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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE A. IBRAHIM DATE: 23rd June, 2015 SUIT NO.: NICN/EN/135/2012 BETWEEN: UNITED PARCEL SERVICES LIMITED=================CLAIMANT AND MR DEBO SHOAGA==============================DEFENDANT REPRESENTATION: C.C. Anichukwueze Esq. appeared for the Claimant. O.C. Nwanganga Esq. appeared for the Defendant. JUDGMENT On the 25th day of July 2012, the Claimant in this suit filed a Complaint before this Honourable Court dated same day and claims against the defendant the following reliefs as endorsed on both the Complaint and in paragraph 20 of the Statement of claim: 20. WHEREOF the Claimant claims the following: (i) The sum of N585,056.00 (Five Hundred and Eighty-Five Thousand and Fifty-Six Naira) being the transfer grant paid to the Defendant. (ii) The sum of N1,036,291.65 (One Million, Thirty-Six Thousand, Two Hundred and Ninety-One Naira, Sixty-Five Kobo) being the balance of the car loan granted to the Defendant. Alternatively, the immediate release of the 2002 model Toyota Camry bought in the name of the Defendant by the Claimant until the balance for the car loan is fully paid. (iii) The sum of N289,511.24 (Two Hundred and Eighty-Nine Thousand, Five Hundred and Eleven Naira, Twenty-Four Kobo) being balance of the housing loan granted to the Defendant. (iv) Interest at the rate of 21% per annum from 31st January, 2011 until judgment and at the rate of 15% per annum from the date of judgment till the date judgment sum is finally liquidated. (v) The cost of this action in the sum of N10,000,000.00. Accompanying the Complaint are the Statement of Claim, name of witness, written statement on oath of the witness, list and copies of documents sought to be relied upon at trial. Upon being served with the processes of the Claimant, the Defendant entered appearance on 2nd day of November, 2012 as well as statement of defence and counterclaim dated 8/12/2012 but filed on 10/12/2012. All of these processes were deemed properly filed and served on 11th day of December, 2012. Thereafter the Claimant filed a reply to the Statement of defence and defence to counterclaim dated 11th February, 2013 and filed on the same date; and same was deemed properly filed and served on 21st February, 2013. The case thereafter proceeded to trial. The Claimant called one witness, CW1 and he was cross examined by the Defendant’s counsel. The Claimant also tendered numerous exhibits. The Defendant also gave evidence as DW1 and was cross examined. He tendered several exhibits. At the close of their respective cases, learned counsel to the parties filed final written addresses. The Defendant’s counsel filed his final written address dated 2nd June 2014 on 3rd June 2014. The Claimant’s counsel filed his reply final address on 7th July 2014 but dated 3rd day of July 2014. The defendant’s counsel did not file any reply on points of law. Learned counsel adopted their respective addresses. In his final address the learned counsel for the Defendant formulated and argued the following issues for the court’s determination: 1. Whether or not the claimant is entitled to the sum of N585,056.00 being the transfer grant utilized by the Defendant before the Claimant sent a second transfer letter to the Defendant? 2. Whether or not the defendant is entitled to the reimbursement of the N510,000.00 training/tuition fees the defendant expended on training himself with the approval of the claimant and for the advancement of claimant job? 3. Whether or not the defendant is not also entitled to the refund of the N550,000.00 the defendant used in treating himself and N410,000.00 for valuables lost by the defendant in the robbery incident in claimant’s three day training held in Lagos? 4. Whether or not the Defendant is not entitled to the sum of N500,000.00 being the diverted and unpaid commissions of the defendant from 2008 to 2010? 5. Whether or not the defendant is not entitled to some terminal benefits and if he is entitled whether or not the claimant ought not to deduct such terminal benefits before arriving at the total figure the claimant is demanding from the defendant in the Honourable Court? 6. If any of the answers in issues nos. 2, 3 and 4 are in the affirmative, whether the Honourable Court is not supposed to take them into consideration before concluding whether the defendant is indebted to the claimant to the total sum of N1,910,898.89? 7. Whether any of the two parties in this case are entitled to its costs of litigation? The learned Claimant’s counsel formulated and argued the following issues for the Court’s determination: (1.) Whether considering the circumstances of this suit and evidence before this Honourable Court, the Claimant has proved its claim to be entitled to the reliefs sought in the Statement of Claim dated 23rd July 2013, and the Claimant’s Reply and Defence to Counter-Claim dated 11th February, 2012? (2.) Whether by the evidence before this Honourable Court the Defendant has proved that the Claimant undertook to sponsor his post-graduate study at the Nigerian Institute of Transport Technology (NITT) and thereby entitled to a refund of money he allegedly spent while undergoing the programme? (3.) Whether by the evidence before this Honourable Court the Defendant has shown that he sustained mouth injuries during the alleged robbery incident to entitle him a refund of money allegedly spent in treating himself? (4.) Whether by the evidence before this Honourable Court the Defendant has proved that he lost some personal belongings during the robbery incident; and whether he is entitled to be compensated by the Claimant for the alleged loss of personal belongings? (5.) Whether by the evidence before this Honourable Court the Defendant has proved that there was a diversion and unpaid commission due to him? (6.) Whether by the evidence before this Honourable Court, the Claimant has proved that it expended money securing a legal representation in this matter and thereby entitled to the cost of instituting this action. The facts of the case briefly put are that the Defendant was employed by the Claimant on 1st September, 2006. The Defendant served the Claimant for years without complaint or query. In the course of his employment, the defendant took some loans from the claimant, namely, a car loan and a housing loan all of which were to be repaid from his income with the claimant or from his final entitlement where necessary. Then on 7th December, 2010 the Defendant was informed of his transfer to the Claimant’s Ibadan office as a Sales Executive with an approved Transfer Grant of N585,056.00 upon an existing Claimant’s Policy that the Defendant will refund the grant in any event that he elects to resign from his employment instead of proceeding for the transfer. In the meantime the defendant resigned his appointment with the claimant before settling all his indebtedness. However, the defendant has asserted that it is the claimant that is owing him after all deductions of the loans are made. The claimant also asserted that the Defendant did not only resign from the Claimant’s employment and refused to proceed for the transfer he also refused to refund the transfer grant and blatantly denied any indebtedness to the Claimant, despite several demands for the debts. Therefore the Claimant instituted this suit to recover the indebtedness to the tune of N1,296,286.68 outstanding on the car loan, the housing loan and the Transfer Grant. On his own part the Defendant averred that he has worked for the claimant and like every other worker he applied for soft loan facilities which included a car loan and a housing loan. These, according to the defendant, the Claimant agreed to the loan being repaid through deductions from the Defendant’s salary/final entitlement. In the course of the work, the defendant was redeployed from Business Development to Logistics and Supply where the defendant had no knowledge. He however went on with the job and made it clear that he would attend trainings and appropriate programme to make his work for the company very efficient and effective. He also averred that the claimant approved the request of the defendant to further his education on the area of his new job specification on the agreement that the claimant will be reimbursed after submitting his evidence of study. He added that after the study and presentation of the certificate the Claimant has refused to reimburse the defendant or deduct same from defendant’s termination benefit till this day. Furthermore, he averred that in October, 2010 he was invited to Lagos for further 3 days training and official meeting. While there he was attacked by armed robbers and suffered injuries and lost valuables. He presented medical treatment bills for refund as well as cost of replacement of lost valuables but that has not been honoured by the Claimant. The Defendant further averred that he was posted to the Ibadan Office of the Claimant as Centre Coordinator. He prepared himself and his family to relocate to Ibadan. On informing the claimant of his readiness to move by the defendant, the claimant’s representative handed to the defendant another and different letter of transfer to the same office in Ibadan. The new letter transferred the defendant now, as Sales Executive, other than the previous Centre Coordinator. This new posting was totally rejected by the defendant and the defendant was forced to resign his appointment as he and the claimant could not agree. He added that in resigning the claimant gave adequate notice and also agreed with the superior in the office that the claimant would calculate defendant’s terminal benefits, including all the defendant is being owed by the claimant and defendant indebtedness to the company would be deducted and the balance paid to the defendant. This was not done and the matter is now before the Court. I have carefully considered the processes filed, the evidence led, arguments and submissions of the parties. The issues for determination in the main suit are as follows: 1. Whether considering the circumstance and evidence before this Honourable Court, the Claimant has proved its claim to be entitled to the reliefs sought? 2. Whether or not the defendant is entitled to the reimbursement of the N510,000.00 training/tuition fees the defendant expended on training himself with the approval of the claimant and for the advancement of claimant job? 3. Whether or not the defendant is not also entitled to the refund of the N550,000.00 the defendant used in treating himself and N410,000.00 for valuables lost by the defendant in the robbery incident in claimant’s three day training held in Lagos? 4. Whether or not the Defendant is not entitled to the sum of N500,000.00 being the diverted and unpaid commissions of the defendant from 2008 to 2010? 5. Whether or not the defendant is not entitled to some terminal benefits and if he is entitled whether or not the claimant ought not to deduct such terminal benefits before arriving at the total figure the claimant is demanding from the defendant in the Honourable Court? 6. If any of the answers in issues nos. 2, 3 and 4 are in the affirmative, whether the Honourable Court is not supposed to take them into consideration before concluding whether the defendant is indebted to the claimant to the total sum of N1,910,898.89? 7. Whether any of the two parties in this case are entitled to its costs of litigation? In considering the first issue, the case of the Claimant is that the defendant owes it the total sum of N1,296,286.68 being the outstanding indebtedness as at the time of filing this suit. From the pleading and evidence led by the Claimant the total indebtedness was arrived at through: 1. Balance of car loan - N1,036,291.65 2. Balance of Housing loan - N289,511.24 3. Transfer Grant - N585,056.00 Total Indebtedness - N1,910,858.89 Less entitlements due to the Defendant: 1. NHF Balance - N312,481.90 2. Cooperative Balance - N80,100.00 3. Gratuity - N221,990.31 Total Entitlements - N614,572.21 Amount due to the Claimant from the Defendant is N1,296,286.68 In arguing its claims the Claimant referred to all the exhibits admitted by the court, namely, Exhibits CA2 – CA10, CA12-CA14, CA16-CA21, C22, C23, C24 and C5 and urged the court to hold that there is a valid agreement/contract between the Claimant and the Defendant and that the Defendant is bound by the terms of that agreement which he freely entered into because to hold otherwise would amount to the Court making a contract for the parties. In paragraphs 4.14 to 4.23 referred to the evidence before the court and cited and relied on authorities to show that the loan agreements were made with the defendant, the loans were also collected and the balances as claimed are correct. It is important to note here that the Defendant did not deny the loans or the outstanding balances on them. It is only in respect of the car loan that the defendant alleged that only 90% of the approved car loan was paid to the car dealer and that he, the defendant paid the 10% insurance sum totaling N113,500.00. Furthermore, the Defendant denied that the Claimant is entitled to the refund of the sum of N585,056.00 as Transfer grant because he had spent same trying to secure accommodation at Ibadan following the first transfer letter as Centre Coordinator. But when he received another transfer letter asking to move to Ibadan as Sales Executive instead of the earlier position as Centre Coordinator, he decided not to accept the transfer and even resign from the job wherein he gave notice to resign accordingly. This issue of refund of the sum of N585,056.00 is the one that the Defendant argued in his final written address. In his argument the Defendant’s counsel argued that the Claimant issued two letters of transfer to him both dated 7th December, 2010. The point here is that the defendant argued that the Claimant served him the letter of transfer as Centre Coordinator first. This is Exhibit D12. However, the Claimant equally stated that only one letter of transfer was issued to the Defendant, which is Exhibit C12. Let me reproduce the two letters for a proper appreciation. The first letter is Exhibit C12 tendered by the claimant which is as follows: Our Ref: HR22C/2010/0554 Tuesday 7th December 2010 Mr Adebowale Shoaga c/o UPS PortHarcourt Dear Mr Shoaga TRANSFER We are pleased to inform you of Management’s decision to transfer you to Ibadan as Sales Executive with effect from 15th December 2010. You will be responsible to the Regional Manager, who will give you full details of your functions when you assume office. Accordingly, your grade remains unchanged while your remunerations will be as follows: Basic Salary N621,298 per annum Housing Allowance N292,694 per annum Transport Allowance N241,773 per annum Meal Subsidy N115,691 per annum N1,271,456.00 per annum A transfer grant N150,000.00 Initial settlement allowance N234,155.00 Hotel Accommodation N139,521.00 Personal Effect N61,830.00 585,056.00 Note that in case you decide to resign your appointment with the company under 1 year of your transfer, you shall be requested to pay back on a prorated basis, part of the transfer cost. This cost shall be deducted from your terminal entitlements. By a copy of this letter, the Finance Manager is being advised to pay you accordingly. Yours sincerely Signed A O AJAYI (MRS) CC:AFP/CO/OFM/P.file The second letter is Exhibit D12 tendered by the Defendant and is as follows: Our Ref: HR22C/2010/0554 Tuesday 7th December 2010 Mr Adebowale Shoaga c/o UPS PortHarcourt Dear Mr Shoaga TRANSFER We are pleased to inform you of Management’s decision to transfer you to Ibadan as Centre Coordinator with effect from 15th December 2010. You will be responsible to the Regional Manager, who will give you full details of your functions when you assume office. Accordingly, your grade remains unchanged while your remunerations will be as follows: Grade 8 Basic Salary N621,298 per annum Housing Allowance N292,694 per annum Transport Allowance N241,773 per annum Meal Subsidy N115,691 per annum N1,271,456.00 per annum A transfer grant N150,000.00 Initial settlement allowance N234,155.00 Hotel Accommodation N139,521.00 Personal Effect N61,830.00 585,056.00 Note that in case you decide to resign your appointment with the company under 1 year of your transfer, you shall be requested to pay back on a prorated basis, part of the transfer cost. This cost shall be deducted from your terminal entitlements. By a copy of this letter, the Finance Manager is being advised to pay you accordingly. Yours sincerely Signed A O AJAYI (MRS) CC:AFP/CO/OFM/P.file In analyzing the two letters let me state that the Claimant maintained that it issued one transfer letter only to the Defendant. It tendered Exhibit C12, which is the letter of transfer of the Defendant as Sales Executive. On the other hand the Defendant pleaded that two letters were issued to him at different dates, one for the Centre Coordinator and the second for Sales Executive. He has a duty to present to the court the two separate letters he received as he who asserts must prove. See Section 136(1) of the Evidence Act 2011. See Akinyemi Fasuba vs Mrs F. Taiwo Adumasi & Anor (2015) LPELR-24548 (CA) pp. 27-28 Paras C-A. The Defendant only tendered the one letter of transfer relating to Sales Executive. He has therefore failed to discharge the burden of placing before the court the evidence that would have led credence to his assertion that he was served two different letters of transfer which affected his arrangement and hence decision to transfer to Ibadan. It was also what led him to resign. However, since it is within the legal right of the Defendant to resign his appointment at any time and he chose to do so after the letter of transfer to him, the interesting point is that in both cases of the letters of transfer, Exhibits C12 and D12, there is the same clause which is to the effect that in the event of the Defendant’s decision to resign within one year of the transfer, he would be required to pay back on a prorated basis. In this circumstance, the Defendant had accepted the decision of the transfer, collected the allowance meant for the transfer, and even applied for permission to defer the resumption date which is stated in Exhibit C14. The conditions stated in the letter of transfer are quite clear and so he is bound by them. His excuse that he had spent the money towards acquiring a new accommodation or settlement in Ibadan, the new transfer base, cannot be accepted to defeat his obligations under the transfer letter. This becomes much clearer considering that even if he had moved in accordance with the transfer letter once he decided to resign within one year of the transfer, he would still be obliged to refund part of the transfer grant, even though on a prorated basis. The Defendant has also submitted that the transfer grant cannot be refunded on the ground that he had spent the fund. This he has pleaded in paragraphs 21 and 23 of the Statement of defence. However, the defendant has not placed any piece of evidence in support of this fact. Expenditure involves spending of money but there is no evidence placed before the court as to how or on what he expended the Transfer Grant on. He has not tendered any receipts on any expenditure and so it is difficult to see how the court should believe him. Furthermore, as rightly submitted by the learned counsel for the claimant, the law is that pleadings must be supported by evidence; and evidence of an expenditure can best be presented by receipts. The pleading not supported by evidence is deemed abandoned. See Osigwelem vs INEC (2011) 9 NWLR (Pt. 1252) 456. In the circumstance therefore, the defendant has not shown the basis upon which to sustain his defence that he is not under obligation to refund the Transfer grant in question. In relation to the car loan as well as the housing loan, I have considered the submissions of the parties. The learned claimant’s counsel has argued that the defendant has not categorically denied these two loans in his pleadings and urged the court to consider them as admitted. He relied on a number of authorities such as Taiwo vs Adegboro (2011) 11 NWLR (Pt. 1259) 652 at 584, Per Rhodes Vivour, JSC, where he held that: Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect, after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue. See also NNPC vs Klifco (Nigeria) Limited (2011) 10 NWLR (Pt. 1255) 209 at 237 paras. F-G. I have carefully examined the pleadings of both parties, the evidence led, as well as the written arguments and submissions of the parties. The Defendant has not made any effort to contradict the loans advanced or the outstanding sums being claimed. Rather what he has done is to urge the court to look at his own claims against the Claimant, grant same and then thereafter determine if the claimant is entitled to the sum claimed. This does not strictly speaking amount to denial of the Claimant’s claims. This i so find. However, in the interest of the justice of the case I shall proceed to look at the subsequent issues as they would assist the court in arriving at its decisions in the case. On the second issue, the Defendant has argued that he is entitled to the reimbursement of the sum of N510,000.00 training/tuition fees he expended on training himself. He contended that the training was done with the approval of the Claimant. The Defendant relied on Exhibits D1, D2 and D3 to argue that approval had been given to proceed with the training programme. Here the critical point is whether the Claimant had approved and undertook to reimburse the Defendant on the programme? The Claimant however denied giving any approval to the Defendant to enroll on the programme at the Nigerian Institute of Transport Technology, (NITT), Zaria. The Claimant also relied on Exhibit D3 to submit that the Defendant had secured his admission into the programme and was informing it of the admission, following which it wished him well. This according to the claimant did not amount to approval which would have led to an obligation to reimburse the Defendant. He added that the defendant should not be allowed to import into the contract with the claimant terms which are not intended by the parties, relying on the case of Kayode Ventures Limited vs Min. of F.C.T. (2010) 7 NWLR (Pt. 1192) p. 171 at 219, paras A-B, Baba vs Nigerian Civil Aviation Training Centre, Zaria & Anor (1991) 5 NWLR (Pt. 192) 388 and Allied Trading Co. Ltd vs C.B.N. Line (1985) 2 NWLR (Pt. 5) 74. The Claimant then urged the court to interpret Exhibits CA12 and D3 in their simple and unambiguous meanings in the light of the Supreme Court’s decision in UBN vs Ozigi (1994) 3 NWLR (Pt. 333) 385 at 404, paras B-C. Having considered the submissions of counsel to the parties as well as authorities relied upon by them, the most critical question is whether the Defendant was given approval to proceed to the study and therefore entitled to the refund of his expenses incurred in the course of the study. The critical evidence relied upon by the Defendant is Exhibit D2. This is the response of the Learning and Development Manager of the Claimant, Mrs E. O. Oshinusi. The letter is reproduced hereunder: Our Ref: HR18A/2010/0483 Wednesday 13th October, 2010 Mr Shoaga Adebowale c/o UPS Phc Dear Mr Shoaga RE: POST GRADUATE DIPLOMA IN LOGISTICS AND SUPPLY CHAIN MANAGEMENT We refer to your informing us of your admission into the Nigeria Institute of Transport Technology for Post Graduate Diploma in Logistics and Supply Chain Management. Please programme your subsequent annual leave to fall during your examinations. We wish you success in your efforts towards self development. Yours’ sincerely Signed E. O. Oshinusi [Mrs] Learning and Development Manager Cc: BD Manager Cc: Personal file. This document was written in response to the Defendant’s letter, Exhibit D1, which I also reproduce hereto: The Training & Development Manager United Parcel Service Oworonshoki Gbagada Lagos 6th May, 2010 Dear Madam, NOTIFICATION OF POSTGRADUATE PROGRAMME I wish to notify you of my willingness to partake in a postgraduate degree in Logistics and Supply Chain Management. It is a weekend programme and will last for twelve months. The programme will impart the skills I require to function in my new assignment. I am forwading a copy of the admission letter for your perusal in the hope that full reimbursement would be made of the presentation of copy of the proof of participation as you advised. Thank you. Signed Shoaga Adebowale UPS, Supply Chain Solutions Port Harcourt. Cc: SOAB RM-East Taking Exhibit D1 first, the Defendant clearly was informing the Claimant about his admission. A careful reading shows that the Defendant was hoping to have reimbursement following the successful completion of his studies. This was responded to in Exhibit D2 by the Claimant. I have carefully read the said Exhibit D2 and with all due respect to the Defendant, I am not able to agree that the letter amounts to an approval for the reimbursement of the cost of the studies he informed the Claimant about. I have equally considered the employee handbook, Exhibit C13, paragraph 4 thereof which talks of Tuition Reimbursement plan. It is quite clear that the Defendant by his Exhibit D1 did not make reference to the Tuition reimbursement plan. The Claimant by its Exhibit D2 also did not refer to the said Tuition re-imbursement plan. Furthermore the response from the Claimant in Exhibit D2 does not give categorical approval that any reimbursement of tuition fee or any other study costs of the Defendant. It is even perhaps better put that Exhibit D1 by the Defendant did not state that he was applying for the approval to proceed with the study and reimbursement in accordance with the Company policy of tuition re-imbursement. The wordings of the policy as contained in the said Employee handbook are clear and they state that re-imbursement is made for “company-approved courses”. What the defendant is asking the court to do is to find in his favour by implication that Exhibit D2 amounted to approval. I think that would be bringing into the document what it did not purport to do. This is not in accordance with the law. See the authorities earlier cited on the issue such as Kayode Ventures Limited vs Min. of F.C.T. (2010), supra, Baba vs Nigerian Civil Aviation Training Centre, Zaria & Anor (1991), supra and Allied Trading Co. Ltd vs C.B.N. Line (1985), supra. In the circumstance therefore, the issue is resolved against the Defendant as I find that he is not entitled to the reimbursement because there was no agreement for that between the parties. I now move to the 3rd issue. It is hinged on the armed robbery incident in which the Defendant asked for the refund of the sum of N550,000.00 said to be used by him in treating himself and the sum of N410,000.00 worth of valuables he lost. The defendant answered the issue in positive maintaining that he is entitled to the said refund. He referred to Article 36(a) of the Employee Handbook, Exhibit C13 which states that “the company is responsible for the treatment of employees involved in accidents arising out of and in the course of their employment in accordance with the workmen’s compensation Act/Group Personal Accident Policy of the Company.” The defendant equally submitted that he was entitled to compensation for the loss he suffered. He cited and relied on Chief Makwe vs Chief Obinna Nwokor & Ors (2001) 12 SCMR 63. In response to the issue of refund for medical bills and loss of personal effects during armed robbery incident involving the defendant whilst attending the official workshop in Lagos, the claimant submitted that it was all an act of gold-digging and afterthought. Learned counsel for the claimant submitted that the defendant did not sustain any injuries that deserve the refund of medical bills. He argued that the evidence before the court is not in support of the case of the defendant that he indeed suffered any injuries or lost any valuables. On the valuables the claimant argued that there is no basis for the claims under the Employee Compensation Act and moreover there is no particularization of the items lost by the defendant. On the issue of the particularization he referred to the case of Smufti Cases (Nigeria) Ltd & Anor vs Owners of M.V. Gongola Hopse & Anor (2002) FWLR (Pt. 103) at 326 and Khawan & Anor vs Mrs Akingkube (2002) FWLR (Pt. 109) 1674 at 1586. He added that there is absence of concrete proof of loss suffered and he referred to SPDC vs Chief Tiebo VII & Ors (2005) All FWLR (Pt. 265) 990 at 1013, 1018-1019. Having considered the processes filed, the evidence led as well as the arguments and submissions of the parties on this issue, the question is whether the Defendant has made sufficient case to entitle him to the amounts claimed. On the injury issue, the defendant’s case is that he suffered injury at the scene of the incident. He also lost valuables there. However, during cross examination of the CW1, Mr Michael Osifor, his former immediate superior, and also the person who picked from the scene of the robbery incident, he was asked and he answered thus: Question: Confirm that you were the one that dropped him at the scene of the incident and that you were the one that picked him after the incident? CW1: Yes. We were on an official assignment and I dropped him there after office hours. I did not drink. Question: Confirm that he had a travelling bag on him and some belongings? CW1: He had a UPS Backpack. The defendant called me with the help of a Police Telephone to inform me of the robbery attack. When I went and met him, he did not have the bag anymore. Question: Confirm that you took him to a hotel and paid for his bill? Why did you do that? CW1: I did it because his money had been stolen and I went to ATM withdrew money to put him in an accommodation. Question: Were you responsible for the payment or you were refunded? CW1: I paid on personal grounds and he later transferred the money to me. Question: Do you agree that he incurred material loss in that incident? CW1: Yes. Question: Are you aware or were told that he was wrestled to the ground by the armed robbers? CW1: He told me that he was attacked. But he did not tell me he was wrestled to the ground. From his information of the robbers had a gun. ----------------------------------- Question: Do you know if he has sustained any injuries as a result of the attack? CW1: No. I did not observe any physical injuries on him. Furthermore, in his testimony under cross examination the Defendant stated that: I went for the training from company alone. Mr Osifo was the trainer at the training. The training was at Maryland, Lagos. Armed robbers attacked me at Maryland Bus Stop during the training. It was on 12/10/2013 between 7.00pm and 7.30pm. The robbers fired gunshots. They did not hit me. I went the hospital because I had bodily injury and dental injury. I went to the hospital after I came back to Port Harcourt. I cannot remember the exact date. But I went to Provident Clinic Port Harcourt first. From the evidence above it is quite clear that the incident in question happened and the Defendant was taken from the scene of the incident by the CW1 to the Hotel. It seems to me putting the evidence on the scale of justice, the scale tilts against the Defendant. He alleged serious injuries to his body and dentition that eventually gulped the sum being claimed by him now. But it is curious that he did not even go to a hospital immediately thereafter, and only did so when he had returned to Port Harcourt. Furthermore, there is no medical report to show the nature of the treatment given, when the injury was sustained and when he actually went to the hospital. What he has presented are just receipts, Exhibit D10 dated 17/3/2011, 7/04/2011 and 12/8/2011. It is interesting to note that the dates all fall outside the period of his employment with the claimant. In the circumstance it is difficult to agree with the Defendant that he has shown sufficient basis for the grant of the claim. On the loss of belongings and valuables by the Defendant, I have also considered the evidence led as well as the submissions of the parties. Here, the Defendant has not proved the said loss on the preponderance of evidence. The items have not been particularized along with the evidence of purchase, etc, to ground the said claim. Here the decision in the case of SPDC vs Chief Tiebo VII & Ors (2005), supra, is apposite. The obligation is on the Defendant to discharge the onus of proof. This he has not done. The issue is also resolved in favour of the Claimant. On issue 4, which has to do with the alleged diversion of the sum of N500,000.00 from 2008 to 2010. He submitted that having worked for years for the claimant, he was entitled to commission but the claimant’s staff diverted his commission and paid them rather to other staff. All the Defendant’s protest could not be listened to by the Claimant other than pay the defendant his commission. The Claimant on the other hand denied this allegation of the Defendant and submitted rather that the defendant performed poorly in the organization and did not deserve any commission. After a careful perusal of the issue particularly the arguments and submissions of parties, it is clear to me that the defendant has not placed any piece of credible evidence on the existence of the commission and its alleged diversion by the claimant. The issue is therefore resolved against the defendant. Issues 5 and 6 are taken together, which are essentially on whether or not the court should not consider the grant of the Defendant’s claims before determining the actual amount of money owed by the Defendant to the claimant. In the circumstance, with my finding that the defendant is not entitled to the refund of the cost of training at NITT, the refund for cost of treatment and loss of properties, as well as diversion of commissions, there is nothing to subtract from the amount that the claimant is claiming from the claimant. This I so hold. The last issue is that of payment of legal fees by the defendant to the claimant and vice versa depending upon who wins the case. I have read the submissions of both parties on the issue. Without much ado let me go straight to the position of the law on the issue. This Honourable Court of late held, relying on the prevailing authorities, that it is against public policy to pass the burden of solicitor’s fee to the other party in a matter. See the case of Adewale Abdul vs Nigris Ltd (Unreported) Suit No. NICN/PHC/96/2013 Judgment in which was delivered on February 12, 2015, per Kola-Olalere J., held that: In addition the claimant is claiming sum of N660,000.00 (Six Hundred and Sixty Thousand Naira) representing legal fees he incurred in prosecuting this case. In the case of S.P.D.C. vs Okonedo (2007) All FWLR (Pt. 368) 1104 at 1137-1138 paras E-D, the Court of Appeal held that it is unethical and an affront to public policy to pass on the burden of solicitor’s fee to the other party and in Nwaji vs Coastal Service (Nig) Ltd (2004) 11 NWLR (Pt. 885); 2004-LPELR-SC.151/1999; (2004) 18 NSCQR 895 per Uwaifo JSC at p.18 paras B-E held on the proprieties of a party claiming solicitor’s fees from the opponent that it is an unusual claim and it is difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. Consequently, in line with the cited authorities above, I hold that the claimant is not entitled to this claim from the defendant and so this claim for solicitor’s fee is hereby dismissed. The parties in this have not convinced me on why I should depart from this position of this honourable court. The last issue therefore is hereby resolved against the Claimant. I now turn to the counterclaim of the Defendant. In his Statement of Defence and counterclaim the Defendant claimed against the claimant by way of Counter-Claim as follows: 1. The sum of N510,000.00 being the amount the defendant spent in training himself for the requisite knowledge needed for the claimant job. 2. The sum of N550,000.00 being the amount of money expended by the defendant to treat himself after the robbery incident in the training meeting of the claimant. 3. The sum of N410,000.00 being the amount of valuable and personal belongings lost by the defendant during the robbery incident in the training and official assignment of the claimant. 4. The sum of 500,000.00 being the diverted and unpaid commissions of the defendant from 2008 to 2010. 5. The sum of N3,000,000.00 only as cost of litigation. The defendant relied on his arguments and submissions in defence of the claims of the claimant in establishment of the reliefs sought in the counter-claim. In the circumstance, with the finding and holding that the claims of the defendant were not proved, the counter-claim must as well fail. It is accordingly hereby dismissed. In the circumstance and for all the reasons given the claims of the Claimant succeed and I order as follows: 1. The Claimant is to be paid the sum of N585,056.00 (Five Hundred and Eighty Five Thousand and Fifty-Six Naira) being the transfer grant paid to the Defendant. 2. The Claimant is to be paid the sum of N1,036,291.65 (One Million, Thirty-Six Thousand, Two Hundred and Ninety-One Naira, Sixty-Five Kobo) being the balance of the car loan granted to the Defendant. 3. The Claimant is to be paid the sum of N289,511.24 (Two Hundred and Eighty-Nine Thousand, Five Hundred and Eleven Naira, Twenty-