Barakatarris Nigeria Limited -VS- Dr. Ufuoma Akparorue & 2 ORSNational Industrial Court of Nigeria- Judgment Portal

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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE E. N. AGBAKOBA

DATED: 27^TH JUNE, 2023

SUIT NO. NICN/ABJ/243/2021

BETWEEN:

BARAKATARRIS NIGERIA LIMITED …………………………… CLAIMANT

AND

1. DR. UFUOMA AKPARORUE

2. MR. PATRICK OLUFEMIDADA .......................................... DEFENDANTS

3. MR. DEBIS AKPARORUE

REPRESENTATION

M. S. AREMO for the Claimant

OLUFEMI ADIGUN for the 1^st and 3^rd Defendants

FEMI IBITOYE for the 2^nd Defendant

JUDGEMENT

1. On the 9^th March 2023 this matter was adjourned to 2^nd May 2023 for Adoption of Final Addresses, on the 2^nd May 2023 the Court learnt that both the 2^nd and 3^rd the Defendants had filed their respective final written addresses three days prior (on the 28^th April 2023)the then Court intimated Parties before the Court that in the absence of the Defendant the Court would evoke the provisions of Order 45 NICN Civil Procedure Rules 2017and adopt the written addresses filed in this suit and with this Judgement being delivered today.

2. The Claimant by a Complaint dated 15^th September 2021 had instituted an action in the Honourable Court seeking the following reliefs:

1. The Sum of N5, 754,335.00 (Five Million, Seven Hundred and Fifty—Four Thousand, Three Hundred and Thirty-Five Naira Only) being the total value of Claimant’s goods the 1^st Defendant absconded with and payment of same guaranteed by the 2^nd and 3^rd Defendants pursuant to pre-employment Guarantor undertaking signed on the 16^th and 17^th February 2021.

2. An order against the 2^nd and 3^rd Defendants being guarantors to the 1 Defendant in terms of pre-employment guarantor undertaking signed with the Claimant on the 16/02/2021 and 17^th February 2021 respectively to pay the cost of the Claimant’s applicant’s loss or damages which arise during the course of the 1st Defendant’s employment to immediately do so now.

3. The sum of N15, 000,000.00 (Fifteen Million Naira) only for punitive damages jointly and collectively against all the Defendants.

4. N5 Million (Five Million Naira) only as cost of this action.

5. The Solicitors fees in the sum of N3Million (Three Million Naira) only.

6. 30% interest are on the judgment sum from the date of judgment until final liquidation. And the sum of N ________________________(a) (or such sum as may be allowed on taxation) for costs, and also in case the Claimants Obtains an order for substituted service, the further sum of N________________________ (or such sum as may be allowed on taxation). If the amount claimed to be paid to the Claimants or their legal practitioner or agent within four days from the hereof, further proceedings will be stayed.

3. Provided that if it appears from the endorsement of the writ that the Claimant is resident outstanding the scheduled territories, as defined by the Exchange Control Act, or is acting by order or on behalf of a person so resident, or if the Defendant is acting by order of on behalf of a person or resident, proceedings will only be stayed if the amount claimed is paid into Court within the said time and notice of such payment is given to the Claimants, their solicitor or agent.

CLAIMANT’S CASE

4. The Claimant is a Nigerian company with its business office in Abuja dealing in Energy drinks, dog foods among others. The 1^st Defendant is an employee of the Claimant in Abuja as a Sale Representative to cover Lagos market, the 2nd Defendant is a senior banker with Stanbic IBTC bank and the principal Guarantor for the 1^st Defendant with respect to his employment with Claimant in Abuja and the Defendant is said to be the father of the 1st Defendant and also the second guarantor to the 1^st Defendants with respect to his employment with the Claimant. The 1^st Defendant applied to the Claimant in its office in Abuja as a sale representative via his application letter dated 15th February, 2021. And as part of the conditions for his employment consideration, the 1^st Defendant was requested to provide two sureties that would be able to warrant his fidelity, impeccable character and would be liable to the Claimant in case of loss among others occasioned to the Claimant by the or omission of the 1^st Defendant. The 1^st Defendant presented the 2nd Defendant as his principal guarantor and one other person being his father. And upon satisfaction and also signing of the Guarantor/undertaking form by the 2^nd Defendant, the Claimant relying on the representations made by the 2^nd Defendant as a banker employed the 1^st Defendant.

5. In standing as a guarantor to 1^st Defendant the 2^nd and 3^rd Defendants undertook not only to produce the 1^st Defendant when the need arise but also to pay for any lost caused to the Claimant. The 1st Defendant by his employment terms, was mandated never to sell to customers or release any goods to customers on any account on credit. Consequent upon the employment of the 1st Defendant, an account was created for him with the Claimant to record all his transactions both credit and debts in respect of the goods he is to sell for the Claimant. The 1^st Defendant is to only sell goods with him on cash and carry basis and immediately remit cash sale to Claimant as the goods is sold daily.

6. On the 19th day of February, 2021, 1^st Defendant was given the first shipment of dog foods from Abuja totaling the sum of N5, 271,000.00 [Five Million, Two Hundred and Seventy One Thousand Naira] only with invoice no. 2119 wherein the sum of 300, 000. 00{Three Hundred Thousand Naira} was outstanding as at 30th March 2021 as per his transaction records with the Claimant. The 1st Defendant upon requesting, another dog’s food shipment was sent to him on the 30th of March, 2021, via invoice no. 2130 in the sum of 6, 359,500.00 [Six Million, Three Hundred and Fifty Nine Thousand Naira only. Following the receipt of the second shipment, the 1st Defendant suddenly stopped making remittance to the Claimant for days and that on the 21st April, 2020 the 1st Defendant total non- remittance stands at 6,004, 335.00.[Six Million, Four Thousand, Three Hundred and Thirty Five Thousand Naira only. The Claimant became apprehensive of the 1^st Defendant’s sudden behavior on the non-remittance between 22nd April to 29th April 2021 a period of 8days then sent the Defendant’s Sale Manager/supervisor to Lagos to go and find out what could be responsible for same. The Sale Manager/supervisor went to Lagos on Friday the 30th April, 2021 and informed the 1st Defendant of his presence in Lagos and also sought to meet with the 1st Defendant to find out if there is any challenge with the sale of the goods supplied to him to which the 1st Defendant refused to see the Sale Manager/supervisor. When it became obvious that the 1^st Defendant was not willing to see the Sale Manager/supervisor, the 2nd Defendant was immediately contacted to prevail on the 1st Defendant to see the supervisor but still the 1^st Defendant did not. The 2nd Defendant prevailed on the Sale Manager/supervisor to wait till Monday being the 3^rd May, 2021 after reaching out to 1^st Defendant and that he will surely see him on that Monday but none of the Defendants see the supervisor despite several efforts made. This happened barely 2 months of the 1st Defendant employment with the Claimant. The 1st Defendant switched off his hone and is still not reachable till date and all efforts to see him proved abortive, also a visit to his last known address shown Ojo Lagos revealed that he has packed out to unknown destination. The Claimant suspecting a foul play between the Defendant and his guarantors, the Claimant laid a complaint to the police initially at Alagbon for discreet investigation and to assist tracking down the 1st Defendant but all efforts proved abortive as police could not do anything due to the 2^nd Defendant and other guarantor not cooperating with them by refusing to honour the police investigation and not offering any useful information. Due to the none cooperation of the 2nd and 3rd Defendants with the police in Lagos and by not producing the 1^st Defendant, the Claimant wrote a formal petition to Force CID Area 10, Abuja consequent upon which the 2nd Defendant was invited but by the police, they blatantly refused instead the 2nd Defendant rushed to court to filed for fundamental right action against the Claimant for making a report and writing the petition wherein the Claimant had to hired the services of a lawyer to defend its interest which caused it the sum of N1, 000,000.00(One Million Naira) Only. When it became obvious that the 2nd and 3rd Defendants could not produce the 1 Defendant, the Claimant caused a demand to be made on them both orally and formally by letter dated 30^th July, 2021 which same was sent to the 2nd and 3d Defendants on the 6h July 2021 via their respective WhatsApp numbers.

7. The Defendants are liable for the sum of N5, 754,335.00 [Five Million, Seven Hundred and Fifty Four Thousand, Three Hundred and Thirty Five Naira] only, being the cost of the goods the 1st Defendant absconded with. also all the expenses incurred in hiring lawyers, sending the manager to Lagos, in defending the action filed against it and in filing the present action in line with 2nd and 3rd Defendant Guarantor’s undertaking signed with the Claimant.

2^nd DEFENDANT’S STATEMENT OF DEFENCE (filed 1^st NOVEMBER 2021)

8. The 2^nd Defendant denied paragraphs 1,2,3,4,5,6,7,8,9,10,11,12,13, 14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30,31 and 32 of the Claimant’s Statement of Claim and put the Claimant in the strictest proof of the facts contained therein.

In response to paragraphs 3 and 7 of the Statement of Claim, the 2^nd Defendant averred that he is not the Principal Guarantor of the 1st Defendant as alleged by the Claimant.

The 2^nd Defendant maintained that in response to paragraph 8 of the Statement of Claim, he has never been invited and has never appeared before the Claimant to answer any questions about the 1^st Defendant or anything or issue at all. The 2nd Defendant had never had any interaction with the Claimant until it received calls from its representative about the alleged default of the 1^st Defendant around April 2021. The 2nd Defendant denies that the 1st Defendant has refused to remit the sum of N 6,004,335.00 (Six Million, Four Thousand, Three Hundred and Thirty Five Thousand Naira) only or any sums at all to the Defendant and puts to the strictest proof thereof. The authenticity of the of the Claims of the Claimant for the sum of N 6,004,335,00 or any sums at all against the 1st Defendant is false and does not arise out of the normal cause of the 1^st Defendant Employment with the Claimant and does not invoke any liability against the 2nd Defendant.

9. In response to paragraph 13 and 14, the 2nd Defendant maintained that the Claimant did not exercise due care and diligence when it allegedly released additional goods worth N 6, 359,500.00 to the 1st Defendant on the 30th March 2021, when the 1st Defendant allegedly failed to remit a balance of N 300,000.00 from the initial goods allegedly worth N 5,271,000.00 earlier released to him on the 19th February 2021. Further, had the Claimant exercised due care, it would have limited its alleged loss to N 300,000.00 only especially considering that the Claimant has pleaded that the Company had a non-credit policy. The 2nd Defendant avers that the alleged loss of the Claimant in paragraph 14 is as a result of The Claimant’s negligence.

10. The particulars of the Claimant’s negligence are stated in his Averments as;

a. The 1st Defendant was obliged to sell on cash and carry basis.

b. The 1st Defendant was obliged to immediately remit proceed of sale to the Claimant and an account was said to be created for that purpose).

c. By virtue of Claimant’s averment in Paragraph 13 of the Statement of Claim, the Claimant became aware that there was outstanding remittance on the part of the 1st Defendant as at 30th March 2021, which was against the Service Agreement.

d. The Claimant despite of the facts contained in (iii) above, still released or issued out goods to the 1st Defendants when there was no explanation as to why there was an outstanding remittance on the earlier transaction.

e. If the Claimant had exercised due care and diligence, with regard to their alleged dealings/transaction with the 1st Defendant, the purported loss would have been avoided/mitigated.

11. That the 2nd Defendant was bewildered when he started receiving calls and invitation from the Nigerian Police Force, harassing him and inviting him for interrogations on the alleged/purported indebtedness of N 6,004,335,00.00 (or any sums at all) by the 1st Defendant to the Claimant. The 2nd Defendant has a constitutionally guaranteed right of access to Court and right to seek redress from Court whenever his Fundamental Human Rights is being or about to be threatened.

12. The 2nd Defendant continued that paragraph 23 of the Statement of Claim is entirely false and that the 2nd Defendant never received any Formal or Oral Demand from the Claimant as alleged in the said paragraph. The Claimant never sent any demand letter or WhatsApp message whatsoever to it about the alleged indebtedness of the 1st Defendant. The 2nd Defendant particularly denies the allegations of facts contained in 24-32 of the Statement of Claim and puts the Claimant to the strictest proof thereof. That in respect of paragraph 27, the 2nd Defendant averred that the Claimant has never called upon the 2nd Defendant whether vide a letter, WhatsApp message or orally to honour the terms of his guarantee agreement. And the Claimant has not until the service of this suit on the 2nd Defendant demanded any sums owed it by the 1^st Defendant. The 2nd Defendant also denies that the 1st Defendant owes the Claimant the sum of N 5,754,355.00 or any sums at all claimed by the Claimant and states that there is no proof that the 1^st Defendant owed it the sum of N 5,754,355.00 which it now claims against the 2nd Defendants in this suit. The Claimant is therefore put in the strictest proof of paragraph 24 of the Statement of Claim.

13. The 2nd Defendant denies liability for any loss suffered by the Claimant which may arise as a result of the 1^st Defendant’s employment or alleged non-remittance. The 2nd Defendant expressly denies liability for N15, 000,000.00 (Fifteen Million Naira) punitive damages claimed against the 2nd Defendant or other Defendants by the Claimant. The 2nd Defendant hereby denies liability for the N 5,000,000.00 allegedly incurred by the Claimant as cost of this action. The 2nd Defendant, having not being a party to the relationship between the Claimant and his Solicitors, denies any liability for the N 3,000,000.00 Solicitors Fees allegedly paid by the Claimant.

14. The 2nd Defendant contends that the Fundamental Human Right Enforcement Suit (LD/1 160/MFHR/2021) currently pending at the High Court of Lagos State and all issues relating to cost in respect of that suit is the exclusive preserve of the Lagos State High Court in that case. The Claimant averred that this Honourable Court cannot be in a position to prejudge the outcome of a case not pending before it as sought by the Claimant in paragraph 22 of its Statement of Claim. The 2nd Defendant maintains that since the Claimant has refused to formally demand the alleged indebtedness of the 1^st Defendant from the 2nd Defendant before filing this suit, the Claimant is not entitled to any of the reliefs sought in paragraph 32 of the Statement of Claim.

CLAIMANT’S REPLY TO 2^ND DEFENDANT’S STATEMENT OF DEFENCE (Filed 8^th NOVEMBER 2021)

15. In replying 2^nd Defendant Statement of Defence, Claimant specifically stated that:

Paragraph 1 and 2 of the 2nd Defendant’s Statement of Defence, the Claimant relied on the guarantee agreement signed by the Defendant on the 16th February, 2021 and state further, he was the first Guarantor to sign. Aside this, there is no dichotomy between the 2nd and 3rd Defendants as they are both equally liable to the Claimant per content of the guarantee form signed.

16. With regard to Paragraph 3, 4 and 5 of the 2nd Defendant’s Statement of Defence, aside the interaction prior to his acceptance as a guarantor to the 1^st Defendant, the Claimant maintained an up to date and prompts information with the 2^nd Defendant which led to the call in April 2021 as alluded to when the 1^st Defendant disappeared with the Claimant’s goods. If the 2nd Defendant denies non-remittance, why did he refuse to honour police invitation to state so? With regards to Paragraph 6, 7 and 8 of the 2^nd Defendant’s Statement of Defence, the Claimant is not in any way negligence in all its dealings with any of the Defendants in this case, the 1^st Defendant who was principally employed as Sale Representative was to received goods from the Claimant on credit but not to sell to any customer on credit. That is the operation of no credit policy of the Claimant as clearly and expressly stated in the agreement dated 18/02/2021. The second batch of goods supplied to 1st Defendant was in line with the agreement and the duty as Sale Representative. The 2nd Defendant could not have been surprised having been told promptly of the disappearance of the 1^st Defendant with the Claimant’s goods and the amount as well as notice of demand sent to him which till date, he didn’t respond to and the purported Fundamental Enforcement was a ruse and clearly designed to make the 2nd Defendant avoid meeting his obligation.

17. With regards to Paragraphs 9, 10, 11, 12, 13, 14 and 15 of the 2nd Defendant’s Statement of Defence, the 2nd Defendant couldn’t only produce the 1st Defendant as alleged in said paragraph 23 of the statement of claim among others till date, the phone number +234183998963 belong to the Defendant which he uses for telephone conversation as well as for his WhatsApp.

3rd DEFENDANT’S STATEMENT OF DEFENCE (filed 8^th December 2021)

18. 3^rd Defendant denied all allegations in the statement of facts except where otherwise stated

In response to Paragraph 8 of the Statement of Claim, 3rd Defendant averred, he has never been invited and has never appeared before the Claimant to answer any questions about the 1^st Defendant or anything or issue at all. The 3^rd Defendant had never had any interaction with the Claimant on any issue at all. And even though the 3^rd Defendant did not have any interactions with the Claimant the 3^rd Defendant was aware that the contractual arrangement between the Claimant and the 1^st Defendant was a cash and carry basis (no credit) and it was on this basis that the 3^rd Defendant signed the contract of guarantee. Replying Paragraph 9 of the Statement of Claim that the 3^rd Defendant undertook to be liable for liabilities on the basis that the contract between the 1^st Defendant and the Claimant herein is a no-credit basis.

19. 3rd Defendant admits Paragraphs 12 and 11 of the Statement of Claim stated that the 3rd Defendant perfectly understood that where the 1^st Defendant sells goods on credit or fails to remit money for goods sold the Claimant would he under no obligations to give the 1st Respondent any other goods save the outstanding sum is liquidated. Replying Paragraphs 13, 14, 15. 16, 17, 18, 19. 20 of the Statement of Claim, 3^rd Defendant stated that the he is not in a position to admit or deny the said Paragraphs and puts the Claimant to the strictest proof.

20. In response to Paragraphs 13 and 14, the 3rd Defendant averred that the Claimant did not exercise due care and diligence when it allegedly released additional goods worth N 6, 359,500.00 to the 1st Defendant on the 3Oth March 2021, when the 1St Defendant allegedly failed to remit an alleged balance of N 300,000.00 from the initial goods allegedly worth N 5,271,000.00 earlier released to him on the I9th February 2021. If the Claimant exercised due care, it would have limited its alleged loss to N 300,000.00 only especially considering that the Claimant has pleaded that the Company had a non-credit policy. The alleged loss of the Claimant in Paragraph 14 is as a result of The Claimant’s negligence.

21. The 3rd Defendant is not in a position to deny Paragraph 28 of the Statement of Claim and puts the Claimant to the strictest of proof. He denied Paragraphs 29, 30, 32 of the Statement of Claim. The 3rd Defendant signed the contract of guarantee because the 3rd Defendant was fully aware that the Claimant had a non-credit policy. Therefore the contractual agreement between the Claimant and the 1st Defendant which the 3rd Defendant guaranteed does not involve giving goods to the 1st Respondent on credit. The no-credit policy of the Claimant would not allow the Claimant to give the 1^st Respondent any additional goods where there is an alleged outstanding amount. The Claimant changed the no-credit policy when the Claimant gave the 1^st Defendant goods with an alleged outstanding of N300, 000.00.

22. Immediately the Contractual arrangement between the Claimant and the 1st Defendant changed the Claimant has a duty to inform the 3rd Defendant. As Informing the 3rd Defendant of the change in contractual arrangement between the 1^st Defendant and the Claimant would enable the 3rd Defendant to decide whether the 3rd Defendant will continue with the contract of guarantee. The 3rd Defendant averred that if the Claimant informed the 3rd Defendant of the change in no-credit arrangement the 3rd Defendant would have filed a notice in writing to be discharged from the contract of guarantee. Immediately the 1st Defendant and Claimant changed to a no-credit arrangement and failed to inform the 3rd Defendant of the change in policy the 3^rd Respondent was automatically discharged from the contract of guarantee. The Contract of guarantee has been altered without the 3rd Defendant’s consent by the change in contractual arrangement between the Defendant and the Claimant. The said alteration is substantial and prejudicial to the 3rd Defendant.

23. 3rd Defendant averred that the Claimant had the duty to inform him of the failure of the 1st Defendant to remit an alleged earlier balance of N300, 000.00 but failed to do so. If the Claimant had informed the 3rd Defendant of an alleged earlier balance of N 300,000.00 the 3^rd Defendant would have been in a good position to remedy the situation.

24. The Claimant did not act in good faith by giving the 1^st Respondent an alleged additional sum of goods worth N 6, 359,500.00.

Particulars of Bad Faith:

a. The 1st Defendant allegedly failed to remit a balance of N 300,000.00 from the initial goods allegedly worth N 5,271,000.00.

b. Despite the failure to so remit the Claimant allegedly gave goods worth over Six Million Naira to the 1st Defendant.

c. The Claimant never informed the 3^rd Defendant of the failure of the 1^st Defendant to so remit the alleged sum of N 300,000.00.

d. The Claimant knew that if the 3^rd Defendant was put on notice of the initial failure to remit the alleged sum of N 300,000.00 the 3rd Defendant would be in a good position to remedy the situation hut the Claimant did not care because of the wrong belief that the 3^rd Defendant would ordinarily bear the burden of liability.

25. The 3rd Defendant averred that before signing the contract of guarantee the 3rd Respondent understood that the Claimant had a no-credit policy and the 1st Respondent might incur other liabilities but not continued liabilities for additional goods on credit. The Claimant was negligent in his dealings with the 1st Respondent by allowing an alleged additional goods of over Six Million to be given to the 1st Respondent when there is an alleged liability of N300, 000.00.

The particulars of the Claimant’s negligence are stated in his Averments as;

a. The 1st Defendant was obliged to sell on cash and carry basis.

b. The 1st Defendant was obliged to immediately remit proceed of sale to the Claimant and an account was said to be created for that purpose).

e. If the Claimant had exercised due care and diligence, with regard to their alleged dealings/transaction with the 1st Defendant, the purported loss would have been avoided/mitigated.

26. Replying to Paragraph 23—32 of the Statement of Claim, 3^rd Defendant averred that as at the time the Claimant sent the alleged text message the 3 Respondent had already been discharged from the contract of guarantee. The discharge occurred when the Claimant allowed additional goods to the 1^st Defendant when the contract stipulation is a no-credit policy.

27. The 3rd Defendant denied that the 1^st Defendant owes the Claimant the sum of N5, 754,355.00 or any sums at all claimed by the Claimant and states that there is no proof that the 1^st Defendant owed it the sum of N 5,754,355.00 which it now claims against the 3^rd Defendant in this suit.

CLAIMANT’S REPLY TO 3RD DEFENDANT’S STATEMENT OF DEFENCE (filed 15^th December 2021)

In replying 3^rd Defendant Statement of Defence, Claimant specifically stated that:

28. With respect to Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the 3rd Defendant’s Statement of Defence, the Claimant relies on the guarantee agreement signed by the 3rd Defendant on the 17th February, 2021 and state further, the 3^rd Defendant is the father of the 1st Defendant and signed as Guarantor in that manner. Aside this, there is no dichotomy between the 2nd and 3rd Defendants as they are both equally liable to the Claimant per the content of the guarantee form signed and their unlimited. Further responding to the above paragraph, the 3rd Defendant is clearly economical with the truth aside having interaction before signing the guarantee form, he is fully aware that the son (1st Defendant) is being employed as a SALE REPRESENTATIVE and a staff and not a customer to the Claimant. Aside, the Claimant call the Defendant when he got Lagos from Abuja to check on the 1st Defendant immediately the incident occurred leading to report being made to Alagbon Police Station which led to invitation that 3rd Defendant did not honour till date. The voice audio record communication where he confessed the refusal to honour police invitation as he was advise not go by his lawyer and being aware of the incident, is listed as document and there he confirmed the 1st Defendant was living with him until he recently moved out. Also the contents of the guarantee agreement didn’t make any reference whatsoever to no credit policy and the Claimant had no interaction with the Defendant on such, the no credit policy is only for customers, the 1st Defendant ran away with the goods given to him to sell and not that he release goods to customers on credit.

29. The 1st Defendant who was in Lagos confirmed goods of 300,000.00 in stock and thus entitled to have possession of the goods given to him from Abuja until it is sold, this is the position but upon receipt of additional goods, the 1st Defendant ran away with all the goods in his possession. The 3rd Defendant claimed to have known the 1st Defendant for 40years definitely knows the true identity and personality of his son before standing as his guarantor but he hid this, and also his ability to produce 1st Defendant is being required now to enable the 1st Defendant disprove or react to the fact but he has failed to do so. Further replying, the loss of the Claimant is due to the nonchalant displayed by 3rd Defendant who being inform timeously ignored the Claimant even till date, the demand made too was ignored. The Claimant exercised due care and diligence in dealing with 1st, 2nd and 3rd Defendants which led to quick detection of the disappearance of 1st Defendant and immediate notification. The 3rd Defendant claim to be over 80years as reason not to come Abuja to honor police invitation but has quickly and secretly came to Abuja at the registry of this court on the 8th December 2021 to appear before the for Commissioner for oath and signed depositions but intentionally refused to attend court proceedings of that day as a mark of disrespect to the court.

30. In response to paragraphs 10, 11, 12, 13, 14, 15, 16, and 17 of the 3rd Defendant’s Statement of Defence, the 1st Defendant is employed as sale representative and by his duty he is to collect goods and sell to customers at no credit and not that he buys from the Claimant. The 1st Defendant has goods of N300, 000.00 in his stock out of N5, 271.000.00 goods given to him as confirmed to the Claimant, there is nothing like no credit policy in this regard. There is no change in the contract agreement between the 1st Defendant and Claimant till he ran away with the goods in his possession. In reply to paragraphs 18, 19, 20, 21, 22 and 23 of the 3rd Defendant’s Statement of Defence, the Claimant at all-time acted in good faith in given the 1st Defendant goods and not at all negligence, the 3rd Defendant who is aware that his son ran away with Claimant goods did nothing till, he later claim that he is over 80 years old and wouldn’t be able to honour police invitation in Abuja however tuned out from Lagos to appear before commissioner for oath in Abuja before the court to swear to affidavit and statement on oath physically smack of a hidden agenda. The 3rd Defendant is duty bound to produce the 1st Defendant even in this court as part of the guarantee he signed and he intentionally refused to do so before the police and even in this court the whereabouts of the 1st Defendant. In reply to paragraphs 24, 25, 26, 27 and 28 of the 3rd Defendant’s Statement of Defence, the liability of the 3^rd Defendant to the Claimant is unlimited which include among others loss and damages and is well captured in contract of guarantee.

THE CLAIMANT’S FINAL WRITTEN ADDRESS filed on 13^th March, 2023.

ISSUE

Whether or not the Claimant has proved its case to be entitled to the judgment of this court.

31. Learned Counsel citing the case of FIRST BANK OF NIGERIA PLC Vs. EXCEL PLASTIC INDUSTRY LIMITED (2002) LPELR-10280(CA), per EDOZIE, J.C.A. (P. 32, Paras. B-F) submitted that it has proved its case on the scale of probability and thus entitled to the judgment of the court in this case.

32.With respect to the standard of proof required in civil matter statutorily, Counsel submitted that Section 134 of Evidence Act stated this to be on the scale of probability, relying on the case of INTERDRILL (NIG) LTD VS UBA (2017) ALL FWLR PT904 PG1177 @ PG1202 PARA-F-G.

Counsel argued that in relation to the following findings;

a. Also, not in disputed the Guarantorship/undertaking form now marked as EXHIBIT C5, of vital importance to note and not in dispute is the contract of employment now marked EXHIBIT C6.

b. Also, not in dispute is the outstanding in Sum of N5, 754,335.00 (Five Million, Seven Hundred and Fifty–Four Thousand, Three Hundred and Thirty-Five Naira Only) being the total value of Claimant’s goods the 1^st Defendant absconded with.

c. Also, not in dispute is the expenses incurred in prosecuting this since inception of case including solicitors’ fees -EXHIBIT C11 for this case and the case in Lagos (Fundamental Right which has been decided in favour of the Claimant) and damages suffered forming the part of the claims.

33.That they need no further prove as they have been proved by the avalanche of documentary evidence before the court none of which has been contradicted by any other evidence even at the cross-examination stage. Thus "It is trite that facts which are admitted need no further proof. Folksynthesis Ltd Vs. Gapuma (UK) Ltd (2017) 8 NWLR (part 1566) 150 at 153; Ifeanyi Chukwu Trading Investment Ventures Ltd Vs. Onyesom Community Bank (2015) 17 NWLR (part 1487) 1; Steel Bell (Nig.) Ltd Vs. N.D.I.C. (2015) 1 NWLR (part 1441) 570 at 577.Per HASSAN, J.C.A. (P. 27, Paras. D-F); OKAFOR Vs. TITILOPE & ORS (2018) LPELR-44385(CA).

34.Learned Counsel submitted that in determining whether or not the Defendant has a good defence, the judge is enjoined to consider the pleadings which invariably are embodied in the affidavit evidence and all the exhibits filed by the parties. PER C. E. IYIZOBA J.C.A in the case of NASCO TOWN PLC & ANOR v. MR. FESTUS UDE NWABUEZE (2014 Legalpedia CA O8YH) (suit number: CA/L/949/12; WEMA BANK PLC. & ANOR v. ALARAN FROZEN FOODS AGENCY NIGERIA LIMITED & ANOR (2015) LPELR-25980(CA).

35.Counsel posited that Black’s Law Dictionary, 5th Edition at page 634, defines guarantee as a collateral agreement for the performance of another's undertaking. An undertaking or promise that is collateral to the primary or principal obligation and that binds the guarantor to performance in the event of non-performance by the principal obligor. A promise to answer for the payment of debt or performance of an obligation of the person liable in the first instance fails to make the payment or perform the obligation... A promise to answer for the debt, default, or miscarriage of another person. This is cited in the case thus: Commercial Credit Corp. v. Chisholm Bros Farm Equipment Co. 96 Idaho 194525 p, 2d 976, 978; NWANKWO & ANOR V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A (2007) LPELR-2108(SC); KHALED BARAKAT CHAMI V. U.B.A. PLC (2010) LPELR-841(SC).

36.Counsel contended that there is no other document(s) or evidence to show that the contract document and or undertakings has been altered and amended and that mere assertion will not do. That the law with respect to written contract is that, parole evidence is inadmissible to contradict or vary the express provision in the written contract; and the failure of the Defendants to lead any evidence to the assertion is clearly aimed at dribbling the Claimant to getting justice in this case timeously and in deed buying time to frustrate the Claimant and to avoid meeting their obligations. FCMB PLC V. BENBOK LTD (2014) LPELR-23505(CA), per TUR, JCA (Pp. 42-45, paras. E-B).

37. Counsel citing the case of REGISTERED TRUSTEES OF IPMAN V. STERLING BANK (2022) LPELR-56845(CA) per A. B. MOHAMMEDJCA (Pp. 19-20, paras. B-E), submitted that the Defendants have failed to bring life to their case and thus failed in proving same.

38. It is Counsel’s submission that the 2^nd and 3^rd Defendants’ act of taking this route is aimed at dribbling the Claimant to avoid meeting their obligations, and that this court is obliged to at this stage help halt the Defendants’ antics. OKOLI V MORECAB FINANCE (NIGERIA) LTD, (2007) 14 NWLR (pt1053) page 37; MAGIT Vs. UNIV. OF AGRICULTURE, MAKURDI (2006) All FWLR (PT 298) 1313 at 1345 D – F, per Pats-Acholonu, JSC (of blessed memory).

39. Learned Counsel posited that the long settle canon of law is that a business letter must be replied to, failure of which an admission of the content therefore. That the 2^nd and 3^rd Defendants having received the demand letter (EXHIBITS C12 and C13) ought to refute same but they did not, and that the implication is that the content of same is correct. UBOAJA v AKINTOYE - SOWEMIMO [2008] 16 NWLR (PT.1113) 278 at 291 292 H-A.

ON RELIEF ONE

The Sum of N5, 754,335.00 (Five Million, Seven Hundred and Fifty–Four Thousand, Three Hundred and Thirty-Five Naira Only) being the total value of Claimant’s goods the 1^st Defendant absconded with and payment of same guaranteed by the 2^nd and 3^rd Defendants pursuant to pre-employment Guarantor undertaking signed on the 16^th and 17^th February, 2021.

40.Counsel argued that this relief is in the realm of special damages and the law that governs it is as stated in the in case of ANAZODO V. PAZMECK INTER TRADE, NIGERIA & ANOR (2007) LPELR- CA/E/31/2005, per BADA, J.C.A. (Pp. 20-21, Paras. E-A.

41.ON HOW TO PROVE SPECIAL DAMAGES, Counsel cited the cases of INTEL (NIG) LTD VS BASSEY (2013), ALL FWLR PT675 PG376 @ PG389-390 PARA-G-A; OCHUBA VS LAGOS STATE AGRICULTURAL DEVELOPMENT AUTHORITY (2018) LPELR-45828 CA; ADIM V N.B.C. LTD (2010) 9 NWLR PT1200 PG.543.

ON RELIEF THREE

The sum of N15, 000,000.00 (Fifteen Million Naira) only for punitive damages jointly and collectively against all the Defendants.

42.Counsel argued that this no doubt falls within the realm of general damages, it is what is proved that is awarded as special damages but where the damages are not subject to quantification in appropriate cases, general damages are awarded. AKINGBOLA V CHAIRMAN E.F.C.C (2012) ALL FWLR PT653 PG1899 @ PG1923 PARA-C; U.B.N PLC V CHIMAEZE (2014) ALLFWLR (PT734) PG48 @72, per ARIWOOLA, JSC.

ON RELIEF FOUR

N5 Million (Five Million Naira) only as cost of this action.

43.Counsel contended that the following appearances has far been made in this case namely: 13/10/2021, 2/11/2021, 8/12/2021, 3/02/2022, 08/03/2022, 14/03/2022, 26/7/2022, 24/10/2022, 2/7/20 20, 28/11/2022, 31/01/2023, 01/03/23, 2/3/23, 10/03/ 2023 all total 12 court appearances at the time of filling final written addresses. And that at each appearance, the Claimant served hearing notice on the 1^st Defendant and in some instances on all the Defendants and that the expenses incurred thereby were clearly avoidable had the Defendants carried out their own obligations. MEKWUNYE VS EMIRATES AIRLINES (2019) LPELR-46553, Per AKA’AHS J.S.C PG88 in PARA-D.

ON RELIEF FIVE

The Solicitors fees in the sum of N3Million (Three Million Naira) only.

44.It is Counsel’s submission that this leg of relief falls within the realm of special damages and the Claimant is entitled to same. FIJABI ADEBO HOLDINGS LTD Vs. NIGERIA BOTTLING CO. PLC (2017) ALL FWLR PT 882 PG1222 @ PG1254 PARA-G.

45.Counsel argued that in discharging this burden of proof, the Court is referred to paragraphs 25, 26 of both the statement of claim and witness statement on oath, Exhibit C10 and that the combination of these establishes the relief and thus entitled the Claimant to the same. INTEL (NIG.) LTD VS. BASSEY (2013) ALL FWLR PT. 675 376 @ PG. 390 PARA C-D, the court of appeal held thus: “A lawyer’s professional fee is not something to be proved by mere ipse dixit. Everybody knows that lawyers issue receipts for any money paid to them”. He argued that the Defendants have not been able under cross examination to discredit the Claimant on this point. NAUDE V SIMON (2014) ALL FWLR PT753 PG1878.

ON RELIEF SIX

30% (Thirty percent) interest of the judgment sum from the date of the judgment till the final liquidation.

46.Counsel submitted that the relevant rule is ORDER 47 (7) OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES 2017 which is consistent with the established principle of law on the award of interest as decided by plethora of authorities. UNITY BANK PLC VS DENCLAG LTD (2013) ALL FWLR PT675 PG206 @ 259 PARA- C-D.

2^ND DEFENDANT’S FINAL WRITTEN ADDRESS filed on 28^th April, 2023.

ISSUES

a) Whether the Claimant has proved its case against the 2^nd Defendant entitling it to judgment of the Court either jointly or severally.

b) Whether by virtue of the current state of the law, the 2^nd Defendant herein is not discharged from any liability under the Contract of Guarantee when it unilaterally varied the terms of the Contract of Employment (Principal Contract) between it and the 1^st Defendant.

c) Whether the loss of the Claimant would not have been limited to N 300,000.00 if it had exercised due care in its relationship with the 1^st Defendant.

d) Whether this case discloses any reasonable cause of action against the 2^nd Defendant.

ON ISSUE 1

Whether the Claimant has proved its case against the 2^nd Defendant entitling it to judgment of the Court either jointly or severally.

47. Counsel submitted that Sections 131 and 132 of the Evidence Act, 2011 provides that the burden of proof lies on who would fail if no evidence at all were given on either side.

Counsel submitted that the general principle of law is that parties are bound by their pleadings and it is also trite that facts admitted by a Party in his Pleadings are admissible against him without proof. AGBENEBO V U.B.N PLC (2000) 7 N WLR (PT. 666) 534 @ 549; EDOPOLO & CO LTD V OHENHEN (1994) 7 NWLR (Pt. 358) 511 at 519; ADUSEI AND ANOR V TOYIN ADEBAYO (2012) LPELR 744 SC; FBN PLC V NWADIALU [2016] 18 NWLR (Pt. 1543) 7.

48. Learned Counsel submitted that neither the parties to a contract can alter or read into a written contract a term which is not embodied in it…and that variation of contracts is analogous to entry of the Parties to a new contract. He argued that it involves a definite alteration of the contractual obligations by the mutual agreement of both parties and for variation to be valid, there must be a valid existing contract, consensus of all the parties and parties must have acted to the benefit of a party. UNITY BANK Vs. OLATUNJI (2015) NWLR (PT. 1452) 203 CA; IMOKA & ANOR V UNITED BANK FOR AFRICA PLC (2012) LPELR 19837 CA.

49. Counsel argued that by the evidence on record and the state of pleadings, the Plaintiff has established before this Court that it varied the Contract of Guarantee and terms of Employment, when it sold on credit to its customers through the 1^st Defendant without the knowledge of the 2^nd and 3^rd Defendant, thereby discharging the 2^nd and 3^rd Defendants of any liability under the contract of guarantee. IMOKA & ANOR V UNITED BANK FOR AFRICA PLC (2012) LPELER 19834(CA); AWOLESI V NBN (1962) 1 ALL NLR 172; JOHN HOLT LTD V OLADUNJOYE (1936)3 NLR 1.

ON ISSUE 2

50. Whether by virtue of the current state of the law, the 2^nd Defendant herein is not discharged from any liability under the Contract of Guarantee when it unilaterally varied the terms of the Contract of Employment (Principal Contract) between it and the 1^st Defendant.

51. Counsel urged the Court to hold that based on the current position of the law, the 2^nd Defendant is discharged from the Contract of Guarantee evidenced in the Pre-employment Contract Form, by the action of the Plaintiff and the 1^st Defendant when they varied the contract of employment with the 1^st Defendant. CHAMI v. UBA PLC (2010) LPELR-841(SC); 2010 6 NWLR (Pt. 1191) 474 @ 478.

Furthermore, that Black Law 7^th edition at page 711 Dictionary has defined Contract of Guarantee as an assurance that a contract or a legal act will be carried out.

Learned Counsel posited that Courts are duty bound to give the terms of contract freely entered into by parties, their plain, clear and obvious meaning. LEWIS V UBA (2016) 6NWLR 1508 329 SC; Gateway Holding Ltd Vs. Sterling Asset Management Ltd (2016) 9 NWLR PT (1518) 497.

52. It is Counsel’s submission that the law is that Parties are free to enter into contracts and are bound by the terms of the contracts’ they freely entered into and cannot act outside the terms and conditions contained in their contract. UNITY BANK V OLATUNJI (2015) NWLR (1452) 203 CA; JITTE V OKPOLOR (2016) 2 NWLR (PT. 1497) SC; IMOKA & ANOR V UBA PLC (2012) LPELR 19837 CA.

53. Counsel contended that the Plaintiff has by its pleadings confirmed that there is a no credit policy (paragraph 11-16), thus, he is bound by that pleadings and cannot vary the pleadings by conflicting oral evidence in order to escape liability. That the law is that if pleadings must have any useful effect, parties and court are bound by pleadings and on no account will a party be allowed to contend the contrary from what is contained in his pleadings. HASSAN V ISHAKU (2016) 10 NWLR (PT 1520) 230.

ON ISSUE 3

Whether the loss of the Claimant would not have been limited to N 300,000.00 if it had exercised due care in its relationship with the 1^st Defendant.

54. Counsel argued that the law is that Contributory negligence is a legal doctrine where an injured person is found partially responsible for their own injuries.

Furthermore, that the Claimant’s liability or loss suffered by the Claimant due to the non-remittance of the of goods by the 1^st Defendant could have been limited to just N 300,000.00 if the Claimant had exercised due care and did not release additional or second tranche of goods to the 1^st Defendant.

ON ISSUE 4

Whether this case discloses any reasonable cause of action against the 2^nd Defendant.

55. Learned Counsel submitted that cause of action is the fact or combination of fact that gives the Plaintiff a right to sue and this action contains two (2) elements which are (a) the wrongful act of the Defendant which gives the Claimant a right of complaint and (b) the consequent damage occasioned thereby. NISSAN NGERIA LIMITED V YOGANATHAN (2010) 4 NWLR (PT. 1183) PG 139; THOMAS Vs OLUFOSOYE (1986) 1 NWLR (PT. 18) 669; ADIMORA V AJUFO (1986) 3 NWLR (PT. 80). 1.

56. On the 2^nd May 2023 the Claimant duly adopted and adumbrated his final written address, the Court having evoked the provisions of Order 45 rule 7 in respect to the Defendants processes this matter was adjourned for judgement.

Court’s Decision

57. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues formulated by the all the parties to wit; -

1. Whether the Claimant has proved its case against the 2^nd Defendant entitling it to judgment of the Court either jointly or severally.

2. Whether by virtue of the current state of the law, the 2^nd Defendant herein is not discharged from any liability under the Contract of Guarantee when it unilaterally varied the terms of the Contract of Employment (Principal Contract) between it and the 1^st Defendant.

3. Whether the loss of the Claimant would not have been limited to N 300,000.00 if it had exercised due care in its relationship with the 1^st Defendant.

4. Whether this case discloses any reasonable cause of action against the 2^nd Defendant.

ISSUE 1

Whether the Claimant has proved its case against the 2^nd Defendant entitling it to judgment of the Court either jointly or severally.

58. It is trite that, as argued by the Claimant that parties are bound by their contracts. "It is, the general rule that where parties to an agreement have set out the terms thereof in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See: UBN LTD. v, SAX (NIG) LTD, (1994) 8 NWLR (Pt. 361) 150." Per Mshelia ,J.C.A in ARE V. OWOEYE (2014) LPELR-41096(CA) (Pp. 12-13 paras. F)

59. Furthermore parties are bound by their pleadings "The parties in a case and the court are bound by the issues submitted for trial and remain so bound from the court of trial to the final appellate court." ORUNENGIMO & ANOR V. EGEBE & ORS (2007) LPELR-2779(SC) Per Tabai ,J.S.C in (Pp. 16 paras. C-C).

60. The Claimant has established with Exhibit C5 the relationship between the Claimant and the 2^nd and 3^rd Defendants as being one of Guarantor “ship” and case law has this to say about a Guarantor.

"In the case of AUTO IMPORT EXPORT VS. ADEBAYO (2005) 19 NWLR (Pt. 959) 44 at 126 lines F - H Ogbuagu J.S.C. in his contribution to the judgment of the apex court had cause to resort to TRADE BANK PLC V. KAHLID BARAKAT CHAMI (2003) 13 NWLR (Pt. 836) 158 where the Court of Appeal defined who was a Guarantor and what a Guarantee means thus: "I will now deal with who is a guarantor and what a guarantee means. ... The Court of Appeal, stated/held at page 216 as follows: - "A guarantor is technically a debtor because where the principal debtor fails to pay a debt, the guarantor will be called upon to pay the loan so guaranteed. The guarantor can however, be absolved from liability if he can show that the principal debtor has paid the loan." Per AGUBE ,J.C.A in CROWN FLOUR MILLS LTD & ANOR V. OLOKUN (2007) LPELR-8534(CA) (PP. 50-51 PARAS. D)

61. "A guarantor is by law bound by his own contract. In Chami v. UBA Plc (2010) 6 NWLR (Pt. 1191) 474, the Supreme Court stated the position as follows:

"It is settled law that where a person personally guarantees the liability of a third party by entering into a contract of guarantee or suretyship, a distinct and separate contract from the principal debtor's is thereby created between the guarantor and the creditor. The contract of guarantee so created can be enforced against the guarantor directly or independently without the necessity of joining the principal debtor in the proceedings to enforce same - see Olujitan vs Oshatoba (1992) 5 NWLR (pt. 241) 326 at 329; Ekerebe vs Efeizorma II (1993) 7 NWLR (pt. 307) 588 at 601. In Chitty on Contract, 24th Ed. Vol. 2 paragraph 4831, the law is stated thus:- "... prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor." See also Moschi vs Lep Air Service Ltd (1973) AC 331 at 348; Esso Pet C. Ltd VS Alastonbridge Properties (1975) WLR 1474." Per ADAH ,J.C.A in ABU-AL-QASIM LTD & ANOR V. FBN (2021) LPELR-54538(CA) (PP. 21-22 PARAS. E-E)

62. "It is also worthy to note here that the fact that the obligations of the guarantor arises only when the principal debtor has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal debtor or from the guarantor or give notice to the guarantor before the creditor can proceed against the guarantor, nor does the creditor have to commence proceedings against the principal debtor unless there is an express term in the contract requiring him to do so. See C.B.N V INTERSTELLA COMM. LTD (2018) 7 NWLR (part 1618) 214. In NWOSU V ZENITH BANK PLC (Supra) it was inter alia held that a banker's guarantee shall effect payment on demand by the beneficiary giving a written statement that the principal has failed to perform his obligations. Such written statement will be the sole condition for the guarantor to pay under the guarantee. The guarantor will not take additional steps to determine any facts or documents relating to the underlying contract or the very appropriateness of the claim." Per SHUAIBU, J.C.A in REAGAN CEMENT COMPANY LTD FTZ V. UNITY BANK PLC (2021) LPELR-55699(CA) (PP. 33-34 PARAS). C).

63. Having established that the 2^nd Defendant was a guarantor to the 1^st defendant, the question of reasonable cause of action becomes unnecessary as the Claimant is entitled to bring a case against the 2^ndDefendant, a guarantor when the principal, in this case, the 1^st defendant, defaults. I resolve issue 4 against the 2^nd defendant.

See also UNREPORTED SUIT NO NICN LA/548 2019 DANGOTE OIL REFINERY CO. LTD.Vs. MOHAMMED AHMED AND 2 ORS Where this Court held Guarantor liable under a Guarantee Contract.

Reliefs 1 succeeds Relief 2 succeeds in part.

64. The Defendants raised issues as to the following; -

1. Whether by virtue of the current state of the law, the 2^nd Defendant herein is not discharged from any liability under the Contract of Guarantee when it unilaterally varied the terms of the Contract of Employment (Principal Contract) between it and the 1^st Defendant.

2. Whether the loss of the Claimant would not have been limited to N 300,000.00 if it had exercised due care in its relationship with the 1^st Defendant.

3. Whether this case discloses any reasonable cause of action against the 2^nd Defendant.

65. With regard to the 2^nd issue Whether by virtue of the current state of the law, the 2^nd Defendant herein is not discharged from any liability under the Contract of Guarantee when it unilaterally varied the terms of the Contract of Employment (Principal Contract) between it and the 1^st Defendant.

66. The Defendants have not proved to this Court that the Claimant had unilaterally varied the contract, even if this was to be a ground, especially as all the contentions of the Defendants with regards to credit sales go to know issue. The pattern if business of the Claimant is not in issue, that he supplied goods to the 1^st Defendant as per their contract does not amount to credit sales. I find and hold.

67. The position of the law is that the only situation that could discharge a Guarantor from liability is where, in this case the 1^st Defendant, the Principal, had paid the debt. This is not the situation on this case I find. See CROWN FLOUR MILLS LTD & ANOR V. OLOKUN (Supra). I resolve issue 2 against the Defendants.

68. With regard to Whether the loss of the Claimant would not have been limited to

N 300,000.00 if it had exercised due care in its relationship with the 1^st Defendant,

I find that it does not lie in the mouth of the Guarantor to post analyze the Claimants business model. The Defendants stood as guarantors for the 1st Defendant undertaking to make good any default made by the Principal. The Guarantor contract does not confer on the Guarantor the right or preserve to cast aspersions on how the Claimant ought to have conducted his business. the Guarantor has a singular role to execute which only arises when the Principal defaults such as in this situation and that role is to indemnify the Claimant for loss occasioned by the Principal, any other thing, such as raising question of bad faith pr negligence by the 2^nd and 3^rd Defendants are tantamount to an attempt to argue the appropriateness of the Claimant’s claim. I find and hold. See the case of REAGAN CEMENT COMPANY LTD FTZ V. UNITY BANK PLC Supra. I resolve issue 3 against the Defendants.

69. The Claimant in reliefs 3, 4, 5 and 6 are for joint punitive damages of N15, 000,000.00 (Fifteen Million Naira) only for punitive damages jointly and collectively against all the Defendants, Five Million N5, 000, 000 .00 as costs, solicitors fee of N3Million (Three Million Naira) only and 30% interest on the judgement sum.

70. Punitive Damages; - the position of the law with regard to punitive or exemplary damages is as was held in the case of WAEC V. HENRY (2015) LPELR-40995(CA) (Pp. 19-21 paras. E) "Exemplary damages are damages on an increased scale over and above special or actual or ordinary damages. It is awarded in aggravated circumstances and are punitive in nature. Exemplary damages which is also termed, punitive, vindictive, or aggravated damages, if claimed are usually awarded, whenever the Defendant's conduct is clearly outrageous to merit punishment, as where for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law or the like. See ELIOCHIN (NIG) LTD VS. MBADIWE (supra); ALLIED BANK OF NIGERIA LTD VS AKUBUEZE (1977) 6 SCNJ 116. G. K. F. INVESTMENT (NIG) LTD VS NITEL PLC. (2009) 15 NWLR (PT 164) 344. In SALAMI vs UNION BANK OF NIGERIA PLC (2010) LPELR (8975) CA. This Court per Lokulo-sodipe JCA held as follows at page 26:- "Aggravated damages is definitely a kind of damage that is in a class of its own. That is, It is different from special and/or general Damages as it has different principles governing its award. In this regard, see the case of ODIBA vs AZEGE (1998) 7 NWLR (PT 56) (1998) 7 SC (PT 1) 79, WHERE THE Supreme Court per Iguh JSC; dwelling on exemplary or aggravated damages said thus:-"it is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show that the Defendant has committed the wrongful act complained of his conduct must be high handed, outrageous, insolent, vindictive, oppressive on malicious and showing contempt of the plaintiff's right or disregarding every principle which actuates the conduct of civilized men." See also ONAGORUWA VS INSPECTOR GENERAL OF POLICE (1991) 2 NWLR (PT 1930) 593; See also the case of CHEVRON (NIG) LTD VS OMOREGHA where this Court relying on the Supreme Court case of ELIOCHIN VS MBADIWE (supra) held inter alia, that, in addition to moral compensatory damages, damages which go by various names to wit:- exemplary damages, punitive damages; even retributory damages can come into play whenever the Defendant's conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like." Per OSEJI ,J.C.A (Pp. 19-21 paras. E).

71. I have considered the entire pleadings and evidence led in the circumstances and I find it unassailable, that on the totality of the averments in the pleadings and evidence led, the Claimant who claimed punitive or exemplary damages failed woefully to show that the 1^st and 2^nd Defendants conduct was sufficiently outrageous or reckless to warrant an award of punitive and or exemplary damages. The entirety of the evidence led by the Claimant also failed to disclose any malice in the conduct of the1^st and 2^nd Defendants against the Claimant. I therefore, agree Claimant that failure to uphold their Guarantor’s Agreement and make good their undertaking though wrong and amounted to a breach of the contract of Guarantors relationship between the Defendants and the Claimant, and thus deserving of some form of damages, but it was not such a conduct as could be regarded as reckless or high handed and or of the magnitude to warrant the award of punitive and or exemplary damages against the1^st and 2^nd Defendants. See BAKER MARINE NIG LTD V. CHEVRON NIG LTD (2006) LPELR - 715 (SC) @ P. 13. See also GKF INVESTMENT NIGERIA LTD V. NIGERIA TELECOMMUNICATIONS LIMITED (2009) 13 NWLR (PT. 1164) 344 @ P. 377, ANTHONY ODIBA V. TULE AZEGE (1998) LPELR - 2215 (SC) @ P. 15, FIRST BANK OF NIGERIA PLC & ORS V. BONIFACE CHUKWU (2018) LPELR - 45148 (CA)all on punitive damages. Relief 3 therefore fails.

72. Cost and interest are the exclusive preserves of the Court, the Claimant has not shown the satisfaction of this Court how he arrived at N5, 000, 000.00 (Five Million Naira) costs of 30% post judgement interest. And for that the above stated reasons that these reliefs (Reliefs 3, 4, 5 and 6) all fail.

73. The Claimant is asking for a refund of legal fees to the tune of N3, 000, 000.00 (Three Million Naira). The position of the law is as was stated in the case of GUINNESS (NIG.) PLC V. NWOKE [2000] 12 NWLR (PT. 689) 135 AT 150 “that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party”. I hold that the case of GUINNESS (NIG.) PLC V. NWOKE [Supra] was frowning on something like this. The Claimant had frontloaded /tendered a Fee note indicating that the Claimant was charged N6, 600, 000.00 by his Counsel as payment for his legal representation. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. The Fee Note tendered in this case does not contain the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees falls short of the legal requirement. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. This Relief accordingly fails.

74. All in all the Claimant case succeeds but only thus far:-

1. By order of this Court the 2^nd and 3^rd Defendants being guarantors to the 1 Defendant in terms of pre-employment guarantor undertaking signed with the Claimant on the 16^th February 2021 and 17^th February 2021 respectively are to pay the Claimant applicant the total value of Claimant’s goods the 1^st Defendant absconded with.

2. The 2^nd and 3^rd Defendant shall pay to the Claimant the Sum of N5, 754,335.00 (Five Million, Seven Hundred and Fifty—Four Thousand, Three Hundred and Thirty-Five Naira Only) being the total value of Claimant’s goods the 1^st Defendant absconded with and payment of which the 2^nd and 3^rd Defendants guaranteed pursuant to pre-employment Guarantor undertaking signed on the 16^th and 17^th February 2021.

75. All sums payable with 30 days thereafter 10% interest shall attach.

76. This is the Court’s Judgment and is hereby entered accordingly.

………………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE COURT 3

ABUJA