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REPRESENTATION R. E. Obakpolor for the Claimant. G. O. Ukwoma for the Defendant. JUDGMENT The Claimant in this case filed his General Form of Complaint dated 14th of May 2012 and accompanied same with a Statement of Facts of the same date in which he sought the following reliefs: 1. A declaration that the indefinite suspension of the claimant was wrongful, unlawful, null and void. 2. A declaration that the purported resignation by the Claimant was under duress and therefore unlawful, null and void and of no effect whatsoever. 3. A declaration that the purported resignation by the Claimant and Acceptance of Resignation by the Defendant amount to constructive dismissal and therefore a fundamental breach of contract, unlawful, null and void and of no effect whatsoever. 4. A declaration that the Claimant’s employment with the Defendant is still subsisting. 5. An order compelling the Defendant to render full and proper accounts as at the date of this action of all salaries and entitlements due to the Claimant from the Defendant together with a statement of all the Claimant’s indebtedness and the amount paid to the Claimant subject to the directions for verification of this Honourable Court. 6. An order of injunction compelling the Defendant to pay the sum of Five Million, One Hundred and Seventy Six Thousand, Four Hundred and Sixty Four Naira, Thirty Three kobo (N51,176,464.33) only, being the Claimant’s outstanding salaries and entitlements remaining unpaid as at 23rd February, 2010, into an interest bearing account with a reputable financial institution other than the Defendant within the jurisdiction of this Court pending the final determination of this action. 7. Damages for breach of contract of employment as follows: a. The sum of Five Million, One Hundred and Seventy Six Thousand, Four Hundred and Sixty Four Naira, Thirty Three Kobo (N51,176,464.33) only, being the Claimant’s outstanding salaries and entitlements as at 23rd February, 2010. b. The sum of N4,200,000.00 (Four Million Two Hundred Thousand Naira) as salary per annum from 24th February 2010 until final judgment. c. Interest on the sum in (a) above at the rate of 21% per annum from July 2009 when the Claimant was suspended until judgment is entered and thereafter at the rate of 10% per annum until final liquidation. d. Interest on the sum in (b) above at the rate of 21% per annum from 24th February, 2010 until judgment is entered and thereafter at the rate of 10% per annum until final liquidation. e. The sum of N20,000.000.00 (Twenty Million Naira only) being damages for the pains, trauma, inconvenience, indignity, loss of business expectation, loss of opportunities and economic loss suffered by the Claimant. 8. Cost of this action. 9. Further or other reliefs, including all further necessary or appropriate accounts, inquiries and directions. Other processes which accompanied the writ included List of Claimant's witnesses and List and copies of Claimant's Documents to be relied on at trial. The Defendant in denying the Claimant’s claim filed its Statement of Defence and Counter-claim dated 31st October, 2012, which was amended on the 16th December, 2013 by an order of this Honourable Court wherein it Counter-claimed against the Claimant for: i. Payment of the sum of N2,543,886.33 being the outstanding accrued indebtedness of the Claimant to Defendant/Counter-claimant as at 28th February, 2011 on his account with Bank PHB Plc and which account was taken over by the Defendant/Counter-claimant. ii. Interest on the said sum of N2,543,886.33 at the rate of 21% per annum from 1st March, 2011 until judgment and thereafter at the post judgment rate of 18% per annum until the debt is fully liquidated. iii. Cost of the action. The Defendant's amended Statement of Defence was also accompanied by all requisite processes including copies of the documents to be relied on at the trial. The case for the Claimant was that he was by an offer letter dated 21st March, 2007 offered employment by the Defendant then Bank PHB; that he accepted the offer by appending his signature on the duplicate copy of the Defendant’s terms of employment as directed by the Defendant; that sometime in May, 2009 he was issued query at the instigation of one Mr. Seyi Olajumoke the Business Branch Manager (BBM) of the Defendant Abule Egba branch; he was issued the said query on the alleged ground that the Claimant inflated the total cost of air fresheners purchased by the defendant branch from N14,400.00 to N15,000.00 and also that the Claimant forged the signatures of his co-employees on the expense ticket raised for the payment of the air fresheners supplied. Claimant averred further that despite his response to the query refuting the allegations of inflation and forgery, he was suspended from duty indefinitely without observance of due process as laid down in the Defendant’s Human Capital Staff Policy Handbook which is the Defendant’s code of conduct, rules and regulations; that he was placed on indefinite suspension without pay from 7th July, 2009 till his purported resignation on 23rd February, 2010 and that he filed this suit in challenge of the Defendant's breach of due process and his constructive dismissal by the Defendant. The hearing of this case commenced on 11/11/13 when the Claimant testified as CW1. While being led in evidence, CW1 adopted his written deposition on oath dated 18/7/12 and his further written statement on oath of 30/1/13 and tendered 18 documents admitted and marked as Exh. DO1-Exh. DO18. The Exhibits are as follows: Claimant's letter of employment dated 21/3/07 (Exh. D1); Defendant's Human Capital Staff Handbook dated January 2006 (Exh. DO2); Claimant's response to query (Exh. DO3); Defendant's Internal Memo of 7/7/09 (Exh. DO4); Claimant's letter of 5th January, 2010 (Exh. DO5); Letter of Resignation of 23/2/10 (Exh. DO6); Acceptance of Resignation of 22/2/2010 (Exh. DO7); Claimant's letter to MD/Chief Executive Officer (Exh. DO8); Breakdown of Claimant's outstanding salaries as at 23/2/10 (Exh. DO9); Claimant's salary Account statement from 23/7/09 (Exh. DO10); Claimant's share Purchase Form dated 19/12/07 (Exh. DO11); Share Purchase Loan Agreement of 19/12/07 (Exh. DO12); Claimant's Pension Account Statement as at 29/4/12 (Exh. DO13); Letter of demand to Defendant dated 7/7/10 (Exh. DO14); Defendant's letter dated 9/7/10 (Exh. DO15); Letter dated 27/2/10 (Exh. DO16); Claimant's salary Account from 31/10/08 to 28/2/11 (Exh. DO17); and Claimant's Salary Account Statement from 31/10/08 to 28/2/11. Under cross examination on 12/11/14, CW1 testified that he was once employed as Research Analyst, that he joined Access Bank in 2005 as Market Analyst; that he holds a Master's Degree in Business Administration in Financial Management from the Lagos State University; that as a Chartered Banker he agreed that high level of integrity is required in banking sector and that signature is very important. According to the witness, expense ticket of =N=15,000.00 was issued by him on 27/5/09; that one Chioma Ogbuzor signed as Service Leader; that the raising of the ticket was to purchase air freshner for the Bank; that the air freshner had been supplied before the expense ticket was raised and that when the Manager saw them he gave his consent. Witness testified that there are usually 3 signatories to an expense ticket from the person who raised it to approval. According to him, the 3 tickets were raised for the same transaction for the same amount of =N=15,000.00; that all the tickets were properly signed and approved; that the 2nd ticket was taken to Business Manager for approval; that the ticket he signed on behalf of others carried ''f''' as indicating it was signed for someone. Witness confirmed that there was a difference between signing for and forging a person's signature; that he did not state in the reply to query issued to him that he used the word ''f'' while signing the expense ticket. He said that he stated in the reply to the query that he signed for some people; that he had the authorisation of the people to sign for them and that he also stated these facts in the reply to the query. Witness stated that Chioma never denied giving him verbal authorisation; that he agreed that the essence of signing was to prevent fraud and that it was not normal for one person to sign, countersign and approve a transaction. It was also the case of the Claimant in cross examination that his employment with Bank PHB still existed; that he has a letter of employment from Keystone Bank; that he did not believe that Bank PHB and Keystone Bank are different; that he was aware that Defendant took over the assets and liabilities of Bank PHB; that he was aware there was a change of name of the Bank but did not know when the change of name took place. Claimant stated that he was in Court because he wanted redress for wrongful termination of his employment; that he took a loan facility and that deductions were to be made on his salary to service the loan and that at the time his employment was terminated he had not fully paid the loan. In re-examination, Claimant testified that he was servicing the loan before his employment was terminated; that he was unable to continue to service the loan because his employment was terminated but that as at the time he was testifying he was not indebted to the Bank for any amount. On 16/12/13, Defendant opened its case by calling one witness - Stanley Ubani who adopted his written witness statement on oath dated 31/10/12 and tendered 5 Exhibits marked as Exh.SU1-Exh. SU5. These Exhibits are: E-mail Correspondence between Claimant and Bank PHB Plc (Exh. SU1); Claimant's Salary Account Statement (Exh. SU2); Bank PHB Plc's Expense Ticket dated 27/5/09 (Exh. SU3); Bank PHB Plc's disputed signature expense ticket dated 27/5/09 (Exh. SU4) and Sales Invoice No. 0005702 for the purchase of airfreshner (Exh. SU5). The case for the Defendant as reflected in its Amended Statement of Defence and Counter-claim dated 16th December 2013 was inter alia, that the Defendant is a limited liability company and a licensed commercial Bank with its Head Office at No. 1, Keystone Bank Crescent, Off Adeyemo Alakija Street, Victoria Island, Lagos; that it is a not successor, off-shoot or re-incarnation (in whatever form) of Bank PHB Plc; that it was incorporated as a bridge company to take over the deposit liabilities of Bank PHB Plc which was a failing Bank; that when the Defendant in 2011 took over the deposit liabilities of Bank PHB Plc, it did not automatically absorb the staff of Bank PHB Plc. Rather, that some of the former staff of Bank PHB Plc applied for employment and the Defendant offered employment to those that met its qualifications; that the Claimant was an employee of Bank PHB Plc between the 21st of March 2007 and 23rd of February 2010; that Bank PHB Plc formerly had its Head Office at No. 1, Bank PHB Crescent, off Adeyemo Alakija Street, Victoria Island, Lagos and that sometime in 2011Bank PHB Plc was nationalized by the Central Bank of Nigeria; that from Records of Bank PHB Plc, the Claimant was employed by Bank PHB Plc on the 2nd of April 2007 as a Senior Executive Assistant and was deployed to Asset Liability Management and Market Risk Department; that the Claimant vide a letter dated 28th of January, 2009 was re-deployed to Commercial Banking Unit (Marketing) Abule Egba Branch as a Market Risk Officer; that the claimant was never a staff of the Defendant, neither did it offer any employment to the Claimant. Under cross examination, witness stated that he had worked for the Defendant for about 2 years; that Defendant was not formerly known as Bank PHB; that he worked for Bank PHB but did not know if Bank PHB had been liquidated or wound up; that NDIC took over the assets of Bank PHB and certain liabilities. Witness stated that he had an account with the Defendant since 2008 and has not closed same; that Defendant has Human Capital Management Manual ; that he did not know if the disciplinary procedure in the Manual was discretionary; and that a letter of suspension required Claimant to report to office every day. According to the witness, Defendant set up Regional Disciplinary Committee as well as a Management Disciplinary Committee as administrative panels; that in Lagos Region, the Management Disciplinary Committee sits as Regional Disciplinary Committee; that Claimant was only invited to the Management Disciplinary Committee; that Claimant was invited for the second time to the Management Disciplinary Committee on 20/11/09 but did not show up there. Witness testified that claimant was not in default of the loan he took because the loan was deducted from source; that 2 expense tickets were issued for purchase of air freshner; that he did not know the signatures of the officers concerned with the expense tickets; that he saw an e-mail of the claimant admitting forging signatures of those officers and in which the Claimant apologised that such would not happen again and that from records there was no Police involvement except internal investigation. According to the witness, he was aware that claimant wrote to the Divisional Director of Human Capital and Managing Director Chief Executive Officer of the defendant; that he did not prepare the letter of resignation signed by the claimant; that the Bank was at liberty to waive the length of notice due to it from its employee who desires to exit the Bank and that the differences in the dates on the letter of resignation and that of acceptance could have been typographical error. There was no reexamination. Parties closed their respective cases and learned Counsel were directed to file their final written addresses for adoption. Defendant's final written address was dated and filed 24/2/14. In it learned Counsel raised 4 issues for determination as follows: 1. Whether the claimant has established any case against Keystone Bank Limited as to entitle him to his claims. 2. Whether the Claimant has proved that there was a contract of employment as to enable him to damages 3. Whether the Claimant has proved that he is entitled to special damages. 4. Whether the Claimant is indebted to the Defendant in the sum of =N=2,543,556.33 per its Counter-claim. On issue 1, learned Counsel submitted that the whole of claimant's claim is based on an alleged contract of employment between him and the Defendant. Counsel argued that in a declaratory action that the termination of his appointment is a nullity, an employee must prove (a) that he is an employee of the Defendant, (b) How he was appointed and what are the terms and conditions of his appointment, (c) Who can appoint him and who can remove him and (d) What are the circumstances under which his appointment can be determined. Counsel cited Moronfolu v. Kwara State College Technology (1990)4 NWLR (Pt. 145) 506 at 525-527. Counsel, relying on Exh. DO1 claimant's letter of employment, submitted that although claimant alleged in his statement of facts that Defendant was the successor company to Bank PHB, it none the less failed to lead any evidence in support of his assertion. Counsel cited Section 131 (1) of the Evidence Act, 2011and the case of Okelola v. Adeleke (1999)1 NWLR (Pt. 585)55 (CA) on the principle of law that he who alleges must prove. Arguing further, Counsel stated that the law is straightforward that averments in pleadings do not constitute evidence or proof and that averments in pleadings must be proved by credible evidence unless otherwise admitted, citing Idesoh v. Ordia (1997)2 SCNJ 175 at 183. Counsel submitted that no document was tendered to show any contract or agreement binding the Claimant and the Defendant; that all the documents tendered in evidence do not bear the name of the Defendant. Counsel thus urged the Court to resolve this issue in favour of the Defendant and against the Claimant. On issue 2, learned Counsel repeated his argument and submissions in respect of issue 1. Counsel submitted that Claimant has not shown from the evidence adduced that he is entitled to damages for breach of contract of employment since there was no contract of employment between him and the Defendant. Counsel thus urged the Court to hold that there is no contract of employment between the Claimant and the Defendant the breach of which entitles the Claimant to damages. He urged the Court to resolve this issue in favour of the Defendant. On issue 3, Counsel submitted that special damages must be pleaded in detail and strictly proved, citing Ngilari v. Mothercat Ltd (1999)13 NWLR (Pt. 636) 626 at 647 and Prime Merchant Bank Ltd v. Man-Mountain Co (2000)6 NWLR (Pt. 661) 524 at 530. Counsel submitted that Claimant had failed to establish his case to be entitled to special damages. With respect to issue 4 which is whether Claimant is indebted to the Defendant in the sum of =N=2,543,556.33 as part of its counter-claim, learned Counsel submitted that Claimant admitted under cross examination that he was availed a loan facility by Bank PHB Plc; that he serviced the loan by monthly deductions from his salary; that at the time his employment ceased he had not fully paid off the loan and that in fact he was indebted to Bank PHB by virtue of the loan. Counsel submitted that these facts admitted need no further proof citing Section 123 of the Evidence Act 2011and Bendel Pilgrims Welfare Board v. Irawo (1995)1 NWLR (Pt. 369) 118 at 124. Counsel submitted that Claimant has by his own admission established the loan facility he was granted and the fact that the loan was still pending. Learned Counsel referred to paragraphs 4 and 5 of the Amended Statement of Defence, paragraphs 5, 6 and 55 of the Defence Witness Statement on Oath dated 31/10/12 and paragraph 60 of the Amended Statement of Defence and Counterclaim. He urged the Court to find in favour of the Defendant/Counter-claimant. Learned Counsel finally urged the Court to find in favour of the Defendant Counter-claimant. Claimant's final written address was dated and filed 19/3/14. In it, learned Counsel submitted 6 issues for determination as follows: 1. Whether the Defendant proved its claim that it is distinct from Bank PHB Plc on the ground that it took over only the deposit liabilities of the failed Bank 2. Whether considering the entire circumstances leading to this suit and the evidence before this court both oral and documentary, the alleged resignation of the claimant can be held to be voluntary. 3. Whether the act of the Defendant of easing out the claimant from its employment did not amount to constructive dismissal of the claimant and in breach of best international labour standards. 4. Whether the Defendant observed due process as laid down in its Human Capital Management Policies Manual - Exh. DO2, in the suspension and constructive dismissal of the claimant and whether it complied with international best practices. 5. Whether the Claimant proved his case before this Honourable Court and therefore entitled to his claims before the court 6. Whether the Defendant proved its Counter-claim to entitle it to the grant of same. On issue 1, counsel submitted that Defendant having asserted that it took over only the deposit liabilities of Bank PHB excluding assets and other liabilities then the burden of proof is on it having asserted same. Counsel cited Jolasun v. Bamgboye (2010)18 NWLR (Pt. 1225) 285 at 308.Counsel argued that Defendant averred that it was incorporated to buy over the deposit liabilities of Bank PHB Plc yet there is no document before the Court evidencing such a buy over to lay credence to the Defendant's claim. He submitted that Defendant was in a position to produce such documents and that failure to produce same is evidence of the fact that such document will not be favourable to the Defendant. Counsel referred to Section 167(d) of the Evidence Act, 2011 and Igbeke v.Emordi (2010)11 NWLR (Pt.1204) 1 at 35. Counsel submitted that Defendant failed to prove that it was distinct from Bank PHB Plc on the ground that it took over only the deposit liabilities of the failed Bank. He urged the court to resolve this issue in favour of the Claimant and hold that the Defendant was formerly Bank PHB Plc. On issue 2, Counsel submitted that the purported resignation of the Claimant vide Exh. DO6 was not voluntary, that it was orchestrated by the Defendant who ensured its execution by compelling the claimant to append his signature on the said Exh. DO6 already prepared by the Defendant. Counsel urged the court to resolve this issue in favour of the Claimant and to hold that Exh. DO6 was not made voluntarily by the Claimant and that by reason of coercion, it was null, void and of no effect. On issue 3, Counsel argued that Defendant's act vide Exhibits DO6 and DO7 amounted to constructive dismissal of the claimant in order to cover for the Defendant's false allegation against the claimant. Learned Counsel therefore submitted that the claimant was eased out by the Defendant to thwart proper investigation of the allegation against Claimant which would have absolved Claimant of same since the Defendant knew the allegation to be totally false and malicious. It was the argument of Counsel that the constructive dismissal of the Claimant contravened Article 4, International Labour Convention No. 158 on Termination of Employment which provides that ''... the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking or service''. Learned Counsel urged the Court to resolve this issue in favour of the Claimant. Issue 4 is whether the Defendant observed due process as laid down in its Human Capital Management Policies Manual-Exh.DO2, in the suspension and constructive dismissal of the claimant and whether it complied with international best practices. Counsel submitted that while Defendant claimed that suspension of the Claimant was in line with Article 2 Clause 2.1.6 of Exhibit DO2, the procedure adopted was not in tandem with the said Exh. DO2 regarding the procedure to follow. Relying on CBN v. Dinneh (2010)NWLR (Pt. 1221) 169 submitted that an employer in adhering to the dictates of fair hearing must still follow the procedure set down in its regulations or condition of service in order to properly dismiss an employee against whom misconduct bordering on criminality is alleged. Learned Counsel urged the court to find in favour of the Claimant. On issue 5, learned Counsel reviewed claimant's pleadings and referred the court specifically to paragraphs 12, 13, 17-20 of both his statement of facts and witness statement on oath dated 15/7/12 as well as paragraphs 9 and 10 of the Claimant's further statement on oath and the exhibits tendered and submitted that claimant has proved his case against the Defendant. Relying on Momoh v. CBN (2007)14 NWLR (Pt. 1055) 504 at 531 and Ibekwe v. I.S.E.M.B (2009)5 NWLR (Pt. 1134) 234 at 252 counsel urged the Court to hold that the Claimant has proved his case against the Defendant to be entitled to the claims sought. The last issue set out for determination by the Claimant is whether the Defendant proved its counter-claim to entitle it to the grant of same. Learned Counsel pointed out that although Defendant claimed that it is not the same as Bank PHB, yet seeks to recover the sum of =N=2,543,886.33 claimed to be owed and due to the said Bank PHB by the claimant. It was the argument of counsel that the facility leading to the alleged outstanding loan arose from staff loan advanced to the claimant by virtue of Exh.DO12; that the facility granted claimant was meant purposely and exclusively for the purchase of the Bank's shares was a salary advance which was repayable by deductions from claimant's salary account and that claimant's monthly salary was the collateral for the facility granted. Learned Counsel referred to Clause 4 of Exh. DO12. Counsel further submitted that claimant was servicing the facility from his salary account until his indefinite suspension without pay and subsequent termination of his employment in July 2009. It was the argument of Counsel that Defendant kept on charging interest on Claimant's salary account during the period of 8 months that it placed Claimant on suspension without pay knowing fully well that the facility was tied to claimant's salary. Counsel submitted that deductions which accrued on the claimant's account during the period of indefinite suspension without pay could not be claimed to have arisen legally and hence could not be claimed and that Defendant having created the default and illegally too cannot benefit from the said illegality. Counsel submitted further that the Defendant's witness statement on oath dated 31/10/12 having been amended by statement on oath dated 11/11/13 by order of court, the original statement on oath adopted by Defendant as its evidence in chief was no longer material and therefore goes to no issue. Learned Counsel relied on A.S.E.A. v. Ekwenem (2009)13 NWLR (Pt. 1158) 410 at 435-436 where the Supreme Court held that ''once pleadings are duly amended by an order of court what stood before amendment is no longer material before the court and no longer defines the issue to be tried before the court...''. Counsel thus finally submitted that Defendant has failed to prove its counter-claim and urged the court to so hold. I have read and understood all the processes filed in this case. I also did evaluate all the exhibits tendered and admitted. In addition, i listened with understanding to the oral submissions by learned Counsel in this case in open Court. Having done all this, i here set down 2 main issues for the determination of this case. These are - 1. Whether the Claimant is entitled to the reliefs sought, and 2. Whether the Defendant/Counter-claimant has proved its counter-claim. Before l examine these 2 issues, l need to point out that Learned Counsel to the Defendant on 8/4/14 filed a 9-page document titled Defendant's Reply on Point of Law to the Claimant's Final Address' . That document was dated 8/4/14. It is doubtful if the said Reply on points of law actually fits in to a document so called. That document and the contents of same did not match. What learned Counsel did was to simply rephrase some of the issues he had raised in his final written address and reargued same. That is certainly not the purpose a reply on point of law is meant to serve. Appellate Courts have stated the position in a host of judicial decisions. The position is that '... A Reply Brief is necessary and usually filed when an issue of Law or argument raised in the Respondents Brief calls for a Reply. Where a Reply Brief is necessary, it should be limited to answering new points arising from the Respondent's Brief'. See Cameroon Airlines v. Mr. Mike E. Otutuizu (2011) LPELR 827 (SC). The purpose and purport of a reply brief is to address fresh points raised in respondents brief of argument and not to introduce fresh point, see Basinco Motors Limited v. Woermann-Line & Anor. (2009) LPELR 756 (SC) A reply brief is not meant to have a second bite of the cherry, see Harka Air Services (Nig.) Limited v. Keazor Esq (2011) LPELR 1353 (SC). The said Reply on Points of Law in this case is not of much assistance to the court in deciding this case. Suffices to simply say that learned Counsel to the Claimant has merely used the guise of reply on point of law to have a second bite of the cherry in this case. Now coming to issues set for determination, the first claim of the Claimant was for a declaration that the indefinite suspension of the Claimant was wrongful, unlawful, null and void. For an employee to succeed in an action challenging his suspension it is essential for him to establish the existence of employer/employee relationship between him and the Defendant. This is essential for a person not being an employee of another cannot exercise any disciplinary control such as suspension on that other person. In proof of his claim, claimant tendered Exh. DO1 which is letter of offer of employment. That letter was dated 21/3/07. It was signed by one Oshoke Imoagene, Group Head, Human Capital Management of Bank PHB. Indeed all the 18 Exhibits tendered by the Claimant one way or the other bore the name of and references to Bank PHB Plc. The Defendant/Counterclaimant in this case is Keystone Bank Limited. The only nexus bringing the Defendant into this suit, if at all, is paragraph 2 of the statement of facts of the claimant where claimant averred that Defendant was a limited liability company formerly known as Bank PHB. In paragraph 2 of the Reply and Defence to the Defendant's Statement of Defence and Counterclaim dated 31/10/12 Claimant further averred that Defendant was formerly Bank PHB. There is no evidence before me to back up these assertions. The law is trite that averment in pleading is no evidence and cannot be so construed. Averments are merely to set out the evidence that a party is likely to present so that the other side would not be caught unaware or unprepared. Averments in pleadings must be proved by evidence except, however, where they are admitted by the other party, see Nigerian Advertising Services Ltd & Anor. v. UBA Plc & Anor (2005)LPELR-2009 (SC). I find no admission in whatever form by the Defendant of the above assertion by the Claimant. Indeed, in paragraph 3 of its Amended Statement of Defence and Counterclaim, Defendant stated in clear and unambiguous term that it was not a successor, off-shoot or re-incarnation in whatever form of Bank PHB. It is interesting to note that indeed the Claimant did not put forward any evidence to prove his averment that Defendant was formerly Bank PHB not even a newspaper information. It is my opinion that certainly there must be documents and perhaps Board papers relating to change of name from Bank PHB to Keystone Bank Limited, the Defendant. I dare say in addition that such change of name must of necessity be filed with the Corporate Affairs Commission as statutorily required. I find no evidence in support of the assertion that Defendant was formerly Bank PHB and hence the declaration sought could not and will not be made by this Court. The declaration sought by the Claimant against the Defendant is here refused. Claims 2 -9 of the claimant can only succeed with proof of contract of service or of employment between the Claimant and the Defendant. I have found and held in relation to claim 1 that no such contract existed between the parties. I have also found and held that there was no evidence before me in proof of the assertion that Defendant was formerly Bank PHB. That being the case, the remaining claims of the claimant are bound to fail. All the claims of the claimant not having been proved by credible evidence are dismissed in their entirety. The second issue for determination is whether the Defendant is entitled to its counter-claim. Defendant counterclaimed the sum of =N=2,543,886.33 being the outstanding accrued indebtedness of the Claimant to Defendant/Counterclaimant as at 28/2/11 on his account with Bank PHB and which account was taken over by Defendant/Counterclaimant. Learned Counsel argued that Defendant was not a successor to the Bank PHB but rather that it was established as a bridge Bank incorporated by the Nigerian Deposit Insurance Corporation and the Central Bank Nigeria to take over and administer deposits and liabilities excluding staff related liabilities of Bank PHB which was classified as a failed Bank. Counsel referred to paragraphs 4 and 5 of the Amended Statement of Defence, paragraphs 5, 6 and 55 of the Defendant's witness statement on oath dated 31/10/12. Again unfortunately, the contents of those paragraphs of the pleadings referred to are mere averments. There is no single document before me attesting to the assertion of the Defendant as to its relationship to Bank PHB. If of a truth, Defendant was incorporated as a bridge Bank to take some steps regarding the defunct Bank PHB could it be that there are no documentations respecting same in proof of that fact? It is my view that at least the documents of incorporation of Defendant will make some reference to that fact. It is interesting to note that while Defendant denied all forms of liabilities to the Claimant on the basis that it was not the employer of the Claimant and not a successor to Bank PHB, yet it was willing to make a successful counterclaim on the claimant for a debt allegedly owed to the Bank PHB. Defendant has not proved the averments contained in its amended statement of defence and counterclaim to be entitled to the counterclaim sought. The law is trite that he who asserts must prove, see section 131 of Evidence Act, 2011. This claim not having been proved by credible evidence, it is dismissed accordingly. The second counter-claim is for interest on the said sum of =N=2,543,886.33 at the rate of 21% per annum from 1st March, 2011 until judgment and thereafter at the post judgment rate of 18% per annum until the debt is fully liquidated. The counterclaim for the principal sum having failed and dismissed, this claim for interest must also fail. This is because the principal sum is the foundation upon which the claim for interest is based. Thus, that foundation having been found to be weak and faulty every other thing built on it is bound to collapse. The counter-claim for interest therefore fail and is also dismissed. The third counterclaim is for cost of this action. Counterclaim 1 and 2 of the Defendant/Counterclaimant having failed there exists no basis upon which this court can grant the third item of counter-claim. It is thus refused and dismissed likewise. Finally and for the avoidance of doubt, the entire claims of the Claimant are dismissed for the reasons stated in this judgment. Secondly, the counterclaims of the Defendant are also dismissed for the reasons as contained in this judgment. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge