka Ude’s additional statement of on Oath. Having allowed it to be tendered as exhibit and even relied on it, they are bound by it and cannot say otherwise. Counsel submitted that the Claimant has not made out a case which the reliefs sought can be granted it and the case should be dismissed. I have carefully considered the processes, evidence, arguments and submissions of learned counsel to the parties in this case. The issues for determination as formulated and argued by the parties are: 1. Whether the status of the claimant was properly or at all established through evidence as to entitle it to commence the suit and claim the reliefs sought? 2. Whether Exhibit C could be relied on to sustain the claim for damages/compensation and loss of good will? 3. Whether there was credible and sufficient proof to entitle the Claimant to the claims/Reliefs? On the first issue, the defendant submitted that it has sufficiently raised questions about the legal status of the claimant to institute this action and therefore the claimant has failed to prove its capacity to sue by producing its certificate of incorporation. On its own part, the claimant argued that the defendant had admitted the fact of the claimant’s legal capacity when in its pleading it failed to properly traverse or deny clearly the fact by stating that it was not in position to admit or deny paragraph 1 of the Statement of Claim of the Claimant relating to the status of the claimant. I have reviewed the submissions of the parties as well as the authorities cited and relied upon by them and the point for determination is whether or not the averment by the defendant that it was not in a position to deny or admit the fact contained in the Statement of claim is sufficient answer to the averment of the claimant that it is a registered company. On this point I refer to the decision in the case of NNPC & 1 Anor vs Chief S.O. Sele & 2 Ors (2004) 5 NWLR (Pt. 866) p. 379 at 412-413 wherein the Court of Appeal held, per Muntaka-Coomasie JCA (as he then was) that: In order to raise an issue of fact there must be a proper traverse. If a defendant refuses to admit a particular allegation in a statement of claim, he must state so expressly and specifically and he does not do this satisfactorily by merely pleading that he is not in a position to admit or deny a particular allegation and/or that he will at trial put the plaintiff to the strictest proof thereof. To say in denial that the plaintiff will be put to strictest proof thereof is not enough and it amounts to no denial at all. See also the Supreme Court’s decision in the case of Oseni vs Dawodu (1994) 4 NWLR (pt. 339) 390 cited and relied upon by the Court in the above case. See also Ngillari vs NICON (1998) 8 NWLR (Pt. 560) 1 at 18 paras C-D ration 10, Lewis & Peat (NRI) Ltd vs Akhimein (1976) 7 SC 157. All these authorities are to the effect that a defendant must specifically and clearly deny or admit a pleaded fact of the claimant. In the instant case therefore, the defendant’s pleading in its statement of defence at paragraph 2 that “the defendant admits paragraphs 2, 3, 4, 5, of the statement of claim, and states that she is not in a position to admit or deny paragraph 1, except to the extent that the plaintiff operates its business at 72 Owerri Road, Asata, Enugu” does not, in my humble view amount to denial but rather an admission of the claimant’s position. Furthermore, it is trite that an admitted fact need not be proved. See O. A. A. Co-operative Society vs N.A.C.P. Ltd (1999) 2 NWLR (Pt. 590) p. 234 Ratio 4 and Confidence Insurance Ltd vs Trustee of O.S.C. (1999) 2 NWLR (Pt. 591) 373 Ratio 13. In the circumstance therefore, the first issue is hereby resolved in favour of the claimant. I will take the second and third issues together. Let me start by reproducing the said Exhibit C. 35 Secretariat Quarters Asata Enugu 12 September 2006 The Manager, Em-Kop Ltd, 72 Owerri Road, Asata-Enugu Sir, ACCEPTANCE OF JOB OFFER I Ani Chinedu of the above named address do hereby accept the offer of job in your company. That I will put up a minimum of four years in your company before my voluntary resignation. That I will abide by the rules and regulations of the company Signature Date: 12/9/06 This Exhibit C as its title denotes is an acceptance based on a proforma made by the claimant which was completed by the defendant in accepting the job offer made to it by the claimant. This was completed by the defendant sequel to the offer of appointment made to her, Exhibit B. The defendant’s case in defence of the claimant’s claim is that the said letter of acceptance, Exhibit C, is tainted with unilateralism, unfairness, (un)reasonableness, inequality, duress, bad faith, oppressiveness, and unjust in the context of the contract between the claimant and the defendant. The defendant has made the arguments and submission and simply relied on the views of the learned author, Professor Emeka Chianu, in his Book, Employment Law, 2004 to the effect that many judges realize that they have a duty to do a balancing act “between law and morals and between the precepts of jurisprudence and those of reason and good conscience” as well as to heed to the view of Lord Mansfiled in the case of Carter vs Boehm (1766) 97 to correct perceived injustice in dealing with rights of parties to a contract or transaction. The defendant then urged the court to use these views in determining this issue. However, on its own part, the claimant drew the attention of the court to the fact that the defendant has not offered any facts to substantiate any of the allegations of unfairness, injustice or the like made against the claimant and even if there were such evidence, the defendant who has worked with the claimant for over one and a half years without alleging those injustices should be deemed to have waived same. Furthermore, learned counsel relied on the provisions of the Contract law of Enugu State, Cap 26, Laws of Enugu State 2004 particularly Sections 171, 177, 178 and 180. In his submissions under reply on points of law, the learned counsel for the defendant argued that the defendant had satisfied the provisions of section 133(1) and (2) of the Evidence Act 2011 by stating in her statement of defence that she had complained about her working conditions to Mrs Onyinye Ude in paragraphs 12 and 13 thereof; and that these are sufficient to shift the burden of proving the allegations of unfairness, inequality, duress, and bad faith onto the claimant. Looking at the said paragraphs 12 and 13 of the Statement of defence and also the witness statement on oath of the defendant as DW1 on page 2 thereof, there is evidence that the defendant has raised complaint in relation to night work, deductions for lateness to work, late payment of her commission and late close of work. The said paragraphs 12 and 13 of the Statement of defence read: 12. The said Onyinye subjected the defendant to night work without any allowance for excess time even if a relation of hers died; deductions were done on lateness, and commission paid by the company. 13. The defendant admits paragraphs 9, 10. In answer to paragraph 11, the defendant states that she did not abscond from work but formally communicated her resignation to the plaintiff. The defendant had on several occasions registered her complaints about late payment of her commission and the late close of work to the proprietress of the company, Mrs Onyinye Emeka Ude. In her written statement on oath, the defendant stated on page 2 paragraph 2 that: The said Onyinye subjected me to night work without any allowance for excess time even if a relation of mine died; deductions were done on lateness, and commission paid by the company. I state that I did not abscond from work but formally communicated my resignation to the claimant. I had on several occasions registered my complaints about late payment of my commission and the late close of work to the proprietress of the company, Mrs Onyinye Emeka Ude. The pleading and evidence of the defendant reproduced above show that the claimant had indeed complained about her work conditions, but then the question is can this evidence be said to have been sufficient in proving that the defendant had raised allegations of unfairness, inequality, duress and bad faith against the claimant in support of the position of the defendant as formulated and argued against Exhibit C? I do not think so. This is because Exhibit C, which has been reproduced above is an Acceptance of Job offer signed by the defendant, in which she had accepted to serve for a minimum of four years and also to abide by rules and regulations of the company. Thus all the allegations leveled against the claimant in the various complaints made by the defendant did not relate to the unfairness, inequality, duress and bad faith. Furthermore, no particulars of these allegations have been given to enable the court determine same in accordance with the law. In the same vein I agree with the submission of the claimant that the defendant had not complained specifically about the allegations after the said contract of employment had come into existence and the defendant had started performing same which she did for up to one and a half years. Here the combined effects of the provisions of sections 171, 172, 176, 178 and 180 of the Contract Law, Cap 26, Laws of Enugu State, 2004, cited and relied upon by the claimant’s counsel supports his position that the defendant cannot be heard to complain about the contract with the claimant having accepted and performed same for over one a half years, and I so find. However, with regard to the point of whether the claimant has proved its case to entitle it to the reliefs it seeks from the defendant, which are special and general damages, I have considered the processes and submissions of learned counsel to the parties. The case of the claimant is that the defendant is bound by Exhibits B and C to the extent that the defendant must give one month’s notice or forfeit one month’s commission in lieu of notice, and that the defendant must also serve a minimum of four years with the claimant before she could resign voluntarily. The defendant, by exhibit E resigned her appointment with the claimant in the letter dated 10th April, 2008. Furthermore, the defendant took her March 2008 Commission of N8, 520.00. These facts have not been controverted by the defendant. Then the claimant claims the sum of N255, 600.00 being special damages and compensation for the outstanding 2 1/2 years of the 4 years that the defendant had contracted to serve. The amount was arrived after multiplying the N8, 520.00 by the thirty months left out of the 4 years that the defendant had agreed to serve in line with the provisions of Exhibit C, the Acceptance of job agreement signed by the defendant. The issue is whether the claimant is entitled to these reliefs? It is trite law that parties are bound by their agreements. The defendant has signed an agreement to serve the claimant, for a specified minimum period of four years but not for a salary but for a commission. The term commission has been defined by the Blacks’ Law Dictionary, 9th Edition as “a fee paid to an agent or employee for a particular transaction, usually as percentage of the money received from the transaction.” Thus whereas the defendant was not being paid salary as such, she was being paid a commission which has been determined by the claimant to amount to N8, 520.00 being the last paid to the claimant, and it now wants the court to make that the basis for its entitlement to the payment of same for the remaining period of two and a half years as special damages and compensation. The claimant has not provided any legal authority for the justification of such payment, the court is not satisfied that the claimant has shown sufficient basis of the grant of the relief of the special damages. In arriving at this decision I have considered the views of the learned authors, H. L. Kumar (2007) Employer’s Rights Under Labour Laws, Third Edition, Universal Law Publishing Company, page 128 to 140. Here the learned author has shown that in order for an employer to maintain his right to claim damages from an employee who chooses to terminate a contract of employment which is for a fixed period, such an employer must have first instituted a bond and a surety in a specified sum which the employee must pay in the event he decides to exit from the contract earlier than the specified period. In other words, where an employee agrees to the payment of the said fixed amount in event of a breach of the bond to serve for a specified period, the courts have held that such amount is payable by the employee to the employer. See Toshniwal Brothers (Pvt) Ltd vs E. Eswaprasad, 1997 LLR 500, and Fertilizer and Chemical Travancore Ltd., vs Ajay Kumar 1990 LLR 711, both decisions of Indian courts which, I must add are only of persuasive authority in this country. However, I have had to rely on the Indian circumstance, which is also a Commonwealth jurisdiction, to try to expound the law here. In the circumstances of this case, the amount paid to the defendant was only a commission which could not be said to be a salary that was fixed and known to be payable. A commission is something that is paid for particular transactions conducted. The question is can it be said that the claimant has shown satisfactorily that the said sum is indeed what he was to be paid for the damage incurred as a result of the early exit of the defendant? No I do not think so. This is because firstly, in the agreement there is no specification of any amount to which the parties were tied to. Secondly, even the subsequent letter of promotion of the defendant, Exhibit D, as well as Exhibits B and C, have not specified the clear entitlement of the claimant to the defendant and vice versa in circumstances where the defendant intends to take an early exit. The claimant has referred to rules and regulations of the company as embodied in Exhibit C, to which the defendant is bound. There is however, no such specific and clear regulations that have been placed before the court to enable it construe and apply same to the circumstances of the case. The claimant has a duty to place same before the court. See FBN vs Isokwa (2004) 5 NWLR (pt. 866) 271 Ration 7. Furthermore, the claimant has a duty to prove particular losses which are exactly known or accurately measurable before the court. See Nwanji vs Coastal Services (Nig.) Ltd (2004) 6-7 S.C. 38. One may add also that an agreed bond too would have been a clear basis for the entitlement to such special damages. There is also the issue of the one month salary in lieu of notice which the claimant has claimed against the defendant. Here Exhibit H has been relied upon by the parties to show that the defendant had been paid the commission of 8,520.00 for the month of March, 2008. From the contents of exhibit B, the defendant had an obligation to give one month’s notice but she did not do so and after receiving the commission of March 2008, according to the claimant, she disappeared and sent a letter of resignation dated 10th April, 2008. After examining all the evidence before the court, it is clear that the defendant should have at least given one month notice before disappearing from the workplace. Consequently therefore, the court finds in favour of the claimant on the issue of the one month notice to it by the defendant. On the last point of general damages, for which the Claimant is asking the court to grant it a total sum of N100,000.00 as general damages and loss of goodwill, I have carefully considered all the submissions of counsel to the parties. The claimant’s witnesses, especially CW2 stated in his evidence under cross examination that he was not even aware that the defendant had resigned her appointment from the claimant. Thus in the circumstance, the only witness called by the claimant to prove his claim of loss of goodwill as a result of the act of its former employee, the defendant, is not strong enough in my humble view. In the circumstance and for all the reasons given above, the case of the Claimant succeeds in part and I hereby hold and order that: 1. The defendant shall pay the sum of one month’s commission fixed at the last amount received in March 2008 being Eight thousand five hundred and twenty naira (N8, 520.00) only to the claimant for breach of the duty to give one month’s notice. 2. The claim for special damages of Two hundred and fifty-five thousand, six hundred naira (N255, 600.00) being special damages is hereby refused. 3. The sum of fifty thousand naira (N50, 000.00) as general damages is hereby awarded to the claimant. 4. Cost shall also be paid to the claimant by the defendant assessed at the sum of twenty thousand naira (N20,000.00) only. Judgment is entered accordingly. Hon. Justice A. Ibrahim Presiding Judge