IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 27th January 2025 SUIT NO. NICN/LA/327/2019

 

BETWEEN

 

SHITTU ABAYOMI                                                …                CLAIMANT

 

AND

 

FOLAD CONSTRUCTION & ENGINEERING LTD    …                DEFENDANT

 

JUDGMENT

 

1.       This suit was initially assigned to Honourable Justice Mustapha Tijjani. Following His Lordship’s transfer, the case was reassigned to me and came before me for mention on 18th November 2021. The Claimant commenced this suit on 9th July 2019. By a Court order made on 20th February 2023, the Claimant was granted leave to amend his statement of facts. In the amended statement of facts, which was filed on 16th March 2023, the Claimant sought the following reliefs: 

 

 

 

 

 

2.       Upon receipt of the originating process, the Defendant filed a memorandum of appearance, statement of defence, and counterclaim on 16th September 2022. The Defendant subsequently filed a consequential amended statement of defence and counterclaim on 30th March 2023, and counterclaimed against the Claimant for:

 

 

 

 

3.       The Claimant filed a reply to the statement of defence and defence to counterclaim without an accompanying witness statement on oath. The trial commenced on 2nd November 2023 and was concluded on 18th March 2024. The Claimant testified, tendered three exhibits, and the matter was adjourned to 30th November 2023 for cross-examination and defence, and subsequently to 18th March 2024. At the resumed hearing on 18th March 2024, the Claimant was cross-examined. After that, the Defendant’s witness testified, tendered seven exhibits, and was cross-examined. The matter was then adjourned for the adoption of final written addresses. Parties exchanged final written addresses, which their counsel adopted on 4th December 2025, and the matter was set down for judgment. 

 

 Brief facts of the case

 

4.       The Claimant states that he was employed by the Defendant as a Site Administrative Manager, working on a project at a French school with a monthly salary of N150,000.00. He worked diligently throughout his employment and maintained a clean record. The Claimant asserts that he was not paid his salary for April 2018 without any valid reason, despite having worked during that period and continuing through May 2018. When he noticed a reduction in work on the project site, he approached the Managing Director to inform him of his intention to leave the company. However, upon his exit, his outstanding salary for April was not paid, even after he made several demands and the Office of the Public Defender proposed a peaceful resolution, hence this action. The Defendant disclaimed liability and counterclaimed against him for the design of additional work components, damages, and costs. 

 

          Summary of final written addresses

 

5.       Learned counsel for the Defendant raised four issues for determination in the final written address filed on 14th October 2024:   

 

 

 

 

 

6.       In addressing the first issue, counsel stated that the counterclaim remains unchallenged due to a lack of defence. Relying on General Oil Limited & Anor v. FSB International Bank Plc [2005] 5 NWLR (Pt 919) 579 at 591, Balogun v. Yusuff [2010] 9 NWLR (Pt 1200) 515 at 537, 542, and Adedeji v. Eso [2012] 13 NWLR (Pt 1316) 29 at 42, counsel submitted that a counterclaim is an independent action, and where no response is filed to the counterclaim, the burden of proof is discharged, entitling the Defendant to judgment. The Court was urged to hold so. Counsel referred to paragraphs 17 – 30 of the Defendant’s witness’s sworn statement and Exhibits D1, D2, D3, D4, D5, D6, and D7, and argued that the Defendant has established the counterclaim.  It was argued that general damages flow from the injury the Defendant suffered from the Claimant’s actions and inactions, and both damages and costs are awardable at the Court’s discretion. After examining Exhibit D2, counsel maintained that the Claimant's actions led to losses in the Defendant’s earnings and reputation, as well as the total loss of a project the Defendant had worked hard to acquire, and urged the Court to grant the counterclaim.

 

7.       In addressing the second issue, counsel argued that the relationship between an employer and employee is confidential and that the employee has a duty to protect the employer’s property and prevent avoidable losses. This was supported by the cases of L.C.R.I v. Ndefoh [1997] 3 NWLR (Pt 491) 72 and Abomeli v. NPC [1995] 1 NWLR (Pt 372) 461. Counsel referenced paragraphs 3, 5, 6, and 7 of the Claimant’s further sworn statement, emphasising that it is evident the Claimant was employed as a site administrator responsible for the daily maintenance of the project site, overseeing workers, and recording events at the site. However, during cross-examination, the Claimant attempted to evade this responsibility, which was inconsistent with his pleadings and previous evidence. Additionally, counsel noted contradictory statements by the Claimant regarding the project's start. It was stressed that parties are bound by their pleadings, and evidence that does not align with those pleadings is irrelevant. To support this argument, the cases of Oluyede v. Access Bank Plc [2015] 7 NWLR (Pt 1489) 596 and W.A.C.C. Ltd v. Caroline Poultry Farm Ltd [2000] 2 NWLR (Pt 744) 197 were cited.  Therefore, counsel urged the Court to disregard the Claimant’s evidence given during cross-examination and to conclude that the Claimant failed to perform his duties diligently.

 

8.     On issue three, referencing the cases of Adewunmi v. Nigerian Eagle Flour Mills [2014] 14 NWLR (Pt 1428) 443 and ACB v. Nbisike [1995] 6 NWLR (Pt 416) 725, counsel defined gross misconduct as serious misbehaviour in the workplace, including actions that are illegal or in violation of company rules, behaviours for which an employee may be dismissed. Counsel argued that, absent a stipulation on summary dismissal in the employment contract, an employee may still be terminated summarily for gross misconduct, as in this case. The case of Ansambe v. B.O.N. Ltd [2005] 8 NWLR (Pt 928) 650 was cited in support of this argument. Counsel distinguished between termination and dismissal, noting that while both aim to end employment, the level of misconduct required to justify dismissal can vary. The Court was referred to the cases of Jombo v. P.E.F.M.B [2005] 14 NWLR (Pt 945) 443 and NAB Ltd v. Shuaibu [1991] 4 NWLR (Pt 786) 450. Upon reviewing Exhibits D1 and D3, counsel reiterated that the appropriate penalty for an employee's gross misconduct is summary dismissal, relying on Nwabuani v. Golden Guinea Breweries PLC [1995] 6 NWLR (Pt 400) 104. Counsel urged the Court to hold that the Claimant was rightly dismissed and is not entitled to any benefits.

 

9.     On issue four, counsel reviewed the reliefs sought by the Claimant and argued that, while general damages are awarded at the Court's discretion, only special damages are applicable in cases of breach of an employment contract, relying on the case of Co-operative Dev Bank v. Essien [2001] 4 NWLR (Pt 704) 474. Counsel further submitted that for a party to be entitled to damages, he must prove that a wrongful dismissal occurred. Counsel made a distinction between termination and dismissal, arguing that since the Claimant was guilty of misconduct, having failed to perform his duties and caused a loss to the Defendant, he is not entitled to any wages, salary, or damages. It was also contended that the Claimant has not established his entitlement to general damages, nor is he entitled to his salary for April 2018 or any other reliefs sought. The Court was urged to grant the counterclaim and dismiss the Claimant's claim.

 

10.     Learned counsel for the Claimant raised two issues for determination in the final written address filed on 15th October 2024: 

 

 

 

11.     In addressing the first issue, counsel reiterated the core of the Claimant's claims, noting that as long as the terms of the contract are met, an employment relationship can be terminated for a reason or even without one, relying on Ovivie v. Delta Steel Co. Ltd [2023] 14 NWLR (Pt 1904) 203. Accordingly, counsel contended that the Claimant is entitled to his salary for April 2018, as the Defendant still employed him for that month. Counsel emphasised that the Claimant's salary cannot be withheld under the pretext of summary dismissal, citing N.B.C. Plc v. Edward [2015] 2 NWLR (Pt 1443) 201 and Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt 400) 156 in support. 

 

12. Counsel further submitted that there is uncontested evidence indicating that the Claimant was an employee of the Defendant, worked through April 2018, and was entitled to a monthly salary of N150,000. He contrasted the testimony of the Defendant's witness regarding the payment of the salary during cross-examination with Exhibit 1, arguing that it is evident that no part of the Claimant's salary for April 2018 was paid, which contradicts the defence witness's testimony under cross-examination and lacks supporting evidence, thereby entitling the Claimant to his full salary. The cases of Gbenga v. A.P.C [2020] 14 NWLR (Pt 1744) 248 and Abatan v. Awudu [2004] 17 NWLR (Pt 902) 430 were cited in support. The Court was urged to hold so. Counsel also argued that the termination of the Claimant's employment on grounds of misconduct was unjustified by the Defendant, referencing the case of Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt 622) 29. Counsel further pointed out inconsistencies in the Defendant's witness’s testimony regarding the payment of the Claimant's salary; at one point, the witness claimed that the Claimant was summarily dismissed without pay, while in another, the witness stated, during cross-examination, that part of the April salary had been paid. Counsel urged the Court to disregard the defence witness's testimony, relying on Anike v. SPDCN Ltd [2011] 14 NWLR (Pt 12460 227 and Ajide v. Kelani [1985] 3 NWLR (Pt 12) 248. In conclusion, counsel submitted that the Claimant has successfully established his entitlement to the reliefs sought. Counsel explained general damages, referencing the case of Odulaja v. Haddad [1973] 11 SC 357 at 360, among others, and urged the Court to award damages accordingly.

 

13.     In addressing issue two, counsel reproduced the counterclaims and argued that the burden of proof lies with the Defendant, citing Aberuagba v. Oyekan [2020] 2 NWLR (Pt 1707) 165 and Okeke & Anor v. Eze [2013] LPELR-22455[CA]. Counsel summarised the facts supporting the defence and counterclaim, contending that, in accordance with the principle of privity of contract, the Claimant, who is not a party to the Defendant’s contract with AFN, cannot be sued for breach by AFN. Consequently, this deprives the Court of jurisdiction to entertain the claim, as supported by the case of Chemical and Allied Products Plc v. Vital Investments Ltd [2006] 6 NWLR (Pt 976) 220, Section 254C[1][a] of the 1999 Constitution, and Section 7 of the National Industrial Court Act, 2006, among others. Counsel urged the Court to strike out the counterclaim due to a lack of jurisdiction.

 

14.     Furthermore, counsel argued that, even if the Court possesses jurisdiction to consider the counterclaim, it is bound to fail due to insufficient evidence. The Defendant was unable to demonstrate that the Claimant’s conduct led to the termination of the contract with AFN. It was also asserted that although the counterclaim pertained to special damages, the Defendant failed to specifically plead and prove these damages, thereby not discharging the burden of proof. Counsel urged the Court to disregard the counterclaim, citing Section 137[1] of the Evidence Act, 2011, as amended, and Jallco Ltd v. Owoniboys Tech. Services Ltd [1994] 4 NWLR (Pt 391) 534 at 546. Additionally, counsel pointed out that the reliefs sought are vague and lack evidentiary support.

 

15.     In response to paragraphs 4.11 – 4.16 of the Defendant’s final written address, counsel noted that the Claimant filed a reply to the statement of defence and a defence to the counterclaim on 26th May 2023, and urged the Court to dismiss the Defendant's arguments as lacking merit. Relying on Royork [Nig] Ltd v. A.G. and Commissioner for Justice, Sokoto [2021] LPELR-55023[CA], counsel submitted that the Defendant has not established its entitlement to general damages. Regarding costs, counsel referenced DHL v. Eze-Uzoamaka [2020] LPELR-50459[CA], asserting that it is unethical for a party to impose legal fees on the adversary. The Court was urged to dismiss the claims for damages and costs, enter judgment in favour of the Claimant with costs against the Defendant, and dismiss the counterclaim as frivolous and lacking in merit.

 

16.     In arguing the reply on points of law filed on 21st October 2024, the learned counsel for the Defendant argued that, per Order 45, Rule 2(g) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 ("the Rules"), a written address should not include extraneous matters. Counsel pointed out that the facts mentioned in paragraphs 1.2.1 and 4.1 of the Claimant’s final written address are irrelevant and have been introduced for the first time. The Court was urged to disregard these points. In response to the Claimant’s assertion that he filed a defence to the counterclaim, the counsel contended that not only was the reply and defence to the counterclaim not served on the Defendant, but also that no sworn witness statement was attached to the process, which breaches Order 30, Rules 2(1), (2), and (3) of the Rules, relying on the case of Kwajaffa v. B.O.N. Ltd [1999] 1 NWLR (Pt 587) 423 at 434.

 

17. Counsel argued that there is a notable difference between having no defence and having a weak defence. As such, the Claimant's assertion that the counterclaim can only succeed based on the strength of the Defendant's case, rather than the weakness of the defence, is untenable. Counsel contended that the Defendant has substantiated its counterclaim in accordance with Sections 131, 132, 133, and 134 of the Evidence Act. In response to the Claimant's argument regarding the lack of privity of contract, counsel asserts that this argument is misplaced and reiterated the main points of the counterclaim. Regarding the Claimant's duty, counsel referenced the case of Abomeli v. N.R.C. [1995] 1 NWLR (Pt 372) 451. Addressing the Claimant’s claim of lack of jurisdiction, counsel submits that the Court possesses the necessary jurisdiction to hear the counterclaim, which arose from workplace matters, relying on Section 254C(1)(a) of the 1999 Constitution and the case of Omang v. NSA [2021] 10 NWLR (Pt 1783) 55. It was also submitted that since the Claimant is guilty of misconduct that resulted in summary dismissal, he is not entitled to any benefits, relying on the case of Osagie v. NNB Plc [2005] 3 NWLR (Pt 913) 513. Counsel urged the Court to grant the counterclaim and dismiss the Claimant's claim. 

 

          Preliminary issues

 

           Is the Defendant’s witness’s evidence inconsistent?

 

18.     Learned counsel for the Claimant argued in paragraph 7.18 of the final written address that, while the Defendant’s witness stated under cross-examination that he paid part of the Claimant’s salary for April 2018, his sworn statement claimed that the Claimant's employment was summarily terminated for gross misconduct without pay. The Court was urged to disregard the defence on the grounds of this inconsistency. The Defendant did not respond to this argument in the reply on points of law, thereby conceding the issue. It is established law that parties are bound by their pleadings in all civil cases, and a party must present evidence that supports the assertions made in the pleadings and not otherwise, as noted in Ezemba v. Ibeneme & Anor [2004] 14 NWLR (Pt 894) 617 at 664. Additionally, no witness who provides inconsistent testimony under oath can be regarded as credible. Such a witness should not be treated as truthful. Please, refer to Ezemba v. Ibeneme & Anor (supra) page 654, and Agbaosi & Anor v. Imevbore & Anor [2014] 1 NWLR (Pt 1389) 556 at 602. I have reviewed the Defendant’s witness’s sworn statement and the evidence given during cross-examination. The Defendant's pleading and evidence assert that the Claimant's employment was summarily terminated for misconduct, which renders him ineligible for salary for April 2018. The claim of partial payment of the April 2018 salary, aside from not being pleaded, contradicts the Defendant’s case and undermines the credibility of the witness's testimony, which is accordingly discountenanced. 

 

          Does the Court have the jurisdiction to entertain the counterclaim?

  

19.     The Claimant's counsel argued that the Court lacks jurisdiction to consider the counterclaim because the Claimant is not a party to the contract between the Defendant and AFN and, therefore, cannot be liable for any breach. Counsel further contended that the counterclaims are not related to employment matters. In response, the Defendant's counsel asserted that the Court does have jurisdiction over the counterclaim, as it stemmed from workplace activities and occurred within the scope of the Claimant's employment. Upon reviewing the evidence presented, it is evident that the Claimant was employed by the Defendant as a site administrator and was assigned to the AFN project site. It is also undisputed that the counterclaim is based on the Claimant's performance of his duties in that role. Thus, although the counterclaim arose from a breach of contract, the reliefs sought relate to the Claimant's alleged wrongful performance of his responsibilities. While there is some ambiguity regarding whether the claim for general damages pertains to breach of contract or relates to the design of additional work components, the defence counsel argued that the general damages arose from the injuries the Defendant incurred as a result of the Claimant's actions or omissions. Therefore, I hold that the Court has jurisdiction to entertain the counterclaim, which arose from the employment relationship between the parties. 

 

          Is the Claimant’s evidence contradictory?

 

20.     The learned counsel for the Defendant argued that the Claimant's testimony regarding his duties during cross-examination is inconsistent with his previous statements. Specifically, the Claimant insisted during cross-examination that he supervised only junior staff, a claim that contradicts his pleadings, which stated that his duties involved overseeing staff in general. Counsel urged the Court to disregard this testimony. It is the law that a witness who provides inconsistent statements in Court is typically viewed as untrustworthy. While minor inconsistencies in a party’s evidence in a civil case may not severely damage his case, major inconsistencies can be detrimental. When significant discrepancies occur in a witness's testimony, it becomes difficult to attribute any credibility to the evidence. This principle is illustrated in the case of Consolidated Breweries Plc & Anor v. Aisowieren [2001] 15 NWLR (Pt 736) 424 at 456. In paragraphs 3 and 5 of his sworn statement, the Claimant stated that he was employed as a site administrative manager for a project at the French School in Victoria Island, Lagos. His responsibilities included daily maintenance of the project site, ensuring sufficient power supplies, and keeping records of workers and on-site events for the Defendant. During cross-examination, when asked if his responsibility included site administration, the Claimant responded affirmatively. He was then informed that this involved recording the presence of individuals on site as they entered and exited, to which he also agreed. However, he later insisted that he was responsible solely for junior staff. This clearly contradicts his sworn statement and portrays the Claimant as untruthful. In this situation, the Court cannot selectively believe or disbelieve parts of the Claimant’s evidence. The evidence must be disregarded, as established in Ifeadi & Anor v. Atedze [1998] 13 NWLR (Pt 581) 205 at 233. Consequently, I conclude that the Claimant is not a credible witness, and his evidence must be disregarded.

 

          Issues for determination

 

21.     I have considered the pleadings, evidence, and submissions of the parties, and to my mind, the two issues that arise for determination are:

 

 

 

Issue one: Whether the Claimant is entitled to judgment on his claims

 

22.     It is a well-established principle that the party making an assertion has the burden to prove it. This is outlined in Section 131(1) of the Evidence Act, as well as in the cases of Shehu v. Ahmad & Ors [2023] 9 NWLR [Pt 1888] 27 at 49-50 and Nduul v. Wayo & Ors [2018] LPELR-45151(SC) 51-53. The Claimant, who initiated this suit based on facts he believes support his claims for judgment, must convince the Court that these facts justify the judgment he seeks, as noted in Sections 132, 133(1), and 136(1) of the Evidence Act. The Claimant's burden is to be discharged on a balance of probabilities, as stated in Section 134 of the Evidence Act. If the Claimant fails to discharge this burden, his case will be dismissed.

 

23.     Furthermore, in resolving employment disputes, the Court will refer to the employment contract and any other stipulations that are incorporated, or deemed to have been incorporated, into the contract, as stated in Gbedu & Ors v. Itie & Ors [2020] 3 NWLR (Pt 1710) 104 at 126. The employment contract serves as the foundation for any action taken in the event of a breach. The success of the case hinges entirely on the terms agreed upon, or deemed to have been agreed upon, by the parties involved, as illustrated in Gyubok v. The Federal Polytechnic, Bauchi & Anor [2024] 16 NWLR (Pt 1965) 515 at 549.

 

Summary of evidence

 

24.     The Claimant sought 4 reliefs, testified in proof of his claims, and tendered 3 exhibits marked Exhibits 1-3. These are the Claimant’s Guaranty Trust Bank Plc statement of account, the Claimant’s letter to the office of the Public Defender for legal assistance dated 11th October 2018, and the letter from the office of the Public Defender to the Defendant dated 16th October 2018. The Claimant's evidence indicates that he was employed by the Defendant as a site administrator in October 2017 to work on a project at the French School located on Yunis Bashorun Street, Victoria Island, Lagos. He received a monthly salary of N150,000.00, which was paid into his Guaranty Trust Bank Plc account. His duties included daily maintenance of the project site, ensuring the power supply remained uninterrupted, and recording the activities and attendance of on-site workers for the Defendant. Additionally, he was responsible for documenting the work completed on the project site each day before the Defendant made any payments to workers or contractors. The project commenced in October 2017 and continued until there was a lull in operations in May 2018. During his employment, he did not receive his April 2018 salary, despite having worked throughout that month. He had also documented his salaries from October 2017 to March 2018. Although his salaries were often paid late, he remained committed to performing his duties diligently and maintained a clean record.

 

25.     The Claimant reiterated that the Defendant failed to pay his April 2018 salary and allowances without justification, even though he had fulfilled all his official responsibilities during that month. He stated that he recorded all worker entries for the project site in April 2018, which were forwarded to the Defendant's accountant, Mr. Samuel Williams, for the processing of salaries and allowances. To provide evidence of his work in April, the Claimant mentioned that he received a payment of N12,500 (twelve thousand, five hundred naira) from Ms. Sandra Odogwu, the Defendant's Business Development Manager, on 26th April 2018. This amount was intended to cover the cost of servicing the generator needed for the workers on-site that day. He continued working on the project until May 2018. However, when he noticed a slowdown in work and that the workers had stopped coming, he informed Mr. Tokunbo Doherty, the Managing Director of the Defendant, via telephone about his decision to voluntarily exit. Mr. Doherty agreed to his resignation, thanked him for his understanding, and promised to pay the outstanding salary for April 2018.

 

26.     In his pursuit of the unpaid salary, the Claimant made several complaints to the Defendant, but received no resolution. This prompted him to seek assistance from the Office of the Public Defender (OPD) in Surulere, Lagos, which subsequently invited the Defendant to a mediation session to explore a potential settlement. The Claimant noted that upon receiving the invitation letter from the OPD, the Defendant neither attended the meeting nor took steps to settle his outstanding salary. He maintains that the Defendant has not paid his April 2018 salary. As the primary breadwinner for his family, the Defendant's actions have caused him significant anguish, serious depression, trauma, and deterioration of his health. The refusal to pay his salary resulted in severe financial hardship and strained his family relationships, as he was unable to provide for their needs until he found another job. The Claimant requested the Court to enter judgment for him as claimed in the amended statement of facts.

 

27.     During cross-examination, Mr. Abayomi stated that he was orally employed by the Defendant and had worked for Keysode Ltd before joining the Defendant. He explained that Keysode Ltd went out of business, and the Defendant offered him a job since he was unemployed at that time. His responsibilities included site administration for junior staff, including keeping a record of staff members as they entered and exited the site. However, he clarified that his monitoring responsibilities pertained only to junior staff and that there was a register at the gate for them to sign in and out. He was not present at the gate to oversee this process. He confirmed that his employment lasted for seven months, from October 2017 to April 2018, and stated that he was never questioned about his duties during this period. Although his salary was supposed to be paid at the end of each month, it was consistently received in the first week of the following month. One of his complaints was that his salary was always paid late. When asked whether he had informed the Court of his request for a salary advance during this time, he replied that they had an agreement on salary advances, which were deducted from his pay. He claimed to be unaware of any subcontracting work being done and mentioned several individuals he knew: James Ogundele, the Quantity Surveyor; Mr. Samuel Williams, the accountant; and Mr. Ebiet Biddy, the project manager. He also stated he was not aware that these individuals had all been summarily terminated. When told that his site oversight included reporting to management what happened at the site, he replied that it depended on what the counsel meant by “site oversight” and then stated that his site duties included maintaining records of junior staff for payroll purposes and managing the generator. He maintained that not all workers on site reported to him. 

 

28.     When asked whether he would recall that the Defendant was the first local company to handle a project for the French School in Nigeria, Mr. Abayomi replied that he was unaware. When told that he was not aware that the Defendant had done a design for the client, Mr. Abayomi replied, “Design of what?” and then said, "Every project comes with a design.” Counsel then told him it was the design for pipe installation on the project site. Mr. Abayomi said he was not aware because he was not involved in the project's technical aspects. He noted that the Quantity Surveyor, Project Manager, and Managing Director were responsible for the design and costing of the project, which he had no insight into, as he joined the company in October 2017, while the project started in June 2017. When told that in February and March 2018, the people he had mentioned by name carried out the installation over the weekend at the site he managed, Mr. Abayomi replied, “That is not true.” Pressed further that Mr. James Ogundele, Samuel Williams, Ebiet Biddy, and himself came from Keysode Ltd, so it was convenient for him to close his eyes to what they did on the site he was the administrator, and they took a sub-contract, Mr. Abayomi again replied, “It is not true”. Mr. Abayomi also stated he was unaware that the Defendant “lost face with the owner of the contract because of the activities of the three staff”. Furthermore, Mr. Abayomi said he was unaware that the Defendant had lost money on the bid for the subcontract. He confirmed that some junior staff left in mid-April 2018, while he left in May 2018. He noted that Mr. James Ogundele, Samuel Williams, and Ebiet Biddy were still working with the Managing Director and were attending meetings with the client, which is why he is surprised. He denied being summarily dismissed for dereliction of duty, stating instead that he left voluntarily after reaching an understanding with the Managing Director.

 

29.     Engineer Adetokunbo Victor Doherty, the Managing Director of the Defendant, clarified in his testimony that the head office of the Defendant is located at 259 Borno Way, Ebute-Metta, Lagos, and not at 18B Anthony Etukudo Street, off Admiralty Way, Lekki Phase 1, as alleged by the Claimant. Mr. Doherty stated that the Claimant was employed orally as a temporary staff member. The project commenced in April 2017 and concluded in September 2018. Both parties agreed that salary payments would be made within the first week of each month. The payments outlined by the Claimant reveal that the Claimant was consistently paid under this agreement, except for October 2017 and March 2018, when payments were delayed by 1 week and 3 days, respectively. Mr. Doherty denied that the Claimant was a diligent worker, citing instances of truancy without notification to senior management. Furthermore, oral queries were raised regarding the Claimant’s absences from the site on several occasions. He stated that the Claimant was not paid due to negligence in his duties on site, which resulted in a loss for the Defendant and led to his summary dismissal at the end of April 2018. Mr. Doherty explained that it was impractical for the Claimant, who was terminated at the end of April 2018, to be on site. He also denied the Claimant’s allegation of having spoken with him, noting that the Claimant’s termination was for negligence and collusion. He refuted the Claimant's assertions that he had made complaints, emphasising that the termination was for just cause. Additionally, he stated that at that time, the Defendant was not in operation since he, the Managing Director, and only staff member, was hospitalised for chronic kidney disease. Mr. Doherty concluded that the Claimant is solely responsible for his own misfortunes resulting from his conduct, and the Defendant cannot be held liable for events that occurred in the Claimant’s household in which the Defendant had no involvement.

 

30.     The Claimant worked as a temporary staff member for seven months on the AFN French International School project in Lagos. He was responsible for site administration at the AFN site. Due to the Claimant's conduct, which caused significant damage to the Defendant's reputation, the Claimant's temporary employment was terminated summarily by the Defendant at the end of April 2018. The Claimant's duties included tracking workers' attendance on site, recording the work completed and by whom, and monitoring the inflow and outflow of materials and personnel. This information provided the Defendant with insights into who was present on site at any given time and what tasks were being performed. It also enabled the company to process weekly payments for both skilled and unskilled labour. The Defendant expressed regret over hiring the Claimant and other staff members, as their actions contributed to the loss of a major subcontract with AFN. The Defendant served as the main contractor for the AFN Sports Complex project and was entrusted with significant responsibilities, especially since AFN (Association Francaise de Nigeria), an international French school, had historically never engaged a local contractor for any of its major projects. The Defendant was the first local contractor to be given such a substantial assignment. The Defendant was also offered an additional works contract that involved the design and construction of site piping installations. This additional work was sequenced as follows: design, supply, and installation of the Central Solar Water Heating Piping (Component 1); design, supply, and installation of the water distribution system, including piping from the source to the swimming pool area and the installation of water pumps (Component 2); design, supply, and installation of the adjoining electrical systems (Component 3). Given the Defendant's optimism about being awarded the construction contract for additional works, they proceeded to develop the design at no cost to AFN. The design of the works was completed in February 2018, and the Bill of Quantities was issued to the client, AFN, on 23rd February 2018. Negotiations between AFN and the Defendant took place between February and March 2018. AFN’s consultants, Aim Consultants, further reduced the billed fees upon reviewing the proposal. 

 

31.     Mr. Doherty further stated that on 9th March 2018, AFN emailed the Defendant to inform them that, since the additional works contract for the water distribution element (Component 2) and adjoining electrical installations (Component 3) had been completed, it was unnecessary for the Defendant to carry out any further work. In an email dated 26th March 2018, the Defendant expressed their disapproval, responding to AFN’s email by stating that the works had been carried out without their knowledge over the weekend, when there was no scheduled work, constituting a breach of the Defendant’s contract as the main contractor on site. The Defendant could not guarantee the quality of the completed work. AFN responded to the disapproval, stating that the water distribution works and adjoining electrical installations were carried out by members of the Defendant’s team who were present on-site, and that the Defendant was aware of who executed the work and the manner in which it was carried out. Upon further investigation, the Defendant discovered that the water distribution materials were supplied directly by AFN. The installation work was carried out without the Defendant’s knowledge by their Project Manager, Ebiet Biddy, Quantity Surveyor, James Ogundele, and Accountant, Samuel Williams. These individuals connived with other management staff on-site to obtain and execute Components 2 and 3 using the Defendant’s labourers. These employees, who had previously collaborated with the Defendant in creating the Bill of Quantities for the additional works contract, went behind the Defendant’s back to the client, offering to execute Components 2 and 3 for a reduced price as individuals, undermining the original quotation provided by the Defendant as a company. As a result of these actions, the Defendant lost the contract for Components 2 and 3, valued at N1,385,122.50 and N5,796,000.00, respectively, along with design costs totalling N1,000,000.00. Additionally, the Defendant's supervising Mechanical, Electrical & Plumbing team was unaware of these works and did not supervise them, as they occurred over a weekend when the team was not scheduled to be on-site.

 

32.     Upon inquiry from the Claimant regarding the situation, Mr. Abayomi explained that he was aware that the water distribution work was being carried out by the Project Manager, Ebiet Biddy, and other workers employed by the Defendant. However, he did not take the initiative to find out what they were doing or how their activities aligned with the Defendant's work schedule. As a result, the Defendant suffered a loss under this part of the contract and also sustained damage to its credibility and relationship with AFN. As a local contractor, AFN now assumed that the Defendant had lost control of its on-site staff. The Claimant's nonchalant attitude contributed to this situation, as he focused solely on making additional money on site and failed to inform the Defendant's senior management about what had transpired. This negligence directly led to the Defendant's loss of business and reputation, resulting in irreparable damage to the company's standing with its client, AFN. Consequently, the Claimant was summarily dismissed for gross misconduct without pay. The Defendant believes that the Claimant's claims are malicious and should be dismissed, along with an order for substantial costs, on the grounds that the Claimant is not entitled to any compensation. For the counterclaim, Mr. Doherty reiterated his evidence in support of the defence. He asserts that the Claimant's actions led to the Defendant losing its reputation with the client, AFN. As a result, the Defendant incurred financial losses from investments made in designing AFN's project, with the expectation of securing an additional contract. Furthermore, the Defendant lost the project associated with the main subcontract with AFN. Mr. Doherty also states that the Defendant lost AFN as a client due to the actions of the Claimant, who was the Site Administrator, Bamgbade Wale Emmanuel, the Store Keeper, James Ogundele, the Quantity Surveyor, Samuel Williams, the Accountant, and the Project Manager, Mr. Ebiet Biddy, all of whom were ultimately dismissed by the Defendant. Due to debts and losses sustained during the AFN Sports Complex project resulting from the Defendant’s staff's gross misconduct, the Defendant was forced to halt its operations and suffered further losses. The Defendant claims per the counterclaim. The Defendant tendered 7 exhibits marked as Exhibits D1-D7. These are: AFN email of 26th March 2018 to the Defendant, AFN’s email response to the Defendant’s BOQ dated 23rd February 2018, AFN email of 9th March 2018 confirming execution of the water distribution works, email of revised BOQ dated 1st March 2018, email correspondence of 26th March 2018 between the Defendant and AFN, email dated 23rd February 2018 to AFN on the Defendant’s revised BOQ, and the Defendant’s water distribution drawing. 

 

33.     During cross-examination, Mr. Doherty stated that the documents he referred to indicted the Claimant as the site administrator. He acknowledged that no investigation was conducted against the Claimant before his employment was terminated for collusion. However, he stated that the client admitted that the work was completed by the Defendant’s team. Mr. Doherty admitted that the project manager informed him that the Claimant had missed several days at the site, although the project manager had not worked with them since 2018. In reference to paragraph 9 of his sworn statement, in which he stated that he summarily terminated the Claimant’s employment in April 2018, he was asked whether there was any documentation to support this claim. Mr. Doherty responded that the Claimant was a short-term staff member and that the termination was communicated orally. When asked whether the Claimant was paid for April 2018, Mr. Doherty stated that the Claimant received an advance payment but did not receive the full salary for that month.

 

Evaluation of evidence

 

34.     I have reviewed the pleadings and evidence presented by both parties, including oral and documentary evidence. The Claimant is seeking payment of N150,000.00 for his salary for April 2018, along with damages, costs, and post-judgment interest. The facts of this case are straightforward. The Claimant was employed by the Defendant as a site administrator at the AFN site in Victoria Island for 7 months. He received his salary from October 2017 to March 2018, but his employment ended abruptly in April 2018. While the Claimant asserts that he voluntarily resigned in May 2018 after discussing his situation with the Defendant's Managing Director, the Defendant alleged that the Claimant’s employment was summarily terminated for gross misconduct in April 2018, which they argue disqualifies him from receiving any salary for that month. However, the Defendant did not provide any documentation to support the claim of summary dismissal. The key question, therefore, is whether the Claimant is entitled to his salary for April 2018 and other associated claims.

 

Is the Claimant entitled to the April 2018 salary and other associated claims?

 

35.     The supporting evidence is found in paragraphs 8, 10, 11, 13, 14, 15, 17, and 18 of the Claimant’s sworn statement, as well as in Exhibits 1 and 2. According to the Claimant’s evidence, he worked in April 2018 and was entitled to a salary for that month, but he was not paid. Exhibit 1 indicates that on 26th April 2018, the Claimant received N12,500 from Sandra Odogwu, a staff member of the Defendant, for generator service. Exhibit 2 contains a letter from the Claimant to the Office of the Public Defender, in which he states that his only complaint was the non-payment of his salary for April 2018. The Defendant’s response, in paragraphs 9 and 16 of the Defendant’s witness’s sworn statement, is that the Claimant’s employment was summarily terminated at the end of April 2018. The Defendant also states that the Claimant was not paid his salary due to on-site negligence, resulting in a significant loss of earnings for the Defendant. During cross-examination, the Defendant’s witness claimed that the Claimant received an advance payment of his April 2018 salary, albeit not the full amount. However, this assertion was not supported by any documentary evidence and contradicts the Defendant's claim that the non-payment was due to misconduct.

 

36. Based on the totality of the evidence presented, it is clear that the Claimant worked for the Defendant in April 2018 but did not receive payment for that month's salary. An employee’s salary becomes due, and his right to receive it accrues at the end of each month, as supported by cases such as Underwater Engineering Co. Ltd & Anor v. Dubefon [1995] 6 NWLR (Pt 400) 156 at 164 and Tamti v. Nigeria Customs Service Board & Anor [2009] 7 NWLR (Pt 1141) 631 at 658. Therefore, whether the Claimant’s employment was terminated at the end of April 2018 or in May 2018 is irrelevant to his claim for the salary owed for April 2018. Notably, even in the case of summary dismissal, an employee is not deprived of earned wages and allowances; such dismissal only disqualifies the employee from end-of-service benefits, as established in Ulegede & Anor v. The Military Administrator, Benue State & Ors [2001] 2 NWLR (Pt 696) 73 at 91 and Odunlami v. The Nigerian Navy [2013] 12 NWLR (Pt 1367) 20 at 56. Consequently, I find that the Claimant has satisfactorily proved his claim for the salary due for April 2018. 

 

37.     The Claimant also claims general damages, costs, and post-judgment interest. General damages are those damages that the law presumes to be the direct, natural, or probable consequence of the act in question. They are a type of monetary compensation awarded at the Court’s discretion to alleviate the loss caused by the actions of the opposing party, as established in Nigerian Railway Corporation v. Ojo [2021] LPELR-55971[CA] 40-41. General damages are intended to compensate for actual injury. To qualify for an award of general damages, the Claimant must demonstrate that he has suffered a legally recognisable loss, as illustrated in Ecobank Nigeria Limited v. Saleh [2020] LPELR-52024[CA] 83-85. In paragraphs 19 and 20 of his sworn statement, the Claimant claimed that he is the breadwinner of his family and that the acts of the Defendant have caused him anguish, serious depression, trauma, loss of other economic prospects, as well as deterioration in his health. The Claimant further stated that the Defendant’s refusal to pay his salary created serious hardship for him, as well as a strain in the relationship with his family, as he could not cater to their needs for the said period before he got another job. However, juxtaposed with paragraphs 9 and 16 of the Defendant’s witness’s sworn statement, it is evident that the Claimant contributed to the non-payment of his April 2018 salary. Interestingly, it is not clear how the non-payment of one month’s salary caused this effect. Additionally, was that the probable consequence of the non-payment of his salary? I do not think so. Therefore, I find as a fact that the Claimant has not established a legally recognisable loss to entitle him to damages. 

 

38.     It is axiomatic that costs follow the event in litigation, and a successful party is entitled to his costs, unless there are special reasons to deprive him of costs. See DHL International Nigeria Limited v. Eze-Uzoamaka & Anor [2020] 16 NWLR (Pt 1751) 445 at 500. The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. This Court has unfettered discretion to award cost which discretion must, in all circumstances, be exercised judicially and judiciously. See Order 55, Rules 1 and 5 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. This action could have been avoided if the Defendant accepted the olive branch from the Office of the Public Defender to amicably settle this matter. It did not, and even after this suit was filed, it still refused. Given these circumstances, I find as a fact that the Claimant is entitled to the costs of this action. The award of post-judgment interest is statutory and subject to the discretion of the Court. See Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, and Hausa v. First Bank of Nigeria Plc [2000] 9 NWLR (Pt 671) 64 at 72. In that case, Akpabio, JCA [as he then was], noted that post-judgment interest, as its name implies, is usually awarded by the Court at the end of the trial, after the amount of the judgment debt has been determined. And because there is usually no agreement between the parties on this in advance, the matter is left to the Court's discretion at the end. I am of the firm view that the Claimant is entitled to post-judgment interest based on the facts and circumstances of this case.

 

          In the premises, the first issue for determination is resolved partially in favour of the Claimant.   

 

          Consideration of the reliefs

 

39.     The first claim seeks an order that the Defendant should pay the Claimant the sum of N150,000.00 [one hundred and fifty thousand naira] as the outstanding salary for April 2018. I found in this judgment that the Claimant has established his entitlement to this claim, which is accordingly granted.

 

40.      The second claim is for general damages in the sum of N500,000.00 [five hundred thousand naira] against the Defendant for the hardship, psychological pain, inconvenience, discomfort, and emotional stress, or whatsoever occasioned on the Claimant. I found in this judgment that the circumstances of this case do not justify an award of damages to the Claimant. Consequently, this claim is denied.

 

41.     The third claim is for the cost of this action assessed at N150,000.00 [one hundred and fifty thousand naira]. As noted in this judgment, costs follow the events in litigation, and a successful party is entitled to his costs. Additionally, this Court has unfettered discretion to award costs on an indemnity basis in deserving circumstances under Order 55, Rule 5 of the Rules. I hold that the Claimant is entitled to the cost of this action. The Court considers several factors, including the filing fees paid, the vexatious nature of the defence, the cost of legal representation, the monetary value at the time the expenses were incurred, and the currency's value today. Please refer to Chijioke v. Soetan [2006] 11 NWLR (Pt 990) 179 at 217-218 and Adelakun v. Oruku [2006] 11 NWLR (Pt 992) 625 at 650. In this case, evidence of the cost of legal representation is not available in the Court’s records. The documented expenses are N8,220. The Claimant participated in these proceedings five times and was represented by counsel seven times. The case lasted approximately 50 months in this Court and six years since it was filed. After thoroughly considering all the facts and circumstances, including the attempt by the Office of the Public Defenders of the Lagos State Ministry of Justice, I hold that the Claimant is entitled to the costs of this action, and I award him N150,000.00 [one hundred and fifty thousand naira] in costs as claimed.

 

42.     The fourth claim seeks post-judgment interest at the rate of 10% per annum from the date of judgment until total liquidation by the Defendant. This Court is empowered under Order 47, Rule 7 of the Rules to award post-judgment interest at a rate not less than 10% per annum. I found in this judgment that the Claimant is entitled to post-judgment interests given the circumstances of this case. This claim is, therefore, granted. 

 

Issue two: Is the Defendant entitled to judgment on the counterclaim?

 

43.     The counterclaim is detailed in paragraph 2 above. A counterclaim is an independent action, and the burden of proof rests on the Defendant to demonstrate to the Court that it deserves a judgment on its claims. This principle is established in Sections 131 and 136 of the Evidence Act, as well as in the cases of Faloyo v. Faloyo & Anor [2021] 3 NWLR (Pt 1762) 114 at 135 and Tyonex Nigeria Limited & Anor v. Pfizer Limited [2020] 1 NWLR (Pt 1704) 125 at 161. The Defendant adopted the evidence in support of the defence to the principal claim as its evidence for the counterclaim. Although the Claimant filed a reply to the statement of defence and defence to the counterclaim on 26th May 2023, the process is unsigned and undated. The law is clear: an unsigned document has no legal efficacy. Such a document is worthless and commands no legal value. Please refer to The State v. Sai’du [2019] 10 NWLR (Pt 1680) 308 at 320 and Conoil v. Vitol S.A. [2018] 9 NWLR (Pt 1625) 463 at 492. Additionally, there is no supporting witness statement on oath, rendering the reply and defence to the counterclaim abandoned, as noted in Mohammed v. Klargester [Nig.]. Ltd [2002] 14 NWLR (Pt 787) 335 at 367, Nigerian Gas Co. Ltd v. Dudusola [2005] 18 NWLR (Pt 957) 292 at 316, and Atoyebi & Ors v. Bello & Ors [1997] 11 NWLR (Pt 528) 268 at 281. In the latter case, the Court of Appeal held that where there is no defence to a counterclaim, the allegations in the counterclaim remain unanswered and unchallenged, and such allegations ought to be considered admitted. Therefore, I hold that there is no defence to the counterclaim, and the averments in the counterclaim are deemed admitted.

 

44.     Nonetheless, this does not entitle the Defendant to an automatic judgment on the counterclaim, as established in Elewa & Ors v. Guffanti Nigeria Plc [2017] 2 NWLR (Pt 1549) 233 at 248. The evidence presented by the Defendant must justify the grant of the counterclaims. If the evidence cannot support the counterclaims, the Defendant has not discharged the burden of proof, and the counterclaim will fail, even in the absence of a defence, as noted in Erinfolami v. Oso [2011] LPELR-15357 [CA] 18.

 

45.     Notably, claims for special damages must be specifically pleaded and proved, even if a defence is absent. This the Defendant did not do. The essence of the counterclaim is that, due to the negligence of the Claimant and others not party to the counterclaim, the Defendant lost the subcontract with AFN. Therefore, the Defendant is claiming N1,000,000.00 as special damages for the design of the additional work components. This claim, being one for a specific amount, must be pleaded and strictly proven. In this case, the Defendant did not provide sufficient details. The supporting pleadings are in paragraphs 20 to 29 of the statement of defence and paragraph 33 of the counterclaim, reiterated in similar paragraphs of the Defendant’s witness’s sworn statement. The Defendant’s evidence is that it was offered an additional works contract for the design and construction of site piping installations, divided into three components. The Defendant, optimistic about securing the contract, developed the design at no cost to AFN. However, the Defendant later discovered that the water distribution materials were supplied directly by AFN and that the installation was conducted by its own staff, without the Defendant's knowledge, at a reduced price. As a result, the Defendant lost contracts valued at N1,385,122.50 and N5,796,000.00 for Components 2 and 3, as well as N1,000,000.00 in design costs. The Defendant's supervising Mechanical, Electrical & Plumbing team was unaware of these activities, which occurred over a weekend when they were not on-site. Mr. Abayomi confirmed that he was aware of the work being done but did not investigate its alignment with the Defendant's schedule. Consequently, the Defendant incurred financial losses and damage to its reputation with AFN. Apart from the absence of any direct evidence of the Claimant’s involvement in the bidding for and award of the subcontract to the Defendant’s staff, there is no evidence on how the Defendant arrived at the N1,000,000.00 design costs. Although the Defendant relied on seven exhibits marked D1-D7, none of the exhibits indicted the Claimant or proved the N1,000,000.00 in design costs. Therefore, I find as a fact that the Defendant has not substantiated the claim for N1,000,000.00 design costs. 

 

46.     On the claims for general damages and costs, the law is trite that general damages are those damages that the law presumes to be the direct, natural, or probable consequence of the act in question. They are a type of monetary compensation awarded at the Court’s discretion to alleviate the loss caused by the actions of the opposing party, as established in Nigerian Railway Corporation v. Ojo [supra]. General damages are intended to compensate for actual injury. To qualify for an award of general damages, the Defendant must demonstrate that it has suffered a legally recognisable loss through the actions or omissions of the Claimant, as illustrated in Ecobank Nigeria Limited v. Saleh [supra]. I found in the preceding paragraph that the Defendant did not establish the claim for N1,000,000.00 design costs. Moreover, while the Claimant may have been guilty of a gross dereliction of duty, there is nothing from the evidence before me that renders the Claimant liable in damages to the Defendant. The submission of the revised BOQ and the award of the subcontract were executed from the Defendant’s office, not the site where the Claimant managed. As evident from the evidence, the officers involved in the subcontract were senior officers, and the Claimant could not prevent its execution at the site. Any way one looks at it, it is impossible to hold the Claimant liable to the Defendant for damages from the facts and circumstances of this case. Therefore, I find that the claim for general damages has not been established.

 

47.     On costs, while costs follow the event in litigation, and a successful party is entitled to costs, unless there are special reasons to deprive that party of costs, as established in DHL International Nigeria Limited v. Eze-Uzoamaka & Anor [supra]. The principal claims have been refused, and the Defendant was held liable to the Claimant in the main action. The basis for the award of costs to the Defendant, therefore, does not exist. Accordingly, I also find that the Defendant is not entitled to costs.

 

In conclusion, the second issue for determination is resolved against the Defendant.

 

Consideration of the reliefs

 

48.     The first relief is for the sum of N1,000,000.00, being special damages for the design of the additional works components. I found in this judgment that the Defendant has not substantiated this claim. Accordingly, it is denied.

 

49.     The second relief is for the sum of N20,000,000.00 [twenty million naira], being general damages. While the award of damages is discretionary, I found in this judgment that the basis of the award of damages against the Claimant does not exist, given the Defendant’s failure to establish that the injury it allegedly suffered is the direct probable consequence of the Claimant’s breach of duty. There is no connection between the breach of duty and the losses the Defendant suffered. Therefore, this claim also fails, and it is denied.

 

50.     The third relief is for costs of this action in the sum of N5,000,000.00. I found in this judgment that the Defendant is not entitled to the costs of this action. Therefore, this claim is denied.

 

51.     In the final analysis, the Claimant’s suit succeeds partially. Reliefs 1, 3, and 4 are granted. Relief 2 is dismissed. The counterclaim is also dismissed.

 

Judgment is entered accordingly.

 

 

 

…………………………………..

IKECHI GERALD NWENEKA

JUDGE

          27/1/2026

 

 Attendance: Parties absent

 

          Appearances

 

Olufemi Oyewole, SAN, with Uzoamaka Ikpeazu Esq. for the Claimant

          Thompson A. G. Ivory Esq. with Mrs. Chioma A. Ozoma for the Defendant