Download PDF
The claimant took up a complaint dated and filed on 16th July 2012 praying against the defendants jointly and severally for the following reliefs – a) The sum of N60, 000.00 being the outstanding salary of the claimant for month of April, 2012. b) The prorated sum of N30,000.00 in lieu of the two weeks’ notice of disengagement from employment which the defendants had failed and neglected to give before verbally terminating the employment of the claimant. c) General damages in the sum of One Million Naira only for the wrongful dismissal of the claimant from the employment of the defendants. d) Cost of this action estimated at One Million Naira only. Accompanying the complaint are the statement of facts, two sets of list of documents (one containing a list of four documents, the other containing a list of six documents – both dated 16th July 2012) and copies of six documents (Exhibits BOA 1 – BOA 6). It was later that the claimant filed the claimant’s witness statement on oath and the claimant’s reply to the defendants’ statement of defence. The defendants entered appearance by filing their memorandum of appearance, statement of defence and counterclaim, defendants’ list of witness, written statement on oath of the defendants’ witness, defendants’ list of documents to be relied upon at trial and copies of the documents (Exhibits D1 – D6). The parties called a witness each. The claimant testified on his behalf as CW, while Mr. Olufemi Clifford, an Accountant by profession with the firm of Clifford & Co., a firm of Chartered Accountants and Auditor to the 1st defendant, testified for the defendants as DW. The case of the claimant from the statement of facts and witness statement on oath is that as a professional accountant he joined the employment of the 1st defendant on 1st February 2012 as Account & Admin Manager pursuant to the 1st defendant’s letter of offer of employment dated the same day. He dutifully carried on his professional assignments without any issue until sometimes in mid March 2012 when the 2nd defendant’s poor inter-personal relationship toward the claimant became frosty and hence making the place of work uncomfortable for the claimant. By mid or around April 2012 the frosty interpersonal relationship between the claimant and the 2nd defendant, owing to the latter’s intolerable harassment, had become worse to the extent that the claimant was being threatened with verbal dismissal almost every working day. Specifically, that on 20th April 2012, the 2nd defendant literally ordered him out of the working place with a verbal order of dismissal from work but without any prior notice of such dismissal or payment in lieu of same. That the claimant who was never in the habit of taking company’s documents or properties home but simply had them in his office thus walked out of the premises without any document or properties of the defendants. As at the time the claimant was literally walked out of the working place his April salary had not been paid and neither was he given a payment in lieu of notice of dismissal. That the defendants’ letter dated 15th May 2012 and admitted as Exhibit D5 by the Court in this case clearly confirms the outstanding April 2012 salary of the claimant. On the other hand, the case of the defendants from the statement of defence and sworn testimony of DW is that the claimant presented himself to the 1st defendant as a trained Accountant and upon his application he was placed on probation with the 1st defendant for the first 6 (six) months according to the letter of Offer of Employment dated 1st February 2012 (Exhibit D1/Annexure BOA 1). The letter of employment contains certain terms and conditions (especially that either party could terminate the appointment by giving two weeks’ notice in writing or payment in lieu of notice) which the claimant accepted and as such forms part of the contract of employment. Surprisingly, on 12th March 2012 the 1st defendant received from the claimant a letter of resignation of appointment (Exhibit D2) which was to take effect on 27th March 2012. This was later withdrawn by the claimant via a withdrawal of resignation letter dated 12th March 2012 and apologized to the 2nd defendant for his shortcomings That the claimant was employed to keep a detailed account and to monitor the 1st defendant’s banking and financial transactions, which he could not achieve after 2 (two) months of resumption. As a result of this the 2nd defendant on the instruction of the Board of Directors of the 1st defendant issued the claimant an internal memo dated 3rd April 2012 directing the claimant to submit all accounts report on the 1st defendant and its subsidiaries to the 2nd defendant not later than 12th April 2012. This the claimant could not do. Subsequently on 20th April 2012, the claimant left the 1st defendant’s employment without any notice as required by the contract between them. Sometime in the first week of May 2012, the claimant approached the 1st defendant demanding for his salary for the month of April 2012 and he was told to do a proper handing over of the office documents and properties in his possession after which he would be paid his salary despite the fact that he was not entitled to the said salary by his failure to give requisite notice. Having confirmed that the claimant has left the employment of the 1st defendant without handing over files, documents and properties in his possession, the defendant wrote to the claimant via a letter dated 15th March 2012 (Exhibit D5), demanding for a proper handing over. Despite the said letter the claimant still refused, neglected and failed to do a proper handing over of the 1st defendant’s files, documents and property in his possession and left the company’s account in disarray. The defendants’ case, therefore, is that the claimant worked till 20th day of April 2012 and abandoned his duty post without notice despite the fact that he is expected to give 2 weeks’ notice or salary in lieu of notice and as such the claimant has breached the contract between them and is liable to pay damages for breach of contract. The defendants framed four issues for the determination of the Court, namely – 1. Whether considering the circumstances of this suit there is a breach of the contract between the parties and which of the parties is in breach. 2. Whether the defendants are not entitled to general damages for breach of contract between the parties. 3. Whether the defendants’ witness (Mr. Olufemi Clifford) is a competent witness in this case. 4. Whether considering the evidence before this Court the claimant has established his case for the Court to grant his prayers as contained in the General Form of Complaint and statement of facts establishing the cause of action. Regarding issue 1, the defendants contended that the law is trite that parties are bound by the terms of their contract. Thus, if any dispute should arise with respect to the contract, the terms in any document which constitute the contract are invariably the guide to its interpretation. Referring to Oyekwelu v. Elf Petroleum Nigeria Limited [2009] 5 NWLR (Pt. 1133) 181 at 186 Ratio 2 SC. That in the instant case there was an offer made by the 1st defendant, which was communicated to the claimant, which the claimant unequivocally accepted and the document that represents the contract between the parties is the letter of offer of employment dated 1st February 2012 issued by the 1st defendant and accepted by the claimant in this suit. The letter of employment was tendered by both parties (claimant and defendants) to the suit and admitted as Annexure BOA 1 and Exhibit D1, the relevant clause of which is clause 2. To the defendants, the law is that a contract is made when and where the acceptance is given unless a different intention can be gathered from the document(s) supporting the contract. The acceptance which is a final expression of consent to the terms of the offer must be positive and must correspond with the terms of the offer, and this may be ascertained from the words, writing or the conduct of the offeree, citing Majekodunmi v. National Bank Nigeria Limited [1978] 3 SC 119 at 127 and Okubule v. Oyagbola [1990] 4 NWLR (Pt. 147) 723 at 741 – 742 SC. That it would be noted from the evidence in this suit that the claimant did not comply with this requirement/condition for termination before abandoning his duty post, as the claimant left work on the 20th April 2012 and never returned to duty as expected. To the defendants, the claimant alleged that he was verbally instructed to stop work and that he handed over the company’s documents and record to Mr. Olufemi Clifford in the presence of Mr. Femi Obisesan. Mr. Olufemi Clifford who is the sole witness of the defendants in this suit testified before this Court (under re-examination on the 6th March 2013) that he was in the office of the 1st defendant on 20th April and he met the claimant, who had difficulties in preparing the account he was duty bound to prepare. He further testified that he assisted the claimant in preparing the said account and the claimant thereafter submitted the account to the company. Upon returning from the 2nd defendant’s office the claimant informed him that he was leaving the 1st defendant and would no longer work with the defendants. He advised the claimant to give the 2 (two) weeks’ notice as required, but the claimant walked out of the premises without returning to work. To the defendants, the facts before this Court reveal that upon the claimant’s decision to stop work without any notice given to his employer, the claimant approached the defendants and demanded for payment of his salary for the month of April 2012, referring to paragraph 13 of the claimant’s statement of facts. That notwithstanding the way and manner in which the claimant left the employment of the 1st defendant, the 1st defendant wrote a letter dated 15th May 2012 to the claimant (Exhibit D5 and also tendered by the claimant as Annexure BOA2). The defendants in the said letter required the claimant to come to the office and do a proper handing over of the documents and records with him before he would be paid his April salary. The claimant did not appreciate the defendants’ uncommon gesture and failed to fulfill this requirement neither did he reply to the 1st defendants’ letter dated 15th May 2012. The claimant, instead of grabbing the opportunity afforded him by the 1st defendant, instructed his solicitor to institute an action. That the claimant in paragraph 10 of his written statement on oath deposed to on 22nd October 2012 stated that he handed over to 1st defendant’s External Auditor, Mr. Olufemi Clifford, in the presence of an Account Officer, Mr. Femi Obisesan. That the claimant failed to call either Mr. Olufemi Clifford or Mr. Femi Obisesan to come and give evidence before this Court to support his claim. The defendants then urged the Court to invoke the provision of section 167(d) of the Evidence Act (as amended), which provides that the Court may presume that evidence which could be and is not produced would, if produced, is unfavorable to the person who withholds it, referring to N.S.C (Nig) Ltd v. Innis-Palmer [1992] 1 NWLR (Pt. 218) 422 and Omoboriowo v. Ajasin [1984] NSCC 81 SC. The defendants continued that in the interest of justice and in an effort to bring the facts properly before the Court, the defendants called Mr. Olufemi Clifford as their sole witness in this suit. Mr. Olufemi Clifford gave evidence and stated that the claimant did not hand over any of the 1st defendant’s document or records to him. Under cross-examination, the defendants’ witness stated he was in the 1st defendant’s office on the 20th April 2012 and that the claimant left the office on his own will against his advice that he should give the 1st defendant proper notice as required by the contract of employment between them and that the claimant never handed over any document to him. The evidence of Mr. Olufemi Clifford was not controverted under cross-examination. The defendants then urged the Court to accept the piece of evidence in this regard as the truth and nothing but the truth. That the Courts have decided that the only situation where a party to a contract for employment can successfully seek remedy in a Court of law is when the terms of employment are breached, referring to the decision of Ekpe, JCA in Strabag v. Adeyefa [2001] 15 NWLR (Pt. 735) 1 at 21. The defendants went on to submit that it is clear from the evidence before the Court that the claimant left the employment of the 1st defendant on 20th April 2012 on his own volition without any prior notice as against the clear terms of the contract of employment. That this is a clear breach of the contract between the parties. The defendants then prayed the Court to so hold and determine this issue in favor of the defendant. On issue 2, the defendants contended that the general principle of damages is that where there is a wrong there is a remedy. That according to the Latin maxim Ubi Jus Ubi Remedum, the 1st defendant has proved by way of evidence that it has suffered damages due to the act of the claimant i.e. leaving the company without prior notice or proper handing over of action and records of the company. That this evidence remains uncontroverted, as the claimant has not been able to establish the fact that he handed over to Mr. Olufemi Clifford. That the Court has a duty to act on it, referring Kosile v. Folarin [1989] 3 NWLR (Pt. 107) 1 at 12; Buraimoh v. Bamgbose [1989] 3 NWLR (Pt. 109) 352 at 363 – 364; and Adeleke & ors v. Iyanda & ors [2001] 13 NWLR (Pt. 729) 1 at 22 – 23. To the defendants, the law is that breach of contract is actionable per se and would entitle the aggrieved party to damages, referring to Universal Vulcanizing (Nig) Limited v. I.U.T.T.C [1992] 9 NWLR (Pt. 266) 388, where the court held that “breach of contract is actionable per se, thus a party who has suffered or proved no loss may win his action for breach of contract”. The defendants then submitted that having established that the claimant is in breach of contract between him and the 1st defendant (as contained in the offer letter dated 1st February 2012), the defendant is entitled to compensation in damages. The defendants urged the Court to so hold and determine this issue in favour of the defendant by awarding general damages in favour of the 1st defendant. On issue 3 i.e. whether DW (Mr. Olufemi Clifford) is a competent witness in this case, the defendants referred to section 175 of the Evidence Act 2011 and Okoye v. State [1972] 7 NSCC 717 at 722, where the Supreme Court held per Coker, JSC that “There is long line of authorities establishing that competency is not a matter of age but understanding”. Also referred to the Court is Rauf Adesoji Aregbesola & 2 ors v. Olagunsoye Oyinlola & 2 ors [2011] 9 NWLR (Pt. 1253) 458 at 493 Ratio 19, where the Court of Appeal held that any person can qualify as competent witness upon satisfying these conditions laid down in the Evidence Act. Further referred to the Court are the cases of Famurewa v. Onigbogi (unreported Appeal No. CA/I/NA/EPT/NA/91/08 delivered on 16th April 201, Lasun v. Awoyemi [2009] 16 NWLR (Pt. 1168) 513, Omonga v. State [2006] 14 NWLR (Pt. 1000) 532 and Obinwunme v. Tabansi-Okoye [2006] 8 NWLR (Pt. 981) 104. On who can testify on behalf of a company, the defendants, citing Mrs. S Anaja v. United Bank of Africa Plc [2011] 15 NWLR (Pt. 1270) 377 at 384, submitted that any servant or agent of the company is a competent witness and can give evidence and tender documents to establish any transaction it entered into or activities it had undertaken. The servant or agent may not of necessity have to be the one who actually took part in the transaction or activity for the company. His evidence is admissible, relevant and not hearsay. The defendants also referred to Kate Ent Ltd v. Daewoo (1985) 2 NWLR (Pt. 5) 116. The defendants went on that a party is not bound to give evidence on his own behalf, citing N.A.U. v. Nwafor [1999] 1 NWLR (Pt. 585) 116 at 141, Atilade v. Atilade [1968] 1 All NLR 27 at 29 and Lawal Osula v. Lawal Osula [1993] 2 NWLR (Pt. 274) 158 and Onwujuba v. Obienu [1991] 4 NWLR (Pt. 183) 16. To the defendants, their witness in this suit (Mr. Olufemi Clifford) is a competent witness to testify as to what transpired between the claimant and the defendant. He is an agent of the company, though not a principal officer. He is qualified to give answers to questions put to him and is of sound mind. He actually conducted interview for the claimant at the point of entry and has assisted the claimant in performing his duties to the 1st defendant. More important the claimant has alleged that he handed over the company’s records and documents to him. That he is a competent and appropriate person to be a witness in this suit, and so the Court should hold and determine this suit in favor of the defendants. Regarding issue 4 i.e. whether the claimant has established his case for the Court to grant his prayers, the defendants contended that the law is crystal clear as to on whom the burden of proof in civil cases lies. That in Shaba Audu v. Alhaji Jubril Guta [2004] 4 NWLR (Pt. 864) 463 at 465 Ratio 1, the Court held that he who alleges must prove. Thus, the primary onus is on the plaintiff to prove his case on the preponderance of evidence. The defendants also referred to Kodilinye v. Mbanefo Odu [1935] 2 WACA 336 and A. E. Mogaji v. Madam Rabiatu Odofin [1978] 4 SC 91, sections 131, 132 and 133 of the Evidence Act 2011 and Benignus Duru v. Jonathan Nwosu [1989] 4 NWLR (Pt. 113) 24 at 42. That considering these provisions of the Evidence Act, it would be seen that though there are situations wherein the burden of proof can be shifted as provided for by law, or where the fact which is to be proved is within the knowledge of another, aside from this situation, the burden of proof basically lies on the party who wants the Court to believe the existence of a particular fact. The defendants then submitted that a claimant can only succeed on the strength of its own case and not on the weakness of the defence (although a plaintiff may use facts in the defendant’s case that support his case), citing Chief Obono Egom & ors v. Mr. Eno Omini Eno & anor [2008] 12 NWLR (Pt. 1098) 320 at 324 Ratio 4, Onyemelukwe v. W.A.C.C. [1995] 4 NWLR (Pt. 387) 44 at 56, Enigwe v. Akaigwe [1992] 3 NWLR (Pt. 225) 505 SC, Mogaji v. Cadbury (Nig) Ltd [1985] 2 NWLR (Pt. 7) 393 SC, Awote v. Owodunmi (No 2) [1987] 2 NWLR 366 SC and Mrs. Florence Mosunmola Otunla v. Madam Idowu Ogunowo [2004] 6 NWLR (Pt. 868) 184 at 197. The defendant continued that the claimant has not been able to establish beyond preponderance of evidence that the defendants terminated his employment without notice. The evidence before the Court reveals that the claimant merely left the employment of the defendants on 20th April 2012 without the required 2 (two) weeks’ notice to defendant as required by the contract between them. He said he handed over the documents and records of the company to Mr. Olufemi Clifford in the presence of Mr. Femi Obisesan. He has failed to call Mr. Olufemi Clifford or Mr. Femi Obisesan as witness in this suit. The defendants then urged the Court to hold that the claimant has failed to establish his case as contained in the complaint and statement of facts establishing the cause of action. In conclusion, the defendants urged the Court to dismiss the claim of the claimant as it is unmeritorious and an attempt at gold digging and to grant the defendants’ counterclaims as contained in their statement of defence and counterclaim. The claimant framed one issue for the determination of the Court, namely – Whether or not the claimant has proved his case on the preponderance of evidence and thus entitled to the judgment of this Court as prayed. The claimant conceded that pursuant to the provisions of section 132, 133 and 134 of the Evidence Act 2011, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were provided on either side, regard being had, however, to any presumption that may arise. Notwithstanding this, however, that such burden of proof on the party, invariably the claimant as in the present case, is not static and shall be discharged only on the balance of probabilities. In other words, the preponderance of evidence of probability simply means that the claimant needs only establish that his story is more likely to be true than the defendant’s and to convince the Court or tribunal of the probability of his case rather than that of his opponent on the point in issue, referring to Orji v. Dorji Textiles Mills (Nig) Ltd & 3 Ors [2009] 12 NWLR 395 at 403, Mogaji v. Odofin [1978] 4 SC 91 at 98, Jiaza v. Bamgbose [1999] 7 NWLR (Pt. 610) 182 SC, Nnubia v. A.G Rivers State [1999] 3 NWLR (Pt. 593) 82 CA, Ajagungbade III v. Laniyi [1999] 13 NWLR (Pt. 633) 92 CA and Onowhosa v. Odiuzou [1999] 1 NWLR (Pt. 586) 173 SC. To the claimant, the question is whether it can be said that the claimant has discharged the burden of proving his case as constituted by his pleadings. That the claimant who has given positive and direct evidence on the issues raised in his pleadings and without buckling under the fire of the defendants’ cross-examination has indeed discharged his burden of proof on the preponderance of evidence. In other words, that the claimant did successfully give positive, direct and un-contradicted evidence on the issues constituted by his pleadings. For example, that Exhibit BOA 2 (the defendant’s letter dated 15/05/2012) did confirm the fulcrum of the claimant’s pleadings and evidence in Court that his April 2012 salary was never paid by the defendants. The claimant then asked whether the defendants also successfully discharged the burden of proof that shifted to them upon the claimant’s discharge of his own. The claimant answered that the defendants woefully failed to offer any credible evidence to contradict or disprove the case of the claimant. For example, that whilst the defendants engaged in the nebulous claims that the April 2012 salary of the claimant was withheld based on his alleged failure to “properly hand over” when he left their employment they all the same woefully failed either through cross-examination or through their own main evidence to show what documents and/or properties the claimants did not properly hand over or was withholding. Indeed, once the claimant has discharged his own burden by positively and directly giving evidence that he handed over properly, the burden to proof otherwise shifted to the defendants and this they woefully failed to discharge. To the claimant, whereas all persons shall be competent (referring to section 175(1) of the Evidence Act 2011) to testify unless in certain cases identified by law, a party who calls a witness needs to ensure his witness in a case is indeed competent and credible to give evidence in his case having regards to the prevailing circumstances in the case. That the sole witness called by the defendant testified on oath that he was not the employer of the claimant; that he was neither a member nor staff of the 1st defendant company but only a member of yet another extraneous company which purportedly audits the accounts of the 1st defendant company. The sole defendants’ witness testified further that he was not privy to the day to day activities of the 1st defendant company but only goes there occasionally for the purpose of auditing the 1st defendant’s account. Can it be said, therefore, that the defendant’s sole witness who has given evidence in the above manner is reliable and credible witness that can give positive and direct evidence on the relationship between the claimant and the defendants as contained in their pleadings? The claimant thought not. The claimant went on that the evidence of the defendants’ sole witness is at best hearsay evidence which can hold no water and hence cannot be put in any imaginary scale side by side with that of the claimant which is direct and positive. That it stands to reason, therefore, that the burden of proof which shifted to the defendants has not and could not be said to have validly been discharged with any credible, probable and direct evidence. Indeed, that the defendants had allegedly told him about the claimant’s alleged failure of duties and related issues. Yet, the 2nd defendant who is a party in this suit was never called as a witness by the defendant and no reason whatsoever was given as to why he was not called. The defendants’ sole witness did not also anywhere in his evidence give any direct and positive evidence about the relationship between the claimant and the defendants other than the claim that he was there in the defendants’ office on 20th April 2012 when the claimant left the employment. The claimant then referred to section 37 of the Evidence Act 2011, which defines hearsay evidence, and JAMB v. Orji [2008] 2 NWLR (Pt. 1072) 552, A.G Rivers State v. A.G Akwa Ibom State [2011] 8 NWLR (Pt. 1248) 31 SC, Nwofor v. Obiefuna [2011] 1 NWLR (Pt. 1227) 205 CA and Vorgho v. The State [1972] NSCC 303 SC. That the sole reason the defendants have brought their sole witness to Court is to prove the truth of their case once the burden of proof shifted to them. But can it now be said that a witness who has only given evidence based on what the 2nd defendant had allegedly told him about the claimant has given credible, direct, positive and reliable evidence? The claimant thought not, urging the Court to treat the evidence of the defendants’ sole witness as nothing but hearsay and hence unreliable and inadmissible. That since there is no really any credible and reliable evidence of the defendants to put in the imaginary scale, the claimant urged the Court to decide on the preponderance of the direct, positive, credible and unchallenged evidence of the claimant and hence hold in his favour. Indeed, that the hearsay evidence of the defendants is as good as no evidence at all. Finally, on the sole issue formulated by the claimant above, the claimant urged the Court to give judgment to him as prayed relying on the crest of the totality of the authorities cited above, Osun State Government v. Danlami (Nig) Ltd [2003] 7 NWLR (Pt. 818) 72 at 99 and the holding of the Supreme Court per Onnoghen, JSC in Chami v. UBA Plc [2010] 6 NWLR (Pt. 1191) 474 at 496 – 497 to the effect that it is settled law that where the party offers no evidence in defence of the case of the plaintiff, the burden placed on the plaintiff is minimal, since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case. The claimant proceeded to react to specific issues raised by the defendants in their written address, urging the Court to dismiss the defence and the nebulous counterclaim of the defendants as weak, unreliable and nothing but hearsay, an abuse of court process and an attempt to overreach the claimant in this suit. On defendants’ issue 1, that the argument of the defendants in respect of the issue of alleged breach of contract by the claimant is baseless. That it is trite that however beautifully written the address of a counsel is, such an address cannot take the place of or conjure evidence for which no proof was offered in Court. That the defendants did not give evidence whatsoever of any breach of contract by the claimant either through cross-examination or through their sole witness whom we had earlier argued is not reliable. In any event, that the defendants did not present any credible or reliable witness who is reasonably in the position to proof the alleged breach of contract by the claimant. It is trite that where evidence led by a party is not pleaded or reliable, such evidence goes to no issue, referring to Mbani v. Bosi [2006] All FWLR (Pt. 323) 1615 at 1624. The claimant continued that the burden of proving which alleged properties or documents of the 1st defendant the claimant did not “hand over properly” shifted to the defendants the moment the claimant had directly and positively stated by his pleadings and evidence on oath that he handed over everything he was supposed to hand over. In other words, it is indeed the duty of the defendants to prove to the Court, through credible, reliable and positive evidence, what documents or properties the claimant did not “hand over properly” as alleged. That this burden the defendants woefully failed to discharge as all they stated in their pleadings as well as the unreliable hearsay evidence of their sole witness was that the claimant did not “hand over properly”. The questions then are: what exactly does this nebulous “proper hand over” means? What documents or properties are there to hand over properly? That only the defendants could have proven these but they woefully failed and neglected to do so when the burden shifted to them. The defendants then submitted that the defendants have thus been caught by section 33(2) of the Evidence Act 2011 and cannot put the blame on the claimant who has discharged his own burden. Regarding the defendants’ issue 2, the claimant submitted that argument of the defendants for general damages goes to no issue as the defendants have woefully failed and neglected to show by any credible and reliable evidence that the claimant actually breached any term of his contract of employment with them. That the positive direct and un-contradicted evidence of the claimant on record was that he had a history of frosty relationship with the 2nd defendant who had verbally threatened him on numerous occasions with verbal dismissal and which threats eventually climaxed on 20th April 2012 when the 2nd defendant literally walked the claimant out of the premises. That the only witness who could have successfully challenged and disprove such claims of the claimant was the 2nd defendant who was never called by the defendants for reasons known to them only. Hence, the sole witness of the defendants who admitted he was not regularly present at the working place could not have credibly disproved the claimant’s testimony since he was never regularly privy to the altercations between the claimant and the 2nd defendant. Indeed, that for failing to call the 2nd defendant, the defendants have been caught by the provision of section 167(d) of the Evidence Act 2011 as amended for withholding evidence that could have assisted the Court one way or the other, urging the Court to so hold. Regarding the defendants’ issues 3 and 4, the claimant submitted that the arguments of the defendants particularly on issue 3 is a total misconception of the law. That the question about defendant’s sole witness is not really only about his competence but about the nature of his evidence and the purpose of calling him. That the witness is a hearsay witness whose evidence cannot be relied upon. On the defendants’ issue 4, the claimant submitted that the claimant has indeed proved his case on the preponderance of evidence and thus entitled to the judgment of this Court in his favor and as prayed. In conclusion, the claimant urged the Court to grant his prayers and dismiss the defendant’s defence and counterclaim for lacking in merit. The defendants reacted by filing a reply on points of law. On the issue whether the evidence of DW is hearsay, the defendants cited Dele Gabriel v. The State [2010] 6 NWLR (Pt. 1190) 280 at 298 Ratio 30, where the Court defined hearsay evidence as follows – Hearsay evidence is the evidence of the contents of a statement made by a witness who himself is not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testify to fact within his personal knowledge, subject to recognized exceptions. Therefore, hearsay evidence in its legal sense is evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity or competence of some other person. To the defendants, their sole witness in this suit, Mr. Olufemi Clifford, testified to facts within his personal knowledge, which include the fact that he was the one that conducted interview for the claimant in this suit at the time of his entry into the 1st defendant company. The claimant alleged that he handed over the company’s property with him to Mr. Olufemi Clifford (the defendants sole witness in the suit), who has succinctly given evidence before this Court that the claimant did not hand over to him. He gave evidence to the fact that though he was at the 1st defendant’s office on 20th April 2012, when the claimant left the 1st defendants’ employment but that he (the claimant) never handed over to him. He also gave evidence of all that he knew about the relationship between the claimant and the 1st defendant, without reporting anybody’s story or evidence to the Court. He gave a direct evidence of what he saw and knew. That this is not in any way hearsay evidence. The witness has given direct evidence of what he knew and saw about the relationship between the claimant and the defendants. The claimant had urged the Court to invoke the provision of section 167(d) of the Evidence Act 2011 on the defendants for failing to call the 2nd defendant as a witness in this suit. To the defendants, the law is clear that this provision does not compel a particular witness to be called, but that particular evidence must be given. The provision of section 167(d) of the Evidence Act 2011 is similar and in all fours with the provision of section 149(d) of the Evidence Act 2004; and the Supreme Court interpreted and pronounced on it in the case of Moses Jua v. The State Suit No. SC.287/2008, delivered on 5th February 2010. Niki Tobi, JSC (delivering the lead judgment) held as follows – Learned Counsel submitted that Cpt. Uzor is an essential witness that the prosecution ought to have called. He urged the Court to invoke section 149(d) of the Evidence Act. Section 149(d) does not provide that a particular witness should or must be called. The subsection proposes that particular evidence should be called. See Igwunor v. Corporate Bank of Eastern Nigeria Limited [1994] 8 NWLR (Pt. 318) 90 at 119; Onuwaje v. Ogbeide [1991] 3 NWLR (Pt. 178) 187 at 167; Aremu v. The State [1991] 7 SC (Pt. III) 82. Some other witness gave evidence of the facts that the Appellant was last seen with the deceased and so the evidence of Cpt. Uzor was not inevitable. I repeat that section 149(d) is on a failure to call evidence and not failure to call a particular witness. Accordingly the failure to call Capt Uzor is neither here nor there”. Furthermore, that the claimant, in arguing that the defendants failed to call the 2nd defendant as a witness, urged the Court to take his evidence as adverse to the defendants. To the defendants, the provision of this section does not apply in this case as the defendants have given all the necessary evidence that would assist the Court in doing justice to the dispute between the parties. On the issue of calling of witnesses in civil cases, that the Supreme Court has held per Elias, CJN in Ajao v. Ashiru & ors Suit No. SC. 277/1973 8 N.S.C.C 525 at 532 that: “We think that there is merit in this submission because it is not for the court to tell counsel what witnesses to call in a civil matter”. The case of Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170 at 183 was also referred. That in the case of Udo v. Eshiet [1994] 8 NWLR (Pt. 363) 483 at 500, Niki Tobi, JCA (as he then was) held that the Evidence Act does not require the calling of a particular witness but the production of particular evidence. Furthermore that a party is not bound to call a particular witness if he can establish his action otherwise, referring to Onavjoba v. Obienu [1991] 4 NWLR (Pt. 183) 16 and Lawal Osula v. Lawal Osula & ors [1993] 2 NWLR (Pt. 274) 158 at 179. That the defendants have proved their case without calling the 2nd defendant as a witness in this suit, urging the Court to so hold. The defendants continued that the claimant’s counsel in his final written address attempted to distort the claimant’s evidence before the Court by saying that the claimant does not go home with the 1st defendant property and as such there is no need for any handing over. That this is contrary to evidence of the claimant before this Court. In his evidence before the Court, the claimant in paragraph 10 of his written statement on oath deposed to on 22nd October 2012 (which is his evidence in this suit) stated that he handed over all the properties and/or documents of the company in his care to the 1st defendant’s auditor, who was as at then in the office, Mr. Olufemi Clifford, in the presence of an account officer, Mr. Femi Obisesan. That the law is clear that written address of counsel no matter how brilliant it is cannot take the place evidence. The claimant cannot at this point by his Final Written Address change or substitute his evidence before this Court. That Courts are only enjoined to limit and restrict themselves to pleaded and proved facts, referring to C.C.C.T.C.S. Ltd v. Ekpo [2008] 6 NWLR (Pt. 1083) 362 at 392, Okwejiminor v. Gbakeji [2008] 5 NWLR (Pt. 1079) 172 at 223, Olagunju v. Adesoye [2009] 9 NWLR (Pt. 1146) 225 at 255 and Mr. Francis Obi Iroegbu v. MV Calabar Carrier [2008] 5 NWLR (Pt. 1079) 147 at 154 Ratio 12. The defendants then urged the Court to discountenance such evidence as counsel was not called as a witness in this suit, neither has he taken any oath before the Court. That the law is settled that parties are bound by their pleadings before the Court, citing Adetoun Oladeji (Nig) Ltd v. N.B. Plc [2007] 5 NWLR (Pt. 1027) 415 at 420 Ratio 5, F.A.T.B. Ltd v. Partnership Inv. Co. Ltd [2003] 18 NWLR (Pt. 851) 35 at 46 Ratio 14, Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR 460, Akpapuna v. Nzeka [1983] 2 SCNLR 1 and Omoregie v. Idugiemwanye [1985] 2 NWLR (Pt. 541). The defendants went on that in the instant case, the pleading of parties before the Court are the claimant’s statement of facts establishing the cause of action, the defendants’ statement of defense and counterclaim and the claimant’s reply to the defendants’ statement of defense. From these pleadings, one of the disputes between the parties is whether the claimant did a proper handing over before leaving the 1st defendant’s employment. The claimant’s position as gathered from his pleadings and evidence before the Court is that he handed over to Mr. Olufemi Clifford. The defendants by their pleadings and evidence as led by Mr. Olufemi Clifford established that the claimant never handed over to him. That in view of this, the claimant failed to tell this Court the truth. Basically, that the claimant is not a witness of truth and this Court is not expected to rely on his evidence. That the position of the law when there are contradictions in the evidence of a witness is that the Court will regard the evidence of such a witness as unreliable and no reliance will be placed on same, referring to Onugboju & anor v. State [1974] 9 N.S.C.C 358 at 365 and Kwagshir & anor v. State [1994] 2 NWLR (Pt. 328) 592 at 615. The defendants then aligned themselves with the submission of learned counsel for the claimant on the issue of shifting of the burden of proof as provided for in sections 131 – 134 of the Evidence Act 2011. For the interpretation of the above provisions of the Evidence Act, the defendants referred the Court to Benignus Duru v. Jonathan Nwosu [1989] 4 NWLR (Pt. 113) 24 at 42 where Nnamani, JSC held as follows – It seems clear to me that subsection 1 deal with the burden on the plaintiff to introduce evidence, what you might call prima facie evidence. Sub-section 2 would on the face of it suggest that once the plaintiff produces evidence to establish the case he is making, the onus shifts to the defendant for it talks of “the party against whom judgment would be given if no more evidence were adduced”. On a close examination of this subsection, however, it is in my view that it does nothing of the sort. I think this sub-section deal with the shift in the onus which goes from one side to the other in civil matter until the end of the proceedings when the case must be decided on the balance of probabilities. This meaning flows from the use of such words at the beginning of the sub-section as “evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established” and at the end, and so on successively, until all the issues in the pleadings have been dealt with. To the defendants, from the evidence before this Court, the claimant alleged that he handed over to Mr. Olufemi Clifford in the presence of Mr. Femi Obisesan. The claimant failed to call either Mr. Olufemi Clifford or Mr. Femi Obisesan to testify in this suit. The defendants in establishing their case called Mr. Olufemi Clifford (the sole witness of the defendants), who has rebutted the evidence of the claimant in this suit by saying that the claimant did not hand over to him. That the burden of proving this has shifted back to the claimant. The claimant failed to discharge this burden of proof and failed to establish his case on preponderance of evidence. Also on the issue of dismissal, that the defendant placed credible evidence before the Court to the effect that the claimant in his wisdom left the 1st defendant’s company without any notice of his intention to leave. Finally, the defendants urged the Court to dismiss the claim of the claimants and uphold the counterclaim of the defendants/counterclaimants on the strength of the law and facts copiously placed before the Court. In considering the merit of the case, the issue before the Court is whether the claimant proved his case; in like manner, there is the issue whether the defendants are entitled to their counterclaims. I will address the claims of the claimant first before the counterclaims of the defendants. Before going into the merit of the claims, I must quickly state that the argument of the claimant that DW did not give direct evidence is erroneous. Under cross-examination and re-examination, DW testified how he was called by the 1st defendant, how he met the claimant in the office of the 1st defendant, how the claimant confided in him about the frosty relationship between him and the 2nd defendant, how he had discussions with the claimant on the issues between him and the defendants, etc. All of this shows that DW was directly in the know as to the events pertaining to this case. His evidence is, therefore, not hearsay as argued by the claimant. The issues he testified on are relevant to the case at hand. This naturally makes him a competent witness to testify in this case; and I so find and hold. Secondly, the further argument of the claimant that the defendants did not call the 2nd defendant to testify beats reason. A defendant is not expected to assist a claimant to prove his case. The claimant must prove his case on the strength of his evidence, not on the failings of the defendant. I now turn to the merit of the claims of the claimant. There is no controversy that there was an employment relationship between the claimant and the defendants. Exhibit BOA 1, which is also Exhibit D1, is the letter of employment with the terms and conditions stipulated therein. In particular, clause 2 of the terms and conditions of employment makes provision for termination of this contract of employment in the following words – Either party could terminate this appointment by giving two weeks’ notice in writing or payment in lieu of notice during the probation period. Upon confirmation, one month notice in writing or payment in lieu by either party. I need to point out that by Akinfe v. UBA Plc [2007] 10 NWLR (Pt. 1041) 185, a contract of service is the bedrock upon which an aggrieved employee must found his case; he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. See also Afribank (Nig.) Ltd v. Osisanya [2000] 1 NWLR (Pt. 642) 592 CA. The claimant’s claims are for N60,000 being salary for month of April 2012, N30,000 being payment in lieu of the two weeks’ notice the defendants failed to give to him before terminating his employment, N1,000,000 general damages and cost of this action which he estimated to be N1,000,000 only. From these claims, the case of the claimant is that it was the defendants who terminated his employment without giving him the requisite two weeks’ notice. But is this really the case? This remains the question. Now, Exhibit BOA 3, the letter of the claimant’s solicitor to the Managing Director of the 1st defendant, in the second paragraph, talks of “…when our client left your employment almost a month ago”, before proceeding, in the third paragraph, to talk of “You will recall that you hurriedly verbally disengaged our client from the service of your company despite entreaties to the contrary”. The same third paragraph still talked of the claimant having “left your employment”. By Exhibit D2 dated 12th March 2012, the claimant on his own volition resigned his appointment with defendants with effect from 27th March 2012. The claimant acknowledged this fact under cross-examination. On 20th March 2012, the claimant withdrew his resignation vide Exhibit D3, tendering an unreserved apology in the process. The direct evidence of DW who was in the premises of the defendants on 20th April 2012 is also relevant here. Under re-examination, DW testified as follows – On 20th April 2012, the 2nd defendant called me to say he has issues to discuss with me. When I got to the office, he reported the claimant that he gave him an assignment for almost 2 months and he was unable to do it. He said he asked him to compile the income and expenditure of the company based on available data and that he gave him a memo to that effect. On that basis, I went to the claimant’s office. I saw the statement the claimant prepared. I made some corrections and asked him to recopy it in his own handwriting and submit same to the 2nd defendant. He did this and the 2nd defendant accepted it as correct. On coming back, the claimant told me he was no longer interested in the job. That the 2nd defendant’s “wahala” is enough for him. He said he was leaving the employment. I advised him not to, but that if he must, he should write formally. He refused and left. Two things are evident from the testimony of DW: the claimant left the service of the defendants on his own volition; and DW assisted the claimant in the work he was employed to do, suggesting a measure of incompetence on the part of the claimant. In any event, Exhibit D2 and the acknowledgement of the claimant under cross-examination suggest that the claimant has the penchant for rash decisions such as the decision to resign, and the withdrawal of the resignation. In withdrawing his resignation vide Exhibit D3, the claimant tendered an unreserved apology. What was he apologizing for if all along he thought he was in the right? Exhibit BOA 5 demanded a report from the claimant and in the process stated that before the assumption of the claimant “as Admin/Accounts Manager, the state of the accounts was not in total disarray and I do not see any reason why it should take you two months to set the records straight for the growth of the company”. The claimant denied this charge vide Exhibit BOA 6 and asked that “[t]he external Auditor should be called to examine the state of the accounts”. The external Auditor is DW who has testified that he had to assist the claimant to do his work. Given all of this, I find and hold that – 1. The claimant left the services of the defendants on his own volition, not that he was verbally dismissed as he claims. 2. For the avoidance of doubt, the defendants did not terminate the employment of the claimant. 3. In leaving the services of the defendants on his own volition, the claimant did not give the requisite two weeks’ notice as per clause 2 of his letter of employment, Exhibit BOA 1, which is also Exhibit D1. 4. The claimant exhibited a measure of incompetence in doing his job with the defendants; and this is irrespective of the evidence of DW under cross-examination that his auditing firm did not find the claimant wanting throughout his service with the 1st defendant. The claimant is accordingly not entitled to any of the reliefs he claims. In any case, by Exhibit BOA 1, the claimant’s annual salary is N720,000. This puts the monthly salary at N60,000, which is what the claimant is claiming as per relief a) in his complaint i.e. the salary for the whole month of April 2012. Now the evidence before the Court is that the claimant left the services of the defendants on 20th April 2012. How come then the claimant is claiming for the whole month instead of 20 days? In leaving the services of the defendants in the manner that he did, what the claimant has done is tantamount to an employee who leaves the service of an employer with immediate effect. Such an act, according to the case of WAEC v. Oshionebo [2006] 12 NWLR (Pt. 1994) 258 CA, like the tendering of a letter of resignation by an employee, carries with it the right to leave the service automatically without any benefit subject to the employee paying any of his indebtedness to his employer. See also Oyewumi Oyetayo v. Zenith Bank Plc [2012] 29 NLLR (Pt. 84) 370 at 424 – 425. This means that even for the 20 days that the claimant worked in April 2012 (the claimant left the defendants on 20th April 2012), he is not entitled to be paid for those days. I now turn to the defendants’ counterclaims, which are for – 1. One Million Naira (N1,000,000) only being cost of this action in terms of the professional fee of counsel to the claimant as so demanded by counsel from the claimant. 2. Two Million Naira (N2,000,000) only for breach of contract between the parties as contained in the employment letter dated 1st February 2012. In the first place, I am not aware of any rule of law that permits the professional fee of a lawyer to be claimed as a counterclaim in an action. I had in open Court asked counsel for authority for this and was given none. I consequently hold that the counterclaim for professional fee of N1,000,000 by the claimant is spurious and gold-digging. It is accordingly rejected and hence dismissed. As regards the claim for general damages, the defendants had argued that the law is that breach of contract is actionable per se and would entitle the aggrieved party to damages. What counsel to the defendants did not, however, tell the Court is the measure of damages awardable for such a breach. Counsel to the defendants did not show to the Court how he came about N2,000,000 as the measure of damages. Now, by Afribank (Nig.) Plc v. Osisanya (supra), the quantum of damages awardable in the case of wrongful termination of a contract of employment is what the employee would have earned if proper notice had been given. The Court of Appeal cases of Araromi Rubber Estate Ltd v. Orogun [1991] 1 NWLR (Pt. 586) 302, CBN v. Amika [2000] 13 NWLR (Pt. 683) 21, Geidam v. NEPA [2001] 2 NWLR (Pt. 696) 45, Evans Brothers (Nig.) Pub. Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564, Daodu v. UBA Plc [2004] 9 NWLR (Pt. 878) 276 and FMC, Ido-Ekiti v. Olajide [2011] 11 NWLR (Pt. 1258) 256 all held that where there is written provision for terminating the contract of employment, and there is a breach of the written provision, what the employee would be entitled to would be the salary for the period of the notice which the employer would have given as notice to terminate the employment of the employee. The case of Mr. Jerry Ajirioghene Ovoh v. Reliance Telecommunication Ltd (Trading as Zoom Mobile) [2013] 32 NLLR (Pt. 91) 123 at 150 – 151 went on to hold that where a party, be it the employee or employer, terminates an employment contract with immediate effect, even where there is no provision for payment in lieu of notice, the offending party would bear the corresponding monetary repercussions of payment in lieu of notice. All of this means that where it is the employee who wrongly terminated the contract of service, the quantum of damages would be what the employer would have gained if the proper notice had been given. Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78 CA recognized the reciprocity in rights as between the employer and the employee when it comes to the right to terminate a contract of employment by either party and concluded by stating that the only situation where a party to a contract of employment can successfully seek remedy in a Court of law is when the terms of employment are breached. I found and held earlier that it was the claimant who left the services of the defendants on his own volition without giving the requisite two weeks’ notice as per clause 2 of the terms of his employment in Exhibit BOA 1/D1, or paying two weeks’ salary in lieu of notice. In this regard, it is the claimant who is expected to pay to the defendants two weeks’ salary in lieu of notice. The monthly salary of the claimant was N60,000. Two weeks’ salary comes to N30,000. The measure of damages that the defendants are entitled to, therefore, is the two weeks’ salary in lieu of notice which is N30,000. On the whole and for the avoidance of doubt, I hereby order as follows – 1. The claimant has not been able to prove his case. His claims therefore lack merit. 2. The counterclaim of the defendants succeeds only in part; and in that respect only in terms of the payment of two weeks’ salary in lieu of notice. The claimant shall, therefore, within 30 days of this judgment, pay to the defendants the sum of Thirty Thousand Naira (N30,000) only being two weeks’ salary in lieu of notice. 3. Cost of this suit is put at Sixty Thousand Naira (N60,000) only payable by the claimant to the defendants. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip