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The Claimant initiated this suit by way of a Complaint dated and filed on the 22nd July, 2011 but with leave of court granted on 1st February, 2012, he amended his Complaint and Statement of Facts in which he claims the following reliefs: AGAINST THE 1st DEFENDANT: I. A DECLARATION that the Claimant is entitled to his salary and other entitlements from February 2011 till the expiration of the said contract or whenever the contract is validly terminated. II. The sum of N1,091,286.00 (One Million Ninety One Thousand Two Hundred and Eighty Six Naira) representing the Claimant’s salary from February 2011 to July 22, 2011 and thereafter the sum of 181, 881. 00 per shift till the expiration of the Claimant’s employment contract or whenever the said contract is validly terminated. III. The sum of N130,862.50 (One Hundred and Thirty Thousand Eight Hundred and Sixty Two Naira Fifty Kobo) representing the Claimant’s Acceleration Bonus from March 2011 to July 2011 and thereafter the sum of N26,172.50 (Twenty Six Thousand One Hundred and Seventy Two Naira Fifty Kobo) per month till the expiration of the said contract or whenever the said contract is validly terminated. IV. The sum of N4,500,000.00 (Four Million Five Hundred Thousand Naira) general damages for breach of the Claimant’s employment contract. AGAINST THE 2nd DEFENDANT: VI. A declaration that the suspension of the claimant and the further mandatory requirement that he should (a) write a letter of apology to the 2nd defendants’ management and (b) provide an undertaking signed by the 2nd defendant’s union against the express terms and conditions of his employment contract with the 1st Defendant is wrongful and constitutes an interference with the claimants employment contract and inducement of its breach by the 1st Defendant. VII. An award of the sum of N5,000,000.00 (Five Million Naira) general damages against the Defendant for wrongful interference and inducement of the breach of the claimant contract with the 1st defendant. VIII. An order mandating the 2nd defendant to provide the claimant with proof of remittance of taxes deducted from his salary on shift basis from November 2008 to December 2010 to the relevant Government authority. AGAINST THE 3rd DEFENDANT: IX. A DECLARATION that the setting up of the Disciplinary Panel of 8/2/2011 and the disciplinary actions taken against the Claimant contained in the Recommendations signed by the 3rd Defendant’s official on 9/2/2011 is unlawful interference with the Claimant’s employment contract and the inducement of its breach by the 1stdefendant. X. AN AWARD of the sum of N5,000,000.00 (Five Million Naira) general damages against the 3rd defendant for interfering with and inducing the breach of the Claimant’s contract with the 1st Defendant. The Defendants filed their respective Statements of Defence to which the Claimant responded with a reply to the said Statements of Defence. The case went to trial and after the close of case of each of the parties, their counsel filed and adopted their respective final written addresses. 1st Defendant’s Final Written Address The learned counsel for the 1st defendant formulated one issue for determination, namely, whether the Claimant has been able to prove a claim of an Unlawful Termination of his appointment against the 1st Defendant? ARGUMENTS Arguing the single issue, learned counsel for the 1st defendant submitted that the Claimant had not been able to prove his case against the 1st Defendant to enable him get judgment against same. As a result of his inability to so do, counsel urged the Court to dismiss this case against the 1st Defendant with an award of a heavy cost against the Claimant. He stated further that the Court of Appeal sitting in Ibadan Division in the case of AYORINDE VS OYO STATE GOVERNMENT & 2ORS (2007) All FWLR part 356 at page 709 particularly at page 711 ratio 3 stated clearly that an employee alleging a wrongful termination of employment by his employer has the onus of proving two important things thus: “Under normal circumstances an employee who complains of wrongful termination of employment by his employer has the onus of proving the wrongful termination of the said employment by: a. Placing before the court the terms and conditions of the contract of employment and b. Proving in what manner the said terms were breached by the employer. Terms and Conditions of service are thus the bedrock of any case where the issue of wrongful termination calls for determination.” Learned counsel submitted that the Claim of the Claimant will fail and must fail on the following reasons: Counsel stated that it is not in issue that the Claimant was an employee of the 1st Defendant who absconded from his work without a notice to his employer for so doing. He referred to paragraph 5(d) of the 1stDefendant’s Witness Statement on Oath. That the Claimant’s Claim in paragraph 7 was that on the 8th day of January, 2011 when he went to Osubi Airport to be airlifted to Escravos to resume work he met at the airport two days spill (backlog) of Workers who could not be airlifted to the 1st Defendant’s Project Site at Escravos. This also was as a result of unforeseen circumstances beyond the control of the 3rd Defendant charged with the responsibility of airlifting workers to their various workplaces. Furthermore, the Claimant also stated in paragraph 8 of the Statement of Facts that he waited till evening at the Airport when the 3rd Defendant’s Official announced to all of them that they cannot be airlifted that day, nevertheless, were directed by the said 3rd Defendant’s Official that all affected workers put down their names and their Identity Card Numbers, go back home, and then return the next Monday, 10th January, 2011. Consequently, on the said day the affected workers were airlifted to their various locations at site in Escravos. That the Story of the Claimant did not end in their airlifting exercise, but narrated further that there arose a misunderstanding between himself and the other affected workers with the staffs of the 2nd and 3rd Defendants over the payment of spill on arrival at the worksite. That unambiguously, the Claimant in paragraph 8 of his Statement of Facts agrees that the issue of payment of spill of workers is the responsibility of the 2nd Defendant on the instruction of the 3rdDefendant. In other words the 1stDefendant has nothing to do with the issue of spill, airlifting and payment of spill workers. He concluded that he was paid alongside other co-workers affected, but were invited by the 3rd Defendant’s Officials to face a disciplinary panel for inciting other workers against the 2nd and 3rd Defendants resulting from the payment of spill. The Claimant further in his evidence stated that he did attend the disciplinary panel set up to investigate his attitude and conduct, wherein at the end the panel suspended him for 4 weeks (28days). That throughout this ordeal, the Claimant concluded in paragraph 14 of his Statement of Facts that no Official of the 1st Defendant, his own employer, was part of the Disciplinary Panel and that he too - the Claimant did not deemit fit to notify his employer of all that he (had) gone through. By and large, according to counsel, the offence which can be drawn from the Claimant’s Statement of Facts against the 1st Defendant is that he did not deem it fit to question the composition and the verdict of the 3rd Defendant’s Disciplinary panel which he, the Claimant, willingly submitted himself to, moreso, that the suspension notice, Exhibit ‘D’, was shown to the Claimant by the Official of the 1st Defendant. That the 1st Defendant’s reply to all the averments of the Claimant’s evidence as concerns it, is that “the 1st Defendant” was not aware of all that “its” employee had gone through as “it” was not notified by the Claimant. The 1st Defendant concluded in paragraph 5a, b, c, d, denying his awareness of the Disciplinary Panel, Payment of Spill and the Spill Saga. They therefore, on this note took the Claimant their employee as a worker who disappeared from the worksite. Counsel referred particularly to paragraph 5d. In cross-examination of the Claimant by the 1st Defendant, the Claimant agrees that the 1st Defendant was not aware of the Disciplinary Panel and he too, the Claimant, an employee of same, did not notify his employer, the 1st Defendant, of the issue of spill, disciplinary panel and in fact the ordeal and or struggle between himself and the 2nd and 3rd Defendants. He also agreed that the responsibility of airlifting workers to Escravos lies with the 3rd Defendant and not the 1st Defendant. Counsel referred to paragraphs 7, 9, 10, 11, 12, 13 and 14 respectively. To further buttress this point, counsel for the 1st Defendant continued, paragraph 14 of the Claimant’s Statement of Facts itself exonerated the 1st Defendant of the Claimant’s Claim against it and allegation of same. For point of emphasis and clarity, counsel restated this paragraph again as follows: Paragraph 14: “The Claimant states that no official of the 1st Defendant, his employer, was part of the Disciplinary Panel and that the 1st Defendant did not deem it fit to question the composition of the Disciplinary Panel, its proceedings and verdict.” From this Statement of Facts of the Claimant above, the question that follows therefore is was the 1st Defendant aware of any Disciplinary Action against any of his workers, was he notify(sic) by any of his workers or by any other person, or did he receive any memo of the Disciplinary Action from the 2nd and 3rd Defendants? None of this question(sic) raised has been answered by the Claimant, instead his respond(sic) to these questions were that the 1st Defendant was not aware and he too the Claimant did not notify the 1st Defendant his employer at any stage of the problem beginning from spill to the panel. What then is left? The fact that the 1st Defendant was not notify(sic) of the problem by the Claimant himself, between him, 2nd and 3rd Defendants, from spill to the Disciplinary Panel to investigation, even his workers which include the Claimant, is enough for court to hold that the 1st Defendant has no knowledge of the Panel and in fact the whole exercise between the Claimant and the 2nd and 3rd Defendants. Counsel referred again to the cross-examination of the Claimant by the 1st Defendant. The 1st Defendant in his defence denied all the allegations of the Claimant as concerns it. In paragraphs 5a, b, c, d, e, f, g, h and i, the 1st Defendant did state that he has no knowledge of the spill, payment of the spill, investigation panel and the verdict resulting there from. He further stated that, it is not the responsibility of the 1st Defendant to airlift workers and or make payments for affected spill workers. The evidence of the 1st Defendant’s witness also was not different from his defence. The 1st Defendant only had the knowledge of the trouble between the Claimant and the 2nd& 3rd Defendants when he received a panel recommendation notice forwarded to their email box. It would not have been proper for the 1st Defendant to receive such information with surprise and hide or conceal it without bringing it to the notice of his worker. Learned counsel submitted, therefore, that the act of the 1st Defendant showing (Notice of Panel Report) Exhibit ‘D’ to his worker what was received by them concerning the Claimant, their employee, was not out of place and also did not amount to having knowledge of what was happening between the Claimant and the 2nd and 3rd Defendants. Furthermore, counsel stated that the 1st Defendant’s letter of reply dated 12th day of July, 2011 which in this case is also referred to as Exhibit ‘U’ is very instructive at this point, as it can be seen by the tone of the wordings of the letter that the 1st Defendant did not in any way terminate the appointment of the Claimant, but only absconded from his duty post until the 1st Defendant received a letter from his solicitor, referring the court to Exhibit ‘U’. In the same Exhibit ‘U’ it was also stated clearly in the reply that the Claimant’s Employment Contract was not terminated despite his act of gross misconduct. His reason (for) not resuming work after the receipt of this letter of reply by the 1st Defendant was best known to him. The question that follows is who booked out the Claimant from the worksite, who did he tell before he left and how did he leave the worksite without permission from his employer to attend a disciplinary panel that did not include his employer? Again, at his arrival after the disciplinary panel did he care to tell his employer where he went? On the answer to all of these, learned 1st Defendant’s counsel referred the Court to the cross-examination of the Claimant by the 1st Defendant. That on the authority of the above case cited, AYORINDE VS OYO STATE GOVERNMENT, (SUPRA), it is not enough to only place before this court terms and conditions of the contract of employment but the most important of it is “proving in what manner the said terms were breached by the employer”. The onus of proving such wrongful termination lies on the Claimant. That judging from the attitude and conduct of the Claimant, it will not be out of place to say that the Claimant did not in any way regard its employer flowing from his conduct throughout the period of the problem between him and 2nd and 3rd Defendants and even afterwards. In Claimant’s cross-examination by the 1st Defendant, there was nowhere the Claimant told this Court that the 1st Defendant was notified either orally or in writing of the problem of spill up till panel. Counsel referred to the Claimant’s cross-examination by the 1st Defendant, his failure to notify or bring to the knowledge of the 1st Defendant, his employer, has shown no regard at all for his employer. There is no way equity can aid him in this direction as “HE WHO SEEKS EQUITY, MUST DO EQUITY”. Equity cannot aid him as he has so many things left undone for equity to assist him for his failure to bring the whole thing to knowledge of his employer. Furthermore, counsel for the 1st Defendant continued, it cannot be said that the act of the 3rd Defendant interfering with the Claimant’s Employment Contract is an inducement for breach by the 1st Defendant. That the 1st Defendant did not terminate the appointment of the Claimant and the issue of inducement can never arise. Learned counsel stated further that from the totality of pleadings and evidence led in this case by all parties, the following facts can be said to be established and the same facts have not been controverted by parties and their witnesses: a) The Claimant did not notify 1st Defendant of all that he passes through between him, 2nd and 3rd Defendants from the period of spill up till the panel. b) The 1st Defendant never participated in the Investigating Panel and its verdict against the 1st Defendant. c) The 1st Defendant did not give the Claimant a Letter of Termination of his Contract Appointment nor reacted separately to the notice of panel report Exhibit ‘D’ received through email from the 3rd Defendant. d) The 1st Defendant did not book out the Claimant outside the worksite for any appointment. e) The Claimant left the worksite without the notice of the 1st Defendant, his employer. That flowing from the above, the Claimant haven’t fail(sic) to satisfy the condition for wrongful termination of his contract of employment against the 1st Defendant, he is therefore not entitle(sic) to any claim against same, the evidence of the Claimant against the 1st Defendant is speculative and scanty. That his evidence has revealed so, even the cross-examination by 1st Defendant also revealed so. Counsel then referred to the cross-examination of the Claimant by the 1st Defendant. He also referred to the case of NFOR VS. ASHAKA CEMENT CO. LIMITED (1994) 1NWLR PT 319 PAGE 225 RATIO 7 where, according to counsel, the court held thatit is a settled principle of law that damages must not be awarded on speculative claim and scanty evidence. CONCLUSION In conclusion learned 1st defendant’s counsel submitted that the Claimant haven’t failed to prove his case against the 1st Defendant is not entitled to any damages and claim whatsoever against it, and he therefore urged the Court to dismiss the case against the 1st Defendant on the ground considered above. The 2nd Defendant formulated the following issues for the determination of the court: (a) Whether the claimant has established by way of evidence that the 1st defendant breached his contract of employment or has failed to perform or discharge a contractual obligation? (b) Whether the claimant has established by way of evidence that the 2nd defendant interfered with the claimant’s employment contract so as to induce its breach? (c) Whether the claimant is entitled to the damages claimed? ARGUMENT ON 1st ISSUE It is the 2nd defendant’s submission that for the claimant to succeed in his claim for unlawful interference amounting to the inducement of breach of his contract of employment, he must first prove by way of evidence that the 1stdefendant with whom he executed his contract of employment has breached same or has failed to perform a contractual obligation. The 2nd Defendant’s counsel submitted that Claimant has blatantly failed to do this. That for the tort of interference amounting to a breach of contract to be said to be committed, it must be shown that the act of the 3rd party complained against has directly or indirectly made a contractual party to break his contractual obligation, referring to CHAPTER 18 of WINFIELD & JOLOWICZ on Tort 15TH EDITION BY W.V.H ROGERS, LONDON, SWEET & MAXWELL LTD 1998. Furthermore, the Claimant must show that his contract has been breached or that the defendant has failed to carry out a contractual obligation and this point was emphasized in the case of NISSAN (NIG) LTI) V. YOGANATHAN (2010) 4 NWLR (Pt. 1183)135 at Page 153-154 Paras I — A where the court held as follows: “Where the 3rd party knowingly and without justification facilitated or intentionally induced the breach of the contract between contracting parties, he is liable of inducing or procuring breach of contract (emphasis are counsel's)”. That from the foregoing, it is clear that the claimant must establish that there has been a breach of contract by a contracting party, in this case, the 1st defendant. Counsel then submitted that the claimant has woefully failed to do this. That the major complaint of the claimant was that a panel was set up at the 3rddefendant's premises and “made up of MR. DICKSON AJOBOR EYENMIENBAI AND MR. CHRIS NEVO,both employees/representatives or persons authorized to act on behalf of the 3rd Defendant” (quoting from paragraph 12 of Claimants’ Statement on Oath). That from the claimant’s evidence before the court, the 1stdefendant has nothing whatsoever to do with the setting up, membership or recommendation of the panel. There is also no evidence from the claimant to show that he involved his employers, the 1stdefendant in the issue of agitation for spill over allowance. Infact, under Cross-examination, by counsel for the 1st defendant, the claimant stated expressly that he neither informed the 1st defendant about his invitation to face a panel, nor did he inform the 1st Defendant about the decision of the panel. The only logical inference therefore was that the 1st defendant was never informed by the claimant of whatever challenges he was going through and was therefore not aware. Also under Cross-examination by the 2nd defendant, the claimant admitted that there was no communication whether written or oral suspending him or terminating his employment. On what evidence therefore can the claimant’s allegation of the 1st defendant’s breach of his contract of employment succeed? Counsel answered that there is none. Counsel continued that what transpired at the worksite at Escravos as a result of the flight spillover of the 8thof January 2011 was totally outside the contract of employment of the claimant and had totally nothing to do with it.The claimant had not established by way of evidence that spillover allowance was a contractual right, neither was his agitation for payment of spillover allowance contractual as he never involved the 1st defendant his employer in it. The claimant’s writing or taking part in the authoring of Exhibit “C” is also not contractual. As there is no evidence that he was acting under the instructions of his employer the 1st defendant. The claimant’s defence that he was acting under the instruction of one Mr. M. S. Kim staff of the 2nd defendant, is of no moment as by his own showing, he has no contractual ties with the 2nd defendant to allow him to act on such instructions. That it is even in evidence that the 1st defendant has nothing to do with the claimant leaving the work site at Escravos to face the disciplinary panel at the 3rd defendant’s premises. [Counsel referred to Paragraph 12 of claimant’s Statement on oath where the claimant clearly failed to say who booked him out to face the disciplinary panel at the 3rd defendant’s office at Warri. Certainly not the 1st defendant whom he never informed of his invitation to face the panel].The 1st defendant correctly to the true factual situation when her witness through paragraph 5(1) of his statement on oath said that the claimant abandoned his place of work and disappeared. This fact was reiterated by the 1st defendant in Exhibit “U” which was the first opportunity presented by the claimant to the 1st defendant to join issues with her on the issue of payment of remuneration. From the totality of evidence before the Court therefore, counsel stated that it is clear that the claimant has failed to discharge the burden placed on him to show by way of credible evidence that the 1st defendant breached his contract of employment or that she has unlawfully failed to discharge a contractual obligation placed on her. ARGUMENT (2ND ISSUE) Arguing the 2nd issue, learned 2nd Defendant’s Counsel stated that if the 1stissue for determination posed by the defendant is resolved in favour of the 1st defendant to wit:- that the 1st defendant did not breach the claimant’s contract of employment, then this 2nd issue for determination will become academic because if there has been no breach, there can be no inducement or a breach. However,that assuming without conceding that the Honourable Court holds that the 1st defendant indeed breached the claimant’s contract of employment, counsel submitted that the claimant has failed to show by way of credible evidence that the 2nd defendant interfered with the claimant’s employment contract, so as to induce its breach.That for the claimant to succeed in his claim for unlawful interference leading to induced breach of contract, he must establish the following: (a) That the 2nd defendant used unlawful means with the aim and effect of causing damage to the claimant. See the case of SPARKLING V. UBN NIG LTD (2001) 34WRN 1 where the Supreme Court per Ogundare JSC at Page 17 held that: “the tort of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another.” From the totality of evidence before the court, there is nothing to show that the 2nd defendant induced or used unlawful means to induce the breach of contract and cause damage to the claimant.It is clear from evidence before the court, that it was Exhibit “C” that gave rise to the disciplinary panel. That Exhibit “C” is an unlawful act against the 2nd defendant who clearly had no control over issue of payment or non-payment of spillover allowance and not the other way round. The 3rd defendant vide her witness statement on oath, particularly Paragraph 4 of same makes it clear that the payment or non-payment of spill allowance is totally the sole responsibility of the 3rddefendant. Exhibit “C” and the claimant’s participation in the writing of same was therefore completely unnecessary, not within the ambit of his contract and was done in total bad faith. There is also no evidence to show that the disciplinary panel was constituted at the instance of the 2nd defendant. The claimant never showed that it was the 2nd defendant that extended the invitation to attend the disciplinary panel to him. [See Paragraph 12 of the claimant’s statement on oath]. That there is ample evidence before the court that the 2nd defendant is not the one that does the airlift of workers, she could therefore not have been the person who moved the claimant to Warri for the panel sitting, neither was the panel sitting at the premises of the 2nd defendant. In fact the claimant clearly stated in Paragraph 12 of his statement on oath as follows: “……..on arrival at the 3rd defendants’ office on February 8, 2011, I was summoned to appear before the disciplinary panel made up of Mr. Dickson AjoborEyenmienbai and Mr. Chris Nevoboth employees/representatives or persons authorized to act on behalf or 3rd defendant”. In light of the piece of evidence reproduced above how can the claimant maintain that the outcome/recommendation of such a panel amount to an inducement by the 2nd defendant of her contract by employment? Counsel asked.Learned counsel then submitted that the claimant's claim of inducement against her must fail based on the evidence proffered by the claimant. The claimant’s attempt to interpret Exhibit D to mean a notice of suspension to the claimant to amount to inducement of a breach must fail in the light of the contents of the said document. The said document is just an e-mail print out of a mere notification of the disciplinary panel’s report to the 2nd defendant. It never showed the defendant as the originator or the maker of the recommendation contained therein. That there is no way Exhibit D can be interpreted to be an unlawful means through which the 2nd defendant induced the breach of the claimant’s contract with the effect of causing damage. That Exhibit “D” neither added nor removed from the recommendation of the panel dated the 9th day of February 2011 (Exhibit N). Counsel stated further that there is also no evidence before the Honourable Court to show that Exhibit “D” actually influenced the actions of the 1stdefendant to occasion a breach of the claimant’s contract as there is no evidence before the Honourable Court of any action taken by the 1stdefendant subsequent to the receipt of Exhibit “D”. The 1st defendant neither gave the claimant a letter of suspension nor that of termination. The principle of law is that the business of a court of law is not discharged or conducted by resort to speculation employed to fill in whatever lacuna there may be in the evidence of a party. See the case of RIVERS VEGETABLE OIL COMPANY LTD VS. EGUKOLE (Cited Supra) page 130 Para E-F (especially at page 116 ratio 7). (b) For the claimant to succeed against the 2nd defendant in a claim for contractual interference and induced breach of contract, he must also prove that the defendant knowingly and without justification facilitated or intentionally induced the breach of his contract.See the case of NISSAN (NIG) LTD VS. YOGANATHAN (2010) 4NWLR (PT 1183) 135 at pages 153 — 154 Para H-A where the court held that the act amounting to inducement must be one without justification. That in the instant case there is no evidence of any unjustified act by the 2nd defendant that can be said to have induced the purported breach of the claimant’s contract by the 1st defendant. From the evidence before the court, the only act taken by the 2nd defendant is to notify the 1st defendant, the outcome of the disciplinary panel vide Exhibit “D”. Counsel submitted that Exhibit D cannot be said to be unjustified in light of the accusations contained in Exhibit “C”, that the 2nd defendant is deliberately refusing to pay, spillover allowance, that she actually has no authority to pay save with approval of the 3rd defendant. Such accusation coming from the employee of a sub-contractor to the 2nd defendant is enough justification for the simple notification of the subcontractor (the 1st defendant) of the outcome of disciplinary panel set up by the 3rd defendant. In any case, Exhibit “D” never induced a breach of contract because there is no evidence before the court that Exhibit “D” led the 1st defendant to take any action in breach of the contract or stopped the 1st defendant from performing any of his contractual obligations. If for any reason, the court holds that the 1st defendant breached the contract by failing to pay claimants’ salary, such failure cannot be imputed to Exhibit D which is a mere notification of the panel report/recommendation that is contained in Exhibit N. That finally on this issue, counsel for the 2nd defendant submitted that the claimant has failed to show by way of credible evidence that the 2nd defendant interfered with the claimants’ employment contract so as to induce its breach. AGREEMENT (3RD ISSUE) On the 3rd issue for determination formulated by the 2nd defendant, counsel submitted that the claimant having failed to establish by way of credible evidence that there has been a breach of his contract of employment and that breach was unlawfully, Intentionally, unjustifiably and with the Intention of Causing damage to the claimant induced by the 2nd defendant, the claimant is not entitled to the general damages claimant made against her. That in a concurring judgment by MUKTHAR J.C.A in the case of NISSAN (NIG) LTD V. YOGANATHAN (Supra) at page 158 Para B-C, the Honourable Justice of the Court of Appeal held that “…….It is pertinent that the alleged deliberate violation of contractual term by the two respondents occasioned an actionable wrong, if proved or undeniedand the liability for consequential damage suffered thereby is, of course foul!” (‘emphasis learned counsel’s). That from the forgoing it is clear that inducement of the breach of contract must be specially proved when denied for damages to flow therefrom. In the instant case, the 2nd defendant specifically denied that she induced the breach of the claimant’s contract vide Paragraph 15 of statement of defence and Paragraph 15 of the 2nd defendant’s witness deposition on Oath (statement on Oath of Mr. Dickson AjoborEyemnienbai): Despite these strong denials, the claimant never made any effort to show how the action of the 2nd defendant specifically induced the breach of the claimant’s contract. The general principle of law is that the claimant must rely on the strength of his case and not that of the defendant, referring tothe case of BABALOLA Vs RUFUS (2010) ALL F.W.L.R PART 515 page 309 at 339-340 PARA H-A (especially at page 316 ratio 10). That finally on this issue the 2nd Defendant urged the Court to dismiss the claimant’s claim for general damages as he has failed to prove his entitlement to same having failed to prove that the 2nddefendant indeed induced the breach of his employment contract. In conclusion counsel urged the Honourable Court to decline and/or refuse relief’s I, II and III of the claimant against the 2nd defendant in this suit on the grounds considered above and to dismiss the suit with cost in favour of the 2nd defendant. 3RD DEFENDANT’S FINAL WRITTEN ADDRESS The 3rd Defendant formulated three issues for determination which are as follows: 1. WHETHER THE CLAIMANT CAN MAINTAIN AN ACTION IN TORT (UNLAWFUL INTERFERENCE AND INDUCEMENT OF BREACH OF CONTRACT) AGAINST THE 3RD DEFENDANT. 2. WHETHER THE SETTING UP OF THE DISCIPLINARY PANEL BY THE 3RDDEFENDANT AMOUNTS TO AN UNLAWFUL INTERFERENCE AND INDUCEMENT OF BREACH OF THE CLAIMANT’S CONTRACT OF EMPLOYMENT WITH THE 1ST DEFENDANT. 3. WHETHER THE 3RDDEFENDANT IS LIABLE IN DAMAGES TO THE CLAIMANT FOR INTERFERENCE AND BREACH AND/OR THE COST OF THIS ACTION. ISSUE NO.1 Arguing the first issue learned 3rd defendant’s counsel stated that the Claimant commenced this action on the premise of a tortuous liability against the 3rd Defendant. This is the tort of unlawful interference and inducement of breach of the Claimant employment contract with the 1stDefendant. The question then is can this action be maintained in tort by the Claimant against the 3rd Defendant?According to counsel, it is trite that from the factual situation, a cause of action may overlap between contractual liability and tortuous liability, however, he submitted strongly that tort of unlawful interference and inducement of breach of contract does not lie against the 3rdDefendant in this case. Counsel then examined the relationship between the Defendants as placed before this Honorable Court by their pleadings and evidence. The 1st Defendant is one of the contractors of the Defendant at the EGTL project site in Escravos owned by the 3rd Defendant. The 2nd Defendant is one of the several sub-contractors of the 3rd Defendant. The claimant pleaded and led evidence to the fact that he was initially engaged by the 2ndDefendant but was later transferred to the 1st Defendant by the 2nd Defendant. On both employments, he was deployed to work as an electrician at the site of the 3rd Defendant in Escravos as a junior staff. The contract of employment executed by the Claimant with the 1st Defendant (Exhibit A) incorporated by reference several other Agreements. The said Exhibit A referring to Exhibit B states: ‘That this Agreement incorporate all the terms and Conditions of service as provided in the EGTL Project Labour Agreement (PLA) 2010... and the EGTL Project Site Rules’. To counsel a curious perusal of Exhibit B which is the PLA incorporated into the Contract of Employment and engagement of the Claimant at page 3 under the Preamble shows that the PLA is a Collective Agreement between the 3rdDefendant and the National Union of Civil Engineering, Construction, Furniture and Wood Workers (NUCECFWW) in the representative capacity of all junior Employees working on the EGTL project at ESCRAVOS. The Claimant as a junior employee is therefore bound by the said Collective Agreement — the PLA. This aside the EGTL site rules, regulations and policies is an agreement directly made with the 3rd Defendant. Counsel then submitted that generally a contract cannot be enforced by a person who is not a party to it, even if the contract is made for his benefit and purports to give him the right to sue upon it. This general principle of contract makes collective agreements not actionable but this principle is with exception. Where the main service or employment agreement of a particular employee adopted the contents of the collective agreement as forming part of the employee’s terms of employment, the said agreement becomes enforceable. The said adoption of it is expressly stated automatically supplants or at worst supplement the main contract of service. Learned counsel relied on the case of UBN LTD. V. EDET 1993 4 NWLR Pt. 287 Pg. 288 @ 298 para B-C. Continuing, counsel stated that the 3rd Defendant pleaded and led evidence on oath which is uncontroverted by the Claimant in paragraphs 15 and 16 of the statement of defence that ‘all workers, officers and staff working at the EGTL project site are subject to the overriding Project Labor Agreement 2010...’. This is to the effect that the PLA supersedes the Claimant’s contract of service or in the very least compliments same. Basically, it is the service agreement and in this case employment agreement of the Claimant that regulates the relationship between the Claimant and his employer — the 1st Defendant. However, the said Exhibit A incorporated or embodied and adopted not just the EGTL PLA but all Federal and State Laws as applicable and EGTL Project Site Rules. The said Collective Agreement which now has statutory recognition under the provision of S. 91 of the Labour Act Cap. L1, LFN 2004, is more than a gentlemen’s agreement or an extra legal document devoid of sanctions and counsel referred toUBN V. CHINYERE 2010 10 NWLR Pt. 1203 Pg. 453 46469 para E-F. The employment agreement of the Claimant (Exhibit A) expressly adopted and made some other rules and agreement as a major term of the Claimant’s condition of service. The closing paragraph before the Claimant executed Exhibit A clearly stated that ‘That the employee accepts the above terms and conditions of employment including the provisions of the PLA 2010.’The PLA and the Federal Act which gave recognition to same are incorporated in Exhibit A. By both pleadings and evidence placed before the Court, parties conceded and the Claimant himself admitted that the PLA governs his terms of employment with the 1st Defendant. This Honorable Court, counsel submitted, must come to that irresistible conclusion that the EGTL PLA and the EGTL Project Site Rules governed the employment of the Claimant and is binding on his individual contract with the 1st Defendant. Counsel then referred to the case of GBEDU V. ITIE 2010 10 NWLR Pt. 1202 Pg. 227 @ 283 para A-B. He stated that he had earlier submitted that the parties to the EGTL PLA — Exhibit B are the 3rd Defendant and the Claimant’s NUCECFWW in the representative capacity of all junior Employees working on the EGTL. This makes the NUCECFWW an agent of a disclosed principal i.e the Claimant. The said capacity in which the agreement was made by the NUCECFWW was clearly stated in Exhibit B. The question then is on the strength of this contractual relationship between the 3rd Defendant and the Claimant, can the 3rd Defendant be said to have unlawfully interfered or induced the breach of contract?Counsel then answered this question in the negative and urged the Court to so hold. He submitted further that 3rdDefendant is not a strange bed fellow to the contract of employment of the Claimant. The said contract expressly incorporated and adopted another contract between the 3rd Defendant and the Claimant, this fundamental agreement binding on the parties must be read together as the complete employment contract of the Claimant. It is trite that the Courts do not formulate terms of contract for the parties but the Court will always enforce the clear terms of a contract freely and willing entered to by parties. In this case and from the facts placed before the Court, the Claimant can be said to have a contractual relationship separately and distinctively with the 1st and 3rd Defendants. Counsel then invited the Court to peruse Exhibits I and J which were the two identity cards of the Claimant issued by both the 1stand 3rd defendants respectively. Learned counsel further argued that it is premised on this position that he submits that an action in tort of unlawful interference and induced breach of contract cannot lie against the 3rd Defendant. It is well grounded, that for there to be a tort of unlawful interference and induced breach of contract there must be a ‘third party’. It is the employment contract of the Claimant that expressly and unequivocally adopted and incorporated the agreement between the Claimant and the 3rd Defendant. The 3rd Defendant is therefore not a third party and cannot be said to have unlawfully interfered in its own affairs or induced itself to breach the contract with the Claimant. He therefore submitted that the tortuous liability of unlawful interference and inducement of breach of contract of employment of the Claimant is not actionable against the Defendant. That lastly, part of the monetary entitlement pleaded by the Claimant in paragraph 23 of the Amended Statement of Facts is an entitlement contained under the EGTL PLA Exhibit B. Counsel then stated that the Supreme Court in the case of AWOJUGBABE LIGHT INDUSTRIES LTD V. CHINUKWE (1995) 4 NWLR (pt. 390) p. 379 at 426, His lordship, Onu JSC, aligned himself with the decision of the Court in ADEDEJI V. NATIONAL BANK OF NIGERIA LTD & ANOR (1989) 1 NWLR (Pt. 96) 212 to the effect that: “Apart from the principle of law involved in this case, it is morally despicable for a person who has benefitted from an agreement to turn around and say that the agreement is not binding or actionable.” Counsel submitted that at best the Claimant’s action against the 3rddefendant can only be rooted in contract in the face of the EGTL PLA and that on this ground the claim of the Claimant against the 3rd Defendant must collapse like pack of cards. ISSUE TWO On the second issue, learned 3rd defendant’s counsel stated that the 3rd Defendant led evidence premised on his pleadings before the Court on the fact that payment of spillover allowance though not contractual was a reimbursable expense subject to the sole discretion and approval of the Management of the 3rd Defendant and not the right of any worker. The Defendant also showed that the issue of the non-payment of the spillover for the 7th, 8th and 9th of January 2011 was already before the NUCECFWW and that the approval for payment usually takes some time for the verification of the names submitted by various subcontractors. Over 90 employees of various subcontractors were involved in the said spillover.The Senior Management Staff of the 3rd Defendant at the EGTL project site received and were copied with the letter dated 27th January 2011 titled ‘DAE WOO AT IT AGAIN INJUSTICE MELTED ON WORKERS’. This letter and the issue raised therein (aside the agitation it generated) was a direct invitation to the 3rd Defendant to use its good office to resolve the issues. It was co-masterminded and signed by the Claimant, the principle of equity is ‘volenti non fit injuria’ to the effect that there is no injury to one who consents. The Claimant expressly invited the 3rd Defendant to look into the matter and is therefore estopped from complaining that the said disciplinary panel set up by the 3rd Defendant was an unlawful breach and an interference with his contract of employment. Furthermore, the 3rd Defendant has also pleaded and led evidence to the fact that it is mainly the responsibility of the 3rd Defendant to maintain peaceful, conducive and breach free atmosphere at the project site for the running of the day to day activities of the EGTL project. These much was pleaded and evidence was led on the said pleaded fact. He referredto paragraphs 7, 8, 9 and 10 of the 3rd Defendant’s Statement of Defence and the 3rd Defendant Witness Deposition on Oath. The Claimant in his reply brief to the said pleadings merely danced around the weighty fact deposed therein. The issue that led to the setting up of the Panel has nothing to do whatsoever with the Claimant’s employment with the 1st Defendant but the peculiar issue of non-payment of spillover allowance and the resultant stoppage of work at the site from the incitement of junior workers by the Claimant and his cohorts. This counsel submitted is the exclusive responsibility and duty of the 3rd Defendant. That in the tort of unlawful interference, the Court must construe and give regard to the peculiar circumstances of each case, the rights of the parties, the nature of the contract and the fact of the interference. He referred to the House of Lords decision in BRADFORD CORPORATION V PICKLES (1895) A.C 587. The Privy Council further held that wherever a right is infringed, and damage results, an action will lie unless the defendant can ‘show’ that he was exercising a right or discharging a duty.The case of the 3rd Defendant in setting up the Disciplinary Panel and the findings or Recommendation of the Panel was in the exercise of its right, duty and responsibility as the main contractor or in the very words of the Claimant under cross examination, as the ‘boss’ of the ESCRAVOS EGTL work site. The 3rd Defendant therefore set up a Panel made up of the officers of the operating Companies under the EGTL Industrial Relations Committee (IRC) to investigate the allegations in the letter of complaint and make necessary recommendation. The said Committee is one of the Standing Committees for the EGTL project while the composition of the membership is per cases referred to the Committee. This much was also pleaded by the 3rd Defendant. That Exhibit N dated 9th February 2011 which is the report of the Panel speaks for itself. The allegations against the Claimant are clear on the face of itcirculating of false information through the said Exhibit C, incitement of workers against the 2nd Defendant’s Management and gross insubordination/failure to follow instructions. The finding of the Panel which is an Exhibit before the court is equally clear as to the involvement of the Claimant and the part the Claimant played. This much was also pleaded in paragraph 14 of the 3rd Defendant’s Statement of Defence. A document when admitted is meant to say what is on the face of it and no party including the Court should read into a document what is not stated therein. It is now firmly settled that documentary evidence is the best evidence. Counsel referred to the case of SKYE BANK PLC. V AKINPELU 2010 8 NWLR Pt. 1198 Pg. 179. To counsel, aside from the findings in Exhibit N, there is no purported charge or sentence. There was no accuser, prosecutor and judge. No pronouncement of guilt was made by the Panel. It was a ‘Recommendation’ which is also supported by the pleadings and evidence of the 3rdDefendant. Under cross examination, DW1 stated clearly amongst other facts stated that ‘my Company does not have any direct relationship with the 3rd defendant. My company does not take any direct instruction from the 3rddefendant’. This, counsel submitted, further established the fact that the findings and outcome of the Panel were recommendations. Lastly, that the Claimant by pleadings and evidence did not place any other document or facts before the Court that emanated from the 3rd Defendant which directly affected or interfered with his contract of employment with the 1st Defendant. The notice of suspension — ‘Exhibit D’ pleaded and tendered was not authored by the 3rd Defendant neither was it signed by any of the officers of the 3rd Defendant. The said Notice of Suspension was issued by the Claimant’s direct employer and not the 3rd Defendant. Counsel submitted therefore that the purported injury if any is not the direct cause of the act of the 3rd Defendant. There is no legal right of the Claimant to be employed at the site of the 3rd Defendant in ESCRAVOS hence no vested right was infringed by the 3rd Defendant, according to counsel. The 3rd Defendant equally has the vested right to determine and decide who is to be airlifted to ESCRAVOS, which, counsel submitted, is not the contractual right of the Claimant with the 1st Defendant. Since there is no vested legal right of the Claimant to work in the EGTL site of the 3rd Defendant, then there can be no breach whatsoever, counsel submitted. That in a similar case of THOMAS FRANCIS ALLEN V WILLIAM CEIDGE FLOOD & ANOR. 1895 A.C 1 @ 5, the Privy Council held thus: ‘The Respondent had no right to be employed, and no vested right was infringed. The person who discharged the respondent was the employer, whose act, therefore and not the suggestion of the Appellant was the proximate cause of the damage. An act which does not amount to a legal injury cannot be actionable even if done with a bad intent’ Lastly, counsel submitted that the 3rd Defendant commits no wrong of inducement by setting up the Panel and by the recommendation of the said Panel in its own site. ‘A person inducing a breach of contract commits no actionable wrong if his conduct is justified’. He referred to Halsbury’s Laws of England 4th Ed (Reissue) para 690 and also the case of PRITCHARD V BRIGGS (1980) 1 All ER 294 at 326 per Goff LJ.He urged the Court to resolve this issue in favour of the 3rdDefendant. ISSUE THREE On the third issue, learned counsel stated that the Claimant’s claim against the 3rd Defendant which flowed from the declarative order is for general damages for the interference and inducement of the breach of his contract with the 1st Defendant. The measure of damages in employment matters is calculated in accordance with the normal principles applicable to actions for breach of contract. General damages in employment matters are awarded to compensate the employer or employee as the case may be and not to punish. He further submitted that in cases where the Court awards specific damages in favour of the employee as claimed, it is still not penal but liquidated damages. It is trite that punitive or exemplary damages are not awarded for breach of contract. He cited the book,‘The Modern Law of Employment by G.H.L Fridman’ (London Stevens & Sons).To counsel, the general principle and law of measure or quantum of damages both in tort and contract matters is ‘that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’ as stated in the speech of Lord Blackburn. Furthermore in the case ofA.S.E.S.A V. EKANEM (2009)13 NWLR (Pt. 1158) p.410 at 439,Adekeye JSC held as follows: ‘I have to confirm that an award of damages either special or general, are not awarded as a matter of course but on sound and solid legal principles and not on speculations and sentiments. Neither is it awarded at large or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury’ (underline counsel’s). The cause of action and claim of the Claimant in this suit basically is for breach of employment contract and constructive dismissal. The Claimant’s declarative prayer against the 3rd Defendant specifically is for unlawful interference with his contract of employment and inducement for the breach of his contract of employment. The claim for general damages can only be premised on the said prayers. Where this Honourable Court upholds the submissions above under the first issue, the claim of the Claimant for general damages automatically must fail. It is trite that without any injury or wrong suffered, there can be no order as to damages as this would amount to putting something on nothing, relying on MACFOY V. U.A.C (1962) AC 152.In the unlikely event that this Honorable Court holds otherwise, counsel submitted that the Claimant has not discharged the burden of proof placed on him in law to entitle him to judgment against the 3rd Defendant. The Claimant has been unable to show and discharge the static burden that the 3rd Defendant is a stranger to his contract of employment. The Claimant equally failed woefully to establish the fact that the 1st Defendant was induced by the 3rd Defendant to breach the contract of his employment as the 1st Defendant categorically Pleaded and gave evidence in the affirmative that it has no direct dealings with the 3rd Defendant. The Claimant therefore must sink with his claim for failure to discharge this burden of proof. That in the case of N.R.W IND. LTD. V. AKINGBULUGBE 2011 11 NWLR Pt. 1257 Pg.131 @ 148 para C-G, the Court of Appeal held that: ‘It is not the duty of the employer to prove any of these facts. In the instant case, the submission of counsel for the respondent that the burden shifted to the appellant to prove that the termination of the respondent’s employment was in compliance with the respondent’s letter of employment has no basis in law. The burden was on the respondent and remained on him throughout the case. He went to court to seek for certain declarations and damages for wrongful termination of his employment, he surely bore the burden of proving the wrongful termination, not the appellant’. Furthermore, in the unlikely event that this Honourable Court holds otherwise, the measure of damages for breach of the contract of employment of the Claimant would be the amount of money stated in the said contract of employment. The Court will note that there is no provision for severance or termination in Exhibit A placed before the Court. In fact, the opening paragraph in Exhibit A provided expressly that the Claimant employment agreement ‘shall be valid for one (1) year, but the validity may be extended or reduced at the discretion of the employer or upon work availability’.This provision shows that the employment of the Claimant is at the pleasure of the 1st Defendant or upon work availability. This, counsel submits, conforms to the age long principle of law that a master can terminate the contract of employment with the servant at any time for any reason or for no reason whatsoever. This common law principle which has received judicial blessing from our Appellate Courts is to the effect that a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. The only exception to this common law rule is in respect of employments with statutory flavor. He referred to the case of SHITTA-BEY V. F.P.S.C 1981 1 SC 40. Counsel continued that the employment of the Claimant with the 1st Defendant was not a statutory employment and therefore does not fall within the purview of the known exception. Where however the contract is terminated in a manner inconsistent with the terms of the contract of employment, the master must pay for the breach. The quantum of the damages is the equivalent of the notice or the money in lieu of notice. In ONALAJA V AFRICAN PETROLEUM LTD. 1991 7 NWLR Pt.206 Pg.691 698 para F ‘The measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salary up to retirement’. Counsel further submitted that the Claimant cannot claim wages or salary for the services he never rendered upon the said constructive dismissal or termination of his employment. In SPRING BANK PLC. V. BABATUNDE 2012 5 NWLR Pt. 1292 Pg. 83 101 para C-D the Court of Appeal followed the earlier Supreme Court decision in OLATUNBOSUN V. NISER COUNCIL 1988 2 NWLR Pt. 80 Pg. 25 held thus: ‘A servant who has been unlawfully or wrongfully dismissed cannot claim his wages for services he never rendered’. Lastly in the determination of the quantum of damages, this Honorable Court must put to mind the fact that the employment of the Claimant was never terminated. Exhibit N on the face of it is mere recommendation of the Disciplinary Panel of the 3rd Defendant and this did not terminate the employment of the Claimant notwithstanding the gross misconduct found on him in the entire crisis of January 2011. Counsel invited the Court to read the attitude of the Claimant before the Panel as recorded in Exhibit N and the findings of the said Panel. He submitted that the acts of the Claimant amounts to gross misconduct being a breach of the provisions of Article 17 of his Employment Agreement (EGTL PLA). In C.C.B NIG. LTD V. NWANKWO 1993 4 NWLR Pt 286 Pg. 159 ( 171 para H, the Court of Appeal held thus; ‘An act which amounts to misconduct warranting dismissal of a servant by his master is generally an act of willful disobedience to lawful and reasonable orders, misconduct of master’s business’. That the Claimant by Exhibit C, the part he played in the entire saga and the crisis that ensued thereafter deliberately undermined the relationship of confidence between the 1stand 2nd Defendants on one hand particularly by the caption of the said letter. This Court will note that there is noprivity of contract between the Claimant and the 2nd Defendant. This much was pleaded and evidence led by the Claimant during trial. Claimant’s position was that upon his transfer to the 1st Defendant by the Defendant, he has no contractual relationship with the 2nd Defendant. However, the Claimant signed and actively procured the signing of a letter of protest to the 3rd Defendant against the 2nd Defendant by over 62 staff that were not direct staff of the 2nd Defendant at the project site. The instigation of the junior staff by the Claimant and his cohorts, the active involvement of the Claimant in the collection of several names and signatures on a plain sheet of paper and the meddling in the employment matters of other junior staff of other employer when the NUCECFWW responsible for the said staff was already seised of the matter (Exhibit P) is grave and gross misconduct. It is the law that a party should not benefit from its misconduct or illegality. The Claimant, instead of mitigating his damages, refused bluntly to comply with the recommendation and thereby was not booked back to the project site. In C.C.B NIG. LTD V. NWANKWO 1993 supra @ 170 para C it was held that: ‘An employee who has been dismissed in breach of his contract of employment is not entitled to treat the contract as subsisting and sue for accounts of profit which he would have earned to the end of the contract. He must sue for damages for wrongful dismissal and there is a duty on him to mitigate these damages as far as he reasonably can’. Counsel submitted that the Claimant failed to mitigate his damages as far as was reasonable and is therefore not entitled to any damages whatsoever from the 3rd Defendant. His insolent and unapologetic attitude as found by the Panel was further established by his refusal to comply with the terms of the suspension notice in a misconduct that fetched him an outright dismissal. He urged the Court to resolve this issue against the Claimant. CONCLUSION Counsel submitted that the case of the Claimant is bound to fail being premised on tortuous liability of unlawful interference and inducement of breach of contract. The Claimant by his employment agreement with the 1st Defendant directly by incorporation and adoption of the EGTL PLA 2010 — Exhibit B entered into contractual relationship with the 3rd Defendant. The lawful act of the 3rd Defendant at the instance and invitation of the Claimant and his cohorts in the letter of protest addressed to the 3rd Defendant — Exhibit C and in the pursuit of the exclusive responsibility and duty of the 3rd Defendant in the control of the site location of the project, the daily scope of work, the site policies, rules and regulations and the maintenance of peace and conducive work environment at the site cannot amount to unlawful interference and inducement of breach. Therefore, to counsel, once the Court comes to this irresistible conclusion, the 3rd Defendant cannot be liable in general damages to the Claimant as damages flows from an established legal right or an actionable wrong or injury from the unlawful direct act of the liable party. The Claimant has no such established legal right to work at the EGTL site of the 3rd Defendant as the major contractor on site. Equally, the Claimant has no such legal right to be airlifted by the 3rd Defendant to the work site. Claimant’s legal right to employment if any is with the 1st Defendant and in the 1st Defendant’s office or site. The ESCRAVOS site does not belong to the 1stDefendant and the 1stdefendant is equally not the major contractor. He therefore urged the Court to dismiss the claims of the Claimant against the 3rd Defendant with substantial cost in its entirety. CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF HIS CASE AGAINST THE 1ST DEFENDANT Issues for Determination. From the totality of the pleadings that went to trial, the evidence led and documents tendered, the following issues are placed before this Honourable Court for determination: (i) Given the state of pleadings and the evidence led in this matter whether it can be said that the Claimant disappeared from his work site in Escravos and refused to resume duty or that he abandoned work. (ii) If the answer to issue one is in the negative and given that fact that the Claimant’s contract was not terminated by the 1st Defendant, whether or not the Claimant is entitled to his full salary and allowances from February 2011 to December 2011. (iii) In the alternative, given the peculiar nature of the Claimant‘s contract, whether or not the 1st Defendant‘s ratification and adoption of the extra contractual disciplinary actions taken against the Claimant unlawfully by the 2nd and 3rd Defendants, does not amount to constructive dismissal of the Claimant thus entitling him to his full salary and allowances from February 2011 to December 2011. (iv) The 1st Defendant having ratified, adopted and acted on the unlawful disciplinary actions taken against the Claimant by the 2nd and 3rdDefendants, whether or not the Claimant is entitled to claim of general damages. Arguments on the Issues for determination ISSUE (ONE) Learned Claimant’s counsel submitted that given the pleadings and the evidence before this Honourable Court, it cannot be said that the Claimant disappeared from the project site (the Claimant’s place of work) in Escravos, refused to resume duty and/or abandoned work. The crux of the 1st Defendant’s defence as expressly averred in paragraphs 4(d) and (h) is that the Claimant disappeared from his work site and refused to resume duty. In order for the 1st Defendant to establish the allegation which forms the fulcrum of its defence, credible and convincing evidence must be led. It trite law, that, he who asserts must prove. See section 131 of the Evidence Act, 2011. To effectively determine this issue, counsel submitted, a salient question must first be answered, i.e., where is the Claimant’s work site or place of work? An answer to this point would assist this Honourable Court to effectively decide this issue. I now proceed to examine the pleadings and evidence before your Lordship to determine where the Claimant’s work place or work site is. The Claimant’s Work site or place of work 3.2 The Claimant in paragraph 5 of his Amended Statement of Facts pleaded as follows: “5. The Claimant was employed in November 2008 by the 2nd Defendant as an Electrician Grade 3 on a yearly renewable contract. The contract empowered the Defendant transfer the services of the Claimant to another company engaged in the EGTL project. The Claimant worked in the 2nd Defendant from November 2008 to December 2010. At the end of the Claimant’s contract in 2010, he was transferred by the 2nd Defendant to the 1st Defendant. Upon his transfer, a new employment contract for a period of one year was executed between the Claimant and Defendant on December 25, 2010. The 2nd and 3rd Defendants were not parties to the employment contract under reference.The Claimant’s work site is the EGTL project site at Escravos, Delta State. The Claimant avers that the 2nd Defendant having transferred his services to the 1st Defendant, all contractual rights and obligations between him and the 2nd Defendant ended”. (emphasis supplied by counsel). Continuing, counsel stated that in reaction to paragraph 5 of the Claimant’s Amended Statement of Facts, the 1stdefendant averred thus: “The 1st Defendant is not in position to affirm or admit paragraphs 3, 4, & 5 of the Claimant’s Statement of Facts and same is hereby denied.” The same averment was repeated in paragraph 5 of the 1st defendant’s witness written statement on oath. It is submitted that that this averment and deposition of the Defendant and its witness amounts do not amount to a proper traverse and as such is deemed to be an admission. See Useni v. Dawodu (1994) 4 NWLR (Pt. 338) 390 at 410. It is not proper traverse to barely state that the 1stdefendant is not in position to affirm or admit specific averments. The 1st Defendant did not plead or lead evidence that the Claimant has another work site. The Claimant gave evidence in support of his work site or place of work in paragraph 5 of his written statement on oath as follows: “5. I was employed in November 2008 by the Defendant as an Electrician on Grade Level 3 on a yearly renewable contract. The contract empowered the 2nd Defendant to transfer my services to any other company engaged in the EGTL project. I worked in the 2nd Defendant from November 2008 to December 2010. At the end of my contract in 2010, I was transferred by the 2nd Defendant to the 1st Defendant. Upon my transfer, a new employment contract for a period of one year was executed between me and 1stDefendant on December 25, 2010. The 2nd and 3rd Defendants are not parties to the contract. My work site is the EGTL project site at Escravos, Delta State”.(emphasis supplied by counsel). The Claimant was not cross-examined by the defendant’s Counsel as to whether there is another work site or project site outside Escravos where he works. The legal effect and consequence in law of the failure of Counsel to cross examine is that the 1st Defendant admitted or conceded that Escravos is the only work site or work place of the Claimant. On the effect of failure of Counsel to cross examine a party or witness on a material fact, learned claimant’s counsel referred to the case of C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142 at 152. That beyond the admission on the part of the 1st Defendant that the Claimant’s work site is Escravos, the 1st defendant’s witness, DW1 confirmed during cross examination when asked by Claimant’s Counsel where the Claimant works as follows: The Claimant works at Escravos. This clear and unambiguous answer from DW1, lays to rest Claimant’s work site or work place. Counsel further submitted that the Claimant’s employment agreement, Exhibit A in paragraph 1 expressly referred to the EGTL Project and NUCECFWW. Paragraph 2 of Exhibit A referred to the Claimant’s earlier contract with the 2ndDefendant (Daewoo Nigeria Limited) and the EGTL project. The same paragraph refers to EGTL Project Labour Agreement, 2010 (Exhibit B). The acronym EGTL, stand for Escravos Gas to Liquid Project. He cited paragraphs 2 and 3 of the Claimant’s Amended Statement of Facts as well as paragraphs 2 and 3 of his written statement on oath. The question as to where the Claimant’s work place or site is located is further documented by the last word (Escravos) on the front page of Exhibit B. Thus this documentary evidence puts this point to rest. It follows therefore that all rights, privileges and liabilities flowing from Exhibit A start and end at Escravos. Exhibits A and B are documentary evidence. It is settled law that documentary evidence is the best evidence, document being the best proof of its content, no oral evidence will be allowed to discredit or contradict the said contents except in cases where fraud is pleaded. He relied on the case of Skye Bank Plc v. Akinpelu (2010) All FWLR (Pt. 526) 460. Counsel proceeded to examine the facts leading to the Claimant being booked out of Escravos on 8/2/2011 and the reason he could not get back to Escravos. The Claimant in paragraphs 10, 11, 12, 13, 14 of his Amended Statement of the facts leading to his being booked out of the work site in Escravos on 8/2/2011 as follows: 10. The workers affected by the spill including the Claimant tried to resolve this issue with 2nd Defendant’s Administrative Department but Mr. M.S. Kim (the Assistant Administration Manager of the 2nd Defendant) tried to discourage them from pursuing their legitimate entitlement. When it became clear that the affected workers would not abandon their legitimate claim, Mr. Kim directed them to channel their claim to the Defendant. 11. Acting on the direction of Mr. MS Kim, the Claimant and the affected workers collectively signed a letter dated January 27, 2011 addressed to the 3rd Defendant to ascertain its position on the matter. Due to the said letter, the money was eventually paid. 12. Rather than lay the issue to rest, the 2nd and 3rd Defendants decided to victimize the Claimant and eight other workers who signed the letter referred to in the above paragraph for daring to fight for their legitimate entitlement. In furtherance of the their victimization plan, the 2nd and 3rd Defendants unceremoniously booked out the Claimant and the other eight workers from the project site on February 8, 2011 to face a Disciplinary Panel at the 3rd Defendant’s office in Effurun. The Claimant had no choice in the matter but to pack his bag. On arrival at the 3rd Defendant’s office on February 8, 2011 the Claimant was summoned to appear before the said Disciplinary Panel made up of Mr. Dickson AjoborEyenmienbai and Mr. Chris Nevo both employees/representatives or persons authorized to act on behalf of the 3rd Defendant. 13. The charge against the Claimant as laid out by the Panel was that he dared to ask for his legitimate entitlement. The Panel who were the accuser, prosecutor and judge immediately found the Claimant guilty and there and then sentenced him to 4 weeks (28 days) suspension in blatant disregard to the terms and conditions of his employment contract with the 1st Defendant. Owing to the verdict of the Disciplinary Panel, the Claimant was not booked back to project site to continue his shift.” Counsel continued that the Claimant further averred in paragraph 22 of his Amended Statement of Facts as follows: ‘22. The Claimant avers that the 1st Defendant having breached his employment contract and barred him from going back to work, he is entitled to his salary, allowances, bonuses and other entitlements from February 2011 to the time of filing this suit and thereafter till the expiration of his contract in December 2011 same having not been terminated. The Claimant avers that prior to the action of the Defendants he had an unbroken record of continuous work at the EGTL project from November 2008 to the time he was unceremoniously summoned to appear before the disciplinary Panel in February 2011. The reason for the Claimant’s inability to resume and continue his work in accordance with his contract with the 1st Defendant is purely the fault of the Defendants “. (emphasis supplied by counsel). Counsel stated further that the Claimant also gave evidence in support of the above averments and he referred the court to paragraphs 17, 21 and 23 of the Claimant’s written statement on oath. The Claimant in paragraph 12 of his witness statement clearly gave evidence leading to his being booked out of Escravos as follows: “12. Rather than lay the issue to rest, the Defendants decided to victimize me and eight other workers who signed the letter for daring to fight for our legitimate entitlement. In furtherance of the defendants’ victimization plan, I was booked out along with eight workers from the project site on February 8, 2011 to face a Disciplinary Panel at the 3rd Defendant‘s office in Effurun. I had no choice in the matter but to pack my bag. On arrival at the 3rd Defendant‘s office on February 8, 2011, I was summoned to appear before the Disciplinary Panel made up of Mr. Dickson AjoborEyenmienbai and Mr. Chris Nevo both employees’ representatives or persons authorized to act on behalf of the 3rd Defendant.” Also in answer to paragraph 12 of the Claimant’s Amended Statement of Facts, the 1st defendant pleaded in paragraph 4(c) of its statement of defence that “The 1st Defendant is not aware of the panel set up to investigate the Claimant neither did the Claimant complain to the Defendant of his ordeal with the 2ndand 3rddefendant (sic) staff.” The Claimant in paragraph 1 of his Reply to the 1stDefendant’s Statement of defence averred as follows: “1. Contrary to the averments in paragraph 4 (a), (b) and (c) of the 1st Defendant’s Statement of Defence, the Claimant states that the 1st Defendant has representatives at the work site in Escravos and as such it cannot claim ignorance of the actions of the 1st and 2nd Defendant as it relates to the illegal disciplinary panel and its outcome”. According to counsel, the Claimant maintained during cross examination that he was booked out of his work place and summoned to appear before the disciplinary panel. Under cross-examination, DW1 stated that the 1st Defendant has representatives at Escravos (the Claimant’s work site) who take attendance of the 1st Defendant’s workers on site every day. It is submitted that by this admission, the 1st Defendant cannot in honestly say that it was not aware of the disciplinary panel. The Claimant pleaded facts and gave evidence that the 1st Defendants has representatives at the project site. DW1 confirmed under cross examination that the 1st Defendant has representatives at the project site and stated further that the representative take attendance of the 1st Defendant’s workers on the site every day. It thus follows that taking daily attendance of its workers at the project site is a common course of business followed by the 1stdefendant. Counsel submitted further that presumption of knowledge of the fact that the Claimant was booked out from the work site on 8/2/2011 must be imputed on the 1st Defendant. This cannot be otherwise according to counsel and he urged the Court to invoke the provisions of section 167 (c) of the Evidence Act, 2011. He continued that from the content and tone of Exhibit D, the 1stdefendant was aware of the facts and circumstances of the disciplinary panel. Exhibit D is a document from the 2nd Defendant to the 1stDefendant. The language, content and tone of Exhibit D show that the 1st Defendant was already aware of the disciplinary panel which not only affected the Claimant but one OnikoGodspower, an employee of the 1st Defendant. He then urgedthe Court to refer to Exhibit D. Counsel stated further that the 1st Defendant cannot say that the Claimant did not complain of his ordeal with the 2nd and 3rd defendants’ staff. That the fallacy of the 1st defendant’s defence is further exposed by Exhibit “D”, Notice of Suspension of the Claimant sent by the 2ndDefendant to the 1st Defendant. Exhibit D was given to the Claimant by the 1st defendant’s Manager, Okene Bartholomew in March 2011. The fact that Okene Bartholomew acted as the 1st Defendant’s Manager at the time material to this suit and that he gave Exhibit D to the Claimant was not specifically denied or controverted. It follows therefore that these facts are admitted. To put this fact to rest, DW1 confirmed during cross examination that Okene Bartholomew used to be the 1st Defendant’s Manager. That finally on this issue, counsel submitted that the 1st Defendant who pleaded but failed to lead evidence that the Claimant actively participated and agreed to abide by the decisions of disciplinary panel of the 2nd and 3rd defendants as well as that the Claimant wrote false and misleading petition against its client (the 2nd Defendant) and deceptively procured workers’ signature on blank sheet attaching same to Exhibit C without the consent of the workers, cannot claim ignorance of the disciplinary panel setting and its outcome. (He referred to paragraphs 4 (e) and (h) of the Defendant’s Statement of Defence. The 1st Defendant cannot approbate and reprobate. It cannot in one breath deny knowledge of the existence or the presence of a particular fact while in another, seek to justify its action or inaction on the same fact. It is submitted that the 1st Defendant cannot put up inconsistent defence. On the need for a party to be consistent, the Supreme Court, perNiki Tobi, JSC, in Onyekwelu v. ELF Petroleum Nig. Ltd (2009) All FWLR (Pt. 469) 426 at 442, held: “it is elementary law that a party must consistently make his case and not change like the weathercock in climatology”. It is also settled law that parties are bound by their pleadings. See Agbanelo v. U.B.N (2000) 23 WRN 1. Evidence of Process that the Claimant must go through before getting to Escravos. The Claimant averred in paragraph 7 of his Amended Statement of Facts the process to be followed for him to get to Escravos. In the last sentence of paragraph 22 of his Claimant’s Amended statement of claim the Claimant averred as follows: “...The reason for the Claimant’s inability to resume and continue his work in accordance with his contract with the 1st Defendant is purely the fault of the Defendants”. That under cross examination, the DW1 stated that “we don’t take the Claimant to Escravos, our client (the 2nd Defendant) arrange the logistics of the Claimant.” It should be noted that DW1 had earlier during cross examination testified that he was not aware that the Claimant cannot get to Escravos without the permission of the 1st, 2nd and 3rd Defendants. It is submitted that this contradiction in DW1 evidence strikes at the credibility of his testimony. He then referred to the case of Onuoha v. State (1989) 2 NWLR (101) 23 at 34.He then stated that it is settled law that a witness who testifies falsely on matters which are within his knowledge, leaves no room for any Judge to credit him with any credibility on issues in contest before him, referring to the case of Nnajiofor v. Nkonu (No. 2) (1986) 4 NWLR (Pt. 36) 505 at 521 and Oyeneyin&Anor v. Akinhugbe&Anor (2001) 1 NWLR (Pt. 693) 40 at 54. Furthermore, counsel continued that in order to determine the process that the Claimant must go through to get to Escravos therefore, attention has to shift to DW2 testimony. DW2, Dickson Eyenmeinbai, under cross examination stated the procedure as follows: if the 1st and 2nd Defendants book the Claimant, the 3rd Defendant approves. It follows therefore that the first step in the process of the Claimant getting to Escravos is for the 1stand 2nd Defendants to book him. The Claimant’s case as can be gleaned from the Amended Statement of Facts, Replies to Defendants’ statements of defence as well as his evidence, is that he was not booked back to Escravos after the disciplinary panel hearing of 9/2/2011. The Claimant’s pleadings and evidence on this fact was not controverted and it is submitted that the Defendants could not have controverted it. Exhibit D further confirms that the 1st Defendant must first book the Claimant before he can be taken to Escravos. He referred the Court to the third line of Exhibit D. Effort made by the Claimant to get back to Escravos after the unlawful Disciplinary Panel hearing. Learned counsel stated that the Claimant maintained during cross examination by the 3rd Defendant’s Counsel that he did not abandon work and that he went to the bus stop on several occasions but his name was not on the manifest of workers booked back to Escravos. It is pertinent to emphasize that it was the 1st Defendant’s Manager, Okene Bartholomew that gave Exhibit D to the Claimant. It follows therefore that the 1stDefendant who knew the implication of Exhibit D and the procedure the Claimant must follow to be booked back to Escravos cannot after ratifying and justifying the actions of the 2nd and 3rd Defendants turn around to say that the Claimant disappeared from Escravos and efforts to trace him was to no avail. The 1st Defendant did not plead or lead contrary evidence on how the Claimant disappeared from his work site or that the Claimant has magical powers that enable him to disappear from Escravos and landed in this Court. No report was made to security agencies when the 1st Defendant discovered that the Claimant was missing from Escravos which is a closed camp. That in paragraph 15 of the Claimant’s written statement on oath, the Claimant deposed as follows: “15. Sometime in March 2011, 1 was called by OnikoGodspower (a co-worker who also appeared before the Disciplinary Panel) to come to the Defendant’s office in Effurun. On getting there, the Manager of the 1stDefendant, Okene Bartholomew printed and gave me a copy of the notice of suspension sent via email by Mr. M.S Kim to the 1st Defendant. The suspension notice restated my earlier suspension by the Panel and further stipulated that I must: (a) write a letter of apology to the 2’ Defendant’s management and (b) provide an undertaking signed by the 2”’ Defendant’s union.” (emphasis supplied by counsel). Counsel then submitted that the above averment was not specifically denied by the 1st Defendant. It is submitted that it is deemed admitted. He cited section 123 of the Evidence Act, 2011. He continued that it is also interesting that DWI under cross examination confirmed that the Claimant came to the 1stdefendant’s office in Effurun and that as he was leaving Okene Bartholomew mentioned to him that he was the Claimant. Though DW1 who obviously was economical with the truth as to when the Claimant visited the office as he stated that he could not remember, further stated that he contacted the Claimant on telephone officially in March 2011 allegedly in relation to accounting purposes. DWI further stated under cross examination that he contacted the Claimant again on telephone after his first call in March and that the Claimant paid some money into his account. The Claimant on being asked as to why he left the work site under cross examination from the 1st defendant’s Counsel stated as follows: “I was summoned to appear before the disciplinary panel”. It is absurd and totally bizarre for the 1st Defendant to allege that the Claimant disappeared from the work site and abandoned work. From the pleadings before the Court and evidence led during trial, it is crystal clear that the Claimant cannot get to or return from Escravos without being booked by the 1st defendant since the Claimant and other workers are airlifted to and from Escravos. The Claimant in paragraph 12 of his written statement on oath deposed thus: “12. Rather than lay the issue to rest, the Defendants decided to victimize me and eight other workers who signed the letter for daring to fight for our legitimate entitlement. In furtherance of the defendants’ victimization plan, I was booked out along with eight workers from the project site on February 8, 2011 to face a Disciplinary Panel at the 3rd Defendant’s office in Effurun. 1 had no choice in the matter but to pack my bag.On arrival at the 3rdDefendant‘s office on February 8, 2011, 1 was summoned to appear before the Disciplinary Panel made up of Mr. Dickson AjoborEyenmienbai and Mr.ChrisNevo both employees/representatives or persons authorized to act on behalf of the 3rd Defendant “. (emphasis supplied by counsel). From the bolded, italized and underlined part of the above quoted paragraph, which was also pleaded in paragraph 12 of the Claimant’s Amended Statement of Facts, it is clear that the Claimant must be booked out of Escravos before he can leave the work site. Learned counsel submitted that it is fallacious for the 1st Defendant to aver in paragraph 4 (d) of its Statement of Defence as follows: “The Claimant is an employee of the 1st Defendant who disappeared from the work site and since then all effort to trace to no avail (sic)”. Aside the fact that DW1 stated that the Claimant came to 1st Defendant’s office and that he called twice on telephone, it is also instructive to state that the Claimant’s contract with the 1stDefendant, Exhibit A contains his address (the introductory part, No. 102 Ajamingha Rd, Warri) through which he could have been reached. The 1stdefendant did not plead or lead evidence on attempts made to trace the Claimant after his purported disappearance from the work site. It is also a huge irony that DW1, the 1stDefendant’s Accountant called the Claimant on telephone. Counsel therefore submitted that the arguments and submissions contained in the 1stdefendant’s written address to the effect that Claimant absconded from Escravos is not borne out of the record of this Honourable Court and as such it should be discountenanced. Learned Counselthen stated that from the above arguments and submissions, it is clear that the Claimant was booked out from Escravos on 8/2/2011 to appear before an extra judicial and unlawful disciplinary panel on 9/2/2011 and that the 1stdefendant was aware of the Claimant’s travails, justified, ratified and acted on the outcome of the disciplinary panel extra contractual punishments visited on the Claimant. Furthermore, that it is also not in dispute that the 1stDefendant’s allegation that efforts to trace the Claimant was to no avail is unsubstantiated and unsupportable. He therefore urgedthe Courtto answer this issue in the negative and find and hold that the Claimant did not disappear or abscond from the work site neither did he abandon his duty post. ISSUE TWO (2) On issue two learned counsel submitted that if issue one is answered in the negative, the Claimant should be entitled to his full salary and allowances from February to December 2011. He stated that the Claimant pleaded in paragraphs 22 and 23 of his Amended Statement of Facts as follows: “22. The Claimant avers that the 1st Defendant having breached his employment contract and barred him from going back to work, he is entitled to his salary, allowances, bonuses and other entitlements from February 2011 to the time of filing this suit and thereafter till the expiration of his contract in December 2011 same having not been terminated. The Claimant avers that prior to the action of the Defendants’ he had an unbroken record of continuous work at the EGTL project from November 2008 to the time he was unceremoniously summoned to appear before the disciplinary Panel in February 2011. The reason from the Claimant‘s inability to resume and continue his work in accordance with his contract with the 1stDefendant is purely the fault of the Defendants. 23. The Claimant avers that his daily wage as stated in his employment is N8,661 (Eight Thousand Six Hundred and Sixty One Naira) and by the contract he works twenty one days on every shift thus making his earning per shift to be N181,881.00 (One Hundred and Eighty One Thousand Eight Hundred and Eighty One Naira). There are13 (thirteen shifts per year. The Claimant avers that he is also entitled to a monthly Acceleration Bonus of N26, 172, 50 (Twenty Six Thousand One Hundred and Seventy Two Naira Fifty Kobo). The Claimant was paid Acceleration Bonus for January and February 2011.” To counsel, the above averments were not specifically denied or controverted by the 1stDefendant. The general traverse in paragraph 4 (i) of the 1st Defendant’s Statement of Defence and written deposition of DW1 in law does not amount to specific denial, relying on the case of Useni v. Dawodu (supra). That the Claimant in paragraph 22 of his written witness statement on oath deposed as follows: “22. My daily wage is N8,661 (Eight Thousand Six Hundred and Sixty One Naira. I work twenty one days on every shift making salary per shift to be N181, 881. 00 (One Hundred and Eighty One Thousand Eight Hundred and Eighty One Naira). There are 13 (thirteen shifts per year. I worked one full shift before appearing before the disciplinary panel on 8/2/2011. 1 am also entitled to a monthly Acceleration Bonus of N26,172.50 (Twenty Six Thousand One Hundred and Seventy Two Naira Fifty Kobo). I was paid Acceleration Bonus for January and February 2011.” Counsel then stated that the 1st Defendant’s Counsel did not cross examine the Claimant on the above evidence on his salary and entitlement. The legal effect and consequence in law is that they are deemed admitted or conceded by the 1stDefendant and the Honourable Court is bound to accept the amounts as proved. On the effect of Counsel declining to cross-examine a claimant’s items of particularized head of special damages, the Supreme Court, Achike, JSC in C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142 at 152 paragraphs 5 — 10 held: “This is clearly not the situation in the case in hand. In contrast, both the pleadings and the evidence led by the respondent clearly identified each item of special damages, so also its value. By declining’ to cross-examine on the items of particularized head of special damages, the inescapable inference was irresistible; to wit, that the defendants/appellants conceded the items of special damages. (emphasis supplied) To counsel, there is no evidence before the Court to suggest that the Claimant’s employment was terminated at any time. That as a matter of fact the 1st Defendant averred and led evidence expressly that his employment was not terminated. The reliefs sought by the Claimant against the 1stDefendant in paragraph 26 (1), (II) and (III) of his Amended Statement of Facts fall within the category of special damage claim, and they are clear and unambiguous. From the time the Claimant was prevented by the Defendants from going back to work to the time of filing the suit and up to the expiration of the Claimant’s employment agreement with 1st Defendant, Exhibit A was not terminated. Exhibit A was made on 25/12/2010 and it expressly stated that it is valid for one year though it may be extended or reduced at the discretion of the employer or upon work availability. In the absence of any pleading or evidence of reduction of the duration of Exhibit A or its termination on the part of the 1st Defendant, it follows that as expressly agreed by the Claimant and the 1st Defendant, Exhibit A was valid till 24/12/2011. Counsel added that the fact that Exhibit A was not reduced or terminated was admitted by the 1st defendant in paragraph 4 (h) of its Statement of Defence, wherein it was averred as follows: “The Claimant’s appointment as at then was not terminated despite his incessant act of gross misconduct capable of dismissal-writing a false and misleading petition against the 1st defendant’s client and deceptively procuring workers’ signature on a blank sheet attaching same to the petition without the consent of the workers (emphasis supplied by counsel)”. That the above averment was reproduced verbatim in paragraph 4 (h) of the written statement on oath of DW1. The 1st Defendant had earlier in the last paragraph of the first page of Exhibit M (1st defendant’s reply to Exhibit E, Claimant’s Solicitors letter of 28/6/2011) stated that the Claimant’s employment contract was not terminated, it is settled law that fact admitted needs no further proof. He cited the case ofOseni v. Bajulu (2010) 4 WRN 1 Ratio 8 at page 9 and section 123 of Evidence Act, 2011. The consequence of the 1st Defendant’s failure to plead or lead evidence as to whether the Claimant’s employment contract was subsequently terminated or reduced, it is submitted is that Exhibit A must ran its full course. Furthermore, according to counsel it must be reiterated that the Claimant also pleaded and led evidence that it was the Defendants that prevented him from going back to his work site at Escravos because they failed and/or refused to book him back after his summon and appearance before to the phantom disciplinary panel. The Court is then referred to paragraphs 13 and 22 of the Amended Statement of Claim and paragraphs 13, 21 and 23 of the Claimant’s witness statement on oath. He further submitted therefore, that this Court must restrict itself to the pleadings in paragraphs 22 and 26(1), (II) and (III) of the Claimant’s Amended Statement of Facts and paragraphs 22 and 36 of the Claimant’s written statement on oath to determine the Claimant’s entitlement from the 1stDefendant. The Claimant pleaded and led evidence that his daily wage is N8,661 (Eight Thousand Six Hundred and Sixty One Naira) and that twenty one days make a shift. Thus bring his total salary per shift to be N181,881.00 (One Hundred and Eighty One Thousand Eight Hundred and Eighty One Naira). The Claimant further pleaded that there are 13 (thirteen) shifts per year and that he only worked one full shift before appearing before the disciplinary panel on 8/2/2011.The Claimant also pleaded and led evidence on monthly Acceleration Bonus of N26,172,50 (Twenty Six Thousand One Hundred and Seventy Two Naira Fifty Kobo) and the fact that he was paid Acceleration Bonus in January and February 2011. The above averments and evidence were again not specifically denied or controverted and the Claimant was not cross-examined on them by the 1st Defendant’s Counsel. Applying minimal knowledge of arithmetic, counsel submitted that the Claimant’s entitlements are as follows: Monthly Salary: N181,881.00 (One Hundred and Eighty One Thousand Eight Hundred and Eighty One Naira). Number of Shifts per year: 13 Number of shifts Claimant is entitled to after January: 12 When N181,881.00 is multiplied by 12, the figure translates to N2,182,572. (Two Million One Hundred and Eighty Two Thousand Five Hundred and Seventy-Two Naira). Acceleration Bonus Paid Monthly: N26, 172, 50 (Twenty Six Thousand One Hundred and Seventy Two Naira Fifty Kobo) multiplied by 10 (ten) months — N262, 725. 00 (Two Hundred and Sixty Two Thousand Seven Hundred and Twenty Five Naira) Claimant’s total entitlement from the 1stDefendant under this head: N2, 444,297.00 (Two Million Four Hundred and Forty Four Thousand Naira). Continuing, counsel stated that the Claimant having pleaded specifically and led unchallenged evidence on his entitlements, this Honourable Court must accept the evidence and award the amount claimed. On the principle governing the award of special damages, the Court of Appeal, per Mshelia, JCA in Udo-Osoh v. CBN (2010) 52 WRN 134 at page 157 lines 5-10 held: “Special damages must be strictly proved. So far as special damages are concerned, a trial Judge cannot make his own assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded.” It is also trite law that a Judge especially a trial Court can rely and make findings based on unchallenged evidence in his judgment. On this point, the Supreme Court, per Mukhtar, JSC in Oseni v. Bajulu (supra) at pages 12-13 lines 40—5 held: “The law is trite that, evidence must be in line with a party’s pleading, and once the evidence is not successfully challenged, it has not been contradicted and it is relevant to the matter in controversy, a Judge can rely on it and make his findings based on such evidence in his judgment”. Counsel then submitted finally that the 1st Defendant having failed to specifically challenge or controvert the Claimant’s pleading and evidence on his entitlement, the legal effect and consequence of such failure is best captured by the dictum of Achike, JSC in C.E.C.T.C.S v. Ikot (supra) at page 152 lines 10 - 20: “Where the head for special damages was not challenged both in the pleadings in evidence, nor controverted and the nature of the evidence by its very nature was quite credible, then the trial court has no option but to accept and act on it.” He also referred to the cases of Omoregbe v. Lawani (1980) 3-4 S.C. 108and Bello v. Eweka (1981) 1 S.C 101. He therefore submitted that the Honourable Court should find and hold that the Claimant’s pleading and evidence on his entitlements from the 1st Defendant was not denied or controverted and his evidence on it is credible and as such he is entitled to the sum of N2,444,297.00 (Two Million Four Hundred and Forty Four Thousand Naira) as shown in paragraph 4.9 above. ISSUE THREE (3) Learned claimant’s counsel stated at the onset that this 3rdissue is argued in the alternative to issues one and two. He submitted that given the facts and circumstances of this case, especially (1) the punishments that the Claimant was mandated to comply with, which are expressly against the letter and spirit of Exhibits A and B, (2) the failure and/or refusal to book the Claimant back to the project site, and (3) the failure and/or refusal of the 1st Defendant to pay the Claimant’s salary and allowances after his appearance before the disciplinary panel on 9/2/2011 till the end of Exhibit A, the 1st Defendant constructively dismissed the Claimant. According to Professor Chianu, in his book, Employment Law, Akure, Bemicov Publishers, l’ Edition, 2004 at page 315: “A vital concept of employment law is “constructive dismissal.” Astute judges who appreciate industrial relations developed this (sic) it. It arises where an employer provokes an employee to resign either by creating or tolerating a hostile work environment or by unilaterally changing (or proposing a change) the nature of the employment, the place of employment, or important terms in the contract such as relating to pay. Once the court is satisfied that an employer’s conduct amounts to a repudiation of the contract of employment, it would hold that although the employee in form resigns, it in fact, accepts the employer’s repudiation and he is deemed to have been dismissed by the employer.” (emphasis supplied by counsel). It is settled law that implied in every contract of employment is mutual trust and confidence that an employer will not, without reasonable or proper cause, conduct himself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. See the case ofScally v. Southern Health and Social Services Board [1992] 1 AC 294 at 307 para B. That this point was driven home in the Judgment of Lord Steyn in Malik v. BCCI [1998] AC 20 at 45, wherein he held that a breach of the implied term of mutual trust and confidence extends to “any conduct of the employer likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. (emphasis supplied by counsel). Thus where the mutual trust and confidence is broken, the injured party can elect to treat the contract as repudiated by the offending party. In Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174 at page 188 paragraphs D to E, the Supreme Court held: “Where the master has purported to dismiss the servant, even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. A wrongful dismissal in complete disregard of the terms of the contract of service is obviously a repudiation by the master and the servant’s remedy is in action for damages only”. In Ilodibia v. N.C.C Ltd (supra), the Supreme Court upheld the finding of the trial Court that the indefinite suspension of the plaintiff and placement on half salary against the provision of his employment contract was wrongful and amounted to constructive dismissal. According to counsel, Exhibits A and B contain the terms and conditions of the Claimant’s employment contract with the 1st Defendant. It is settled law that parties are bound by their contract. Learned counsel stated that applying the principle of constructive dismissal to the facts of this case, he invited the court to the following undisputed facts: (1) The Claimant was suspended for four weeks as against a maximum of 10 days provided by Article 30.1.3 of Exhibit B. (2) The Claimant was mandated to write unreserved letter of apology to the 1st defendant and also an undertaking to be of good behavior signed by the junior workers’ union executive. (3) The Claimant was not booked back to the project site after the disciplinary hearing of 9/2/2011. (4) The Claimant was not paid his salary and allowances from February 2011 to the end of the duration of Exhibit A. (5) The 1st Defendant ratified, acted on Exhibit D and justified its actions on the purported findings and verdict of the disciplinary panel. See Exhibit M and paragraphs 4 (d), (g) and (h) of the 1stdefendant’s statement of defence. The items (1) to (4) above are some of the undisputed terms and conditions in Exhibits A and B breached by the 1st Defendant. The 1st Defendant failed to provide documentary evidence where the above punishments are provided for in the Claimant’s contract. It should be noted that even though Article 29.7 p) of Exhibit B incorporates Exhibit T it is only Article 30 of Exhibit B that contains agreed disciplinary measures between the Claimant and the 1st Defendant. It therefore follows that the ingredients of unlawful dismissal stated in Ayorinde v. Oyo State Government & 2 Ors (2007) All FWLR (Pt.356) 709, cited by the 1stDefendant’s Counsel in his final address have been satisfied by the Claimant. Counsel also submitted that assuming without conceding that the Claimant violated Exhibit T, by the provision of Article 30.7 of Exhibit B, he would have been dismissed immediately and not suspended. By the provision of Article 32 of Exhibit B, its duration is for twenty four months i.e, from 1/10/2010 to 30/9/2012. There is no evidence that Exhibit B was reviewed at all or by mutual consent of the parties that executed it. It follows therefore that the punishments meted on the Claimant are outside what he agreed to and as such damaged the very foundation of his contract with the 1st Defendant. The averment in paragraph 4 (h) of the defendant’s statement of defence that “The appointment of the Claimant was not terminated despite incessant act of gross misconduct capable of dismissal — writing a false and misleading petition against the 1stdefendant’s client and deceptively procuring workers’ signature on a blank sheet attaching same to the petition without the consent of the workers”, was not proved by the 1st defendant as it led no evidence in support. Bare repetition of the above averment in paragraph 4 (h) of DW1 written statement on oath is not capable of proving this weighty criminal allegation. It is submitted that this allegation is criminal in nature and the standard of proof required to establish same, is, “proof beyond reasonable doubt’. See section 135 (1) of the Evidence Act, 2011 and WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. The Claimant on his part denied the above allegation in paragraph 5 of his Reply to the 1st Defendant’s statement of defence and gave evidence on it in paragraph 27 of his written statement on oath. The Claimant was not cross-examined on this evidence. The legal effect and implication is trite. It is deemed admitted. DW1 under cross examination stated that he had not seen Exhibit C and that he was not there when it was written or signed. Obviously, he could not have stated otherwise because he lives and work at No. 72, Hospital Road Ekpan and not in Escravos. It follows therefore that his testimony is not only hollow but incapable of being believed and as such I urge Your Lordship to respectfully discountenance it. DW1 is not a credible witness to give evidence on what transpired in Escravos. His evidence contained in paragraph 5 (d), (e) and (h) amounts to hearsay as he was not in Escravos. On the rule against hearsay, the Court of Appeal in Orunlola v. Adeoye (1995) 6 NWLR (Pt.401) 338 at 353, cited with approval the decision in the case of Subramania v. D.P.P. (1956) W.L.R. to wit: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.” In the alternative, it is submitted that weight should not be attached to the evidence of DWl. The Claimant also gave unchallenged evidence that it was Mr. M.S Kim, the Assistant Administration Manager of the 2nd Defendant, that directed him and other workers affected by the spill to write Exhibit C. Exhibit 0 was written by the same Mr. M.S Kim. There is no evidence before Your Lordship from which it may be inferred that Mr. M.S Kim lacked the authority to direct the Claimant and others to write Exhibit C. It is submitted therefore that having authorized the Claimant and others to write Exhibit C, the Defendants, especially the 1st Defendant, cannot be heard to complain. The Defendants are therefore estopped from complaining. It is submitted that what is permitted cannot give rise to liability. See Michelin (Nig) Ltd. v. Alaribe (2010) All FWLR (Pt. 543) 1998 ratio 5. It is further submitted that given the circumstances the Claimant found himself the reasonable conclusion was that the 1st Defendant constructively dismissed him. The radical changes smuggled into the Claimant’s contract by the disciplinary panel which were adopted wholesale by the 1st Defendant, altered the foundation of Exhibits A and B and destroyed its very foundation. The failure and/or refusal of the 1st Defendant to book the Claimant back to the worksite and stoppage of his salary and the content of Exhibit D constituted a fundamental breach of the Claimant’s contract and it amounts to constructive dismissal. I therefore urge Your Lordship with respect to find and hold that the 1st Defendant constructively dismissed the Claimant. Article 15 of Exhibit B makes provision for proper termination of the Claimant’s contract. It provides that thirty (30) calendar days notice in writing be given by either party. The natural consequence of a case of constructive dismissal is that the proper procedure for terminating a contract was not followed. The legal effect and consequence therefore is that the dismissal is wrongful. It is respectfully further submitted that the 1st defendant’s Counsel misconceived the case of the Claimant. The itemized breach of the Claimant’s contract by the 1st defendant stated in paragraph 5.4 above is predicated on the 1st defendant’s ratification, adoption and justification of the findings and verdict of the unlawful disciplinary panel. It is not in dispute that the 1stdefendant ratified, adopted and acted on Exhibit D thus leading to the wrongful dismissal of the Claimant. The argument and submission in the defendant’s Counsel final written address that the spillover allowance and airlifting is the responsibility, of the 2nd and 3rd defendants clearly buttress the misconception of the Claimant’s case. Same goes to the argument that the Defendant was not part of the disciplinary panel. From the evidence before Your Lordship it cannot be submitted that the defendant became aware of the plight of the Claimant when it received Exhibit D. It is undisputed that the Claimant was given Exhibit D by the 1st Defendant’s Manager, Bartholomew Okene in March 2011. There is undisputed evidence that the 1st Defendant has representatives at the worksite who take daily record of its workers at the project site. There is evidence before this Honourable Court that the project site is a closed camp and that the Claimant cannot leave or gain access to the project site without the permission or authorization of the defendants. It is submitted further that if the 1st defendant was not aware that the Claimant was booked out of the project site on 8/2/2011, it would have paid him his salary for February 2011. There is no record that the Claimant was paid his February salary in 2011. The legal effect and consequence of finding that the Claimant was constructively dismissed It is submitted that the Claimant having made out a case that he was constructively dismissed by the 1stDefendant, he is entitled to his salary and other entitlements from February 2011 to December 2011. It is settled law that cases are determined by their peculiar facts. In Skye Bank Plc v. Akinpelu (supra) Ration 17, the Supreme Court stated this hallowed principle thus: “Each case must be considered on its own particular and peculiar facts or circumstances. No case is identical with the other or another. A decision is only an authority for what it decides and nothing else”. See also: Mobil Prod. (Nig) Unltd. V. Udo (2008) 36 WRN 53. It is submitted that the general principle of law that is applicable to master servant employment relationship is not applicable to the facts of this case. The first distinguishing factor in the case at hand can be found in Exhibit A. The Claimant’s contract is a contract for a fixed and ascertainable period. From Exhibit A, the contract is for one year and it commenced on 25/12/2010 and was billed to run till 24/12/2011. Secondly, having established that the Claimant was constructively dismissed with the attendant consequence of the dismissal being wrongful, the effect is that the Claimant is entitled to his full salary and allowances for the duration of the contract. On the measure of damages where a contract for a fixed term is wrongfully terminated, it was held in Mobil v. Asuah (2001) 30 WRN 25 at page 45 lines 30 — 40 thus: “Where a contract of employment is for a specified period, and the employee was wrongfully dismissed or removed from office then the award of damages in the full amount of salary and allowances and other entitlements which the employee would have earned if the contract of service had run up full course is the maximum that is recoverable except that the amount maybe reduced slightly for being payable as a lump sum”. (emphasis supplied) See also:SeeCattaneo v. Da Roclia (1932) 11 NLR 57 and Garabedion v. Jamakani (1961) 1 All NLR 177. The fact that the contract does not enjoy statutory flavour is of no moment. In Garabedion v. Jarmakani (1961) 1 All NLR 177 cited with approval in Mobil v. Asuah (supra), the contract was not one with statutory flavour. The contract in that case was for a fixed period of one year with provision for termination and payment in lieu of notice. But on the facts of the case, the Court held that the Plaintiff was entitled to his full salary, allowances and entitlements which the employee would have earned if the contract had run up its full course. The Claimant pleaded his salary and entitlements in paragraph 23 of his Amended Statement of Facts and gave evidence on it in paragraph 22 of his witness deposition. Again, he was not cross examined by the 1stdefendant’s Counsel on his salary and entitlements. It is submitted therefore that the Claimant’s evidence on his salary and entitlements are not challenged. On the effect of Counsel declining to cross-examine a claimant’s items of particularized head of special damages, see the Supreme Court, decision in C.E.C.T.C.S v. Ikot(supra). The effect of the unchallenged evidence of the Claimant is that Your Lordship with respect is bound to accept it as proved. ISSUE FOUR (4) The 1st Defendant, having ratified, adopted and acted on the unlawful disciplinary actions taken against the Claimant by the 2nd and 3rdDefendants, whether or not the Claimant is entitled to claim of general damages. It is submitted that 1st Defendant having ratified, adopted and acted on the extra contractual disciplinary actions taken against the Claimant by the 2nd and 3rd Defendants, (Your Lordship is respectfully referred to paragraphs 4 (e), (g) and (h) of the 1st Defendant’s Statement of Defence and paragraphs 4 (e), (g) and (h) of the witness deposition of DWI), a claim for general damages would lie against it. The legal implication of the averments and evidence in the above referenced paragraphs especially paragraph 4 (h) of both the Statement of Defence and witness statement on oath, is that the 1stDefendant made allegation or imputed the commission of crime on the Claimant as justification for withholding his salary from February to December 2011, when it conceded that the Claimant’s employment was not terminated. For ease of reference, I reproduce the averment in paragraph 4 (h) of both the 1st Defendant’s statement of defence and witness statement on oath: “The Claimant’s appointment at then was not terminated despite his incessant act of gross misconduct capable of dismissal — writing a false and misleading petition against the 1st Defendant’s client and deceptively procuring workers’ signature on a blank sheet attaching same to the petition without the consent of the workers...” NOTE: It should be noted that the “1st Defendant’s client” in the above paragraph refers to the 2nd Defendant in this case, Daewoo Nigeria Ltd. Your Lordship is also respectfully referred to the testimony of DWI under cross-examination on how the Claimant gets to Escravos. DWI answered as follows: “Our Client already arranged the logistics of the Claimant”. This allegation is also contained in Exhibit M, the 1st Defendant’s letter dated 12/7/2011. The above weighty criminal allegations abysmally devoid of particulars, by the Nigerian rule of evidence should be proved beyond reasonable doubt. See 135 of the Evidence Act, 2011 and the case of WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401. Beyond bare averment, the 1st Defendant failed to lead any evidence on the allegation of the Claimant “writing a false and misleading petition against the 1st Defendant’s client and deceptively procuring workers’ signature on a blank sheet attaching same to the petition without the consent of the workers”. The Claimant denied the above criminal allegations in paragraph 5 of his Reply to the 1st Defendant’s statement of defence and also put the 1st Defendant to strict proof of it termed “incessant act of gross misconduct capable of dismissal”. The petition that the Claimant was alleged to be false and misleading to which he purportedly deceptively procured workers signature on a blank sheet attaching same to the petition without the consent of the workers is Exhibit C. DW1 who is the only witness of the 1st Defendant stated during cross examination that “I have not seen Exhibit C”. DWI answer could not have been otherwise. DW1 an accountant lives and work at the 1st Defendant’s office at No. 72, Hospital Road, Effurun, a place different from Escravos where Exhibit C was typed and signed. The evidence of DW1 is at best hearsay as he was not in Escravos when Exhibit C was written or signed. The 1St Defendant failed to call any worker whose signature was purportedly procured on a blank sheet and attached to Exhibit C without his consent by the Claimant. It is clear therefore, that the Defendant did not lead any modicum or strand of evidence to prove this weighty criminal allegation. Should the 1st Defendant rely on the evidence of the 2nd and 3rdDefendants, I proceed to analyze Exhibit C and the evidence lead by 2nd and 3rd Defendants on this spurious and damaging criminal allegation. Turning to Exhibit C, It is evident from the first page that four of the five workers (Felix Ejutemiden, LuckyZaudumunnu, Ogala Abraham and OnikoGodspower) who 2nd Defendant in paragraph 9 of its statement of defence alleged that the Claimant fraudulently procured their signature signed the 1st page of Exhibit containing the body to the letter. Again the Claimant denied the averment in the above paragraph in paragraph 4 of his reply to the 2nd defendant’s statement of defence and gave evidence on it in paragraph 27 of his witness statement on oath. 2nd Defendant also failed to call any worker who it alleged the Claimant procured his signature without his consent. DW2 who admitted that he is staff of the 3rd Defendant (obviously a confused witness) under cross examination stated that he was not present at the place where Exhibit C was typed and that he was also not present when it was signed. This means that he did not see any of the workers that signed Exhibit C. There is also no evidence that any of the workers whose signature was allegedly procured reported the matter to any authority in Escravos. For the 3rd defendant, it pleaded in paragraph 14 (i) and (iii) that the Claimant allegedly misled mostly junior workers and actively collected their signature on blank sheet which was attached to Exhibit C. Again, no modicum of evidence was led to support this spurious criminal allegation. None of the workers who the Claimant allegedly misled and collected their signatures on a blank sheet was called to testify. Under cross examination, DW3 stated also that he was not present at the place where Exhibit C was typed and signed. It follows therefore that the Claimant’s testimony in paragraphs 26 and 27 of his witness statement on oath to the effect that all the workers who signed Exhibit C did so voluntarily and that they were adults was not challenged or controverted. The legal effect and consequence of the failure to cross examine the Claimant is that it is deemed admitted. The criminal allegations of the 1st defendant impugns on the character and person of the Claimant. It is submitted that it is not the law that an employee who is unlawfully or wrongfully dismissed is not entitled to award of general damages. The general principle that general damages is not awarded in master servant relationship admits to an exception. Again, the peculiar facts and circumstances of each case should be given due consideration by the Court. See Skye Bank Plc v. Akinpelu (supra).In Mobil Prod. (Nig) Unltd v. Udo(supra), it was held at page 102 lines 40 — 5 as follows: “The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of the employment was as a result of the failure to give the required notice or as a result of alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of’ the required notice. But if it is as a result of the latter then such determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice’(emphasis supplied) See also: (1) Ezekiel v. Westminster Dredging Ltd. (2000) 9 NWLR (Pt.672) 248 at 262. (2) British Airways v. Makanjuola (1993) 8 NWLR (Pt.311) 276. It is therefore submitted that the Claimant’s case falls within the principle stated in Mobil Prod. (Nig) Un/Id v. Udo, British Airways v. Makanjuola and Ezekiel v. Westminster Dredging Ltd that where the ground for wrongful dismissal “carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of requisite notice”. It submitted therefore, that the unproven spurious, devastating and damaging criminal allegation made against the Claimant is far beyond malpractice. Therefore the Claimant’s case comes under the exception to the general rule. It is submitted that where the law allows a party to recover damages in monetary form under distinct heads of claim which were pleaded and proved, it cannot amount to double compensation. In Mobil Producing Nig. Unltd v. Udo (supra), the Court of Appeal, affirmed the award of general damages of N2,000,000.00 (Two Million Naira) made by the trial Court after the sum of N4,368,500.00 was awarded as the respondent’s salary and entitlement up to the time of judgment. It is submitted that the argument that motive for termination of employment is irrelevant only applies where the employment was properly determined. SeeAjayi v. Texaco Nigeria Ltd (1987) 3 NWLR (Pt.61) 577 and Agbo v. CBN (1996) 10 NWLR (Pt.478) 370 at 377. The position of the law as espoused in these cases is that: where an employment has been properly terminated in terms of the contract of service, intention and motive of termination become irrelevant. The operative phrase is ‘properly terminated in terms of the contract of service”. It is beyond dispute, that the 1st Defendant deliberately ensured that the Claimant was constructively dismissed. The 1st Defendant knew that the 2nd and 3rd Defendants had no contractual substratum to set up its so called 3-man disciplinary panel. The 1st Defendant was also aware of the limit to which the Claimant may be disciplined as contained in his employment contract, but however, flagrantly disregarded its own contract with the Claimant ratified, adopted and acted on Exhibit D with a view to giving effect to the unlawful actions of the 2nd and 3rd defendants thus wrongfully dismissed the Claimant in the most humiliating manner. The conduct of the 1st Defendant can best be captured by the words of Orah, J.C.A (as he then was) in Steyr (Nig) Ltd. v. Gadzama (1995) 7 NWLR (Pt. 407) 305 at page 337 is paragraph H, where he stated thus: “I consider the manner of the termination of the appointment of the respondents as grossly irresponsible, wrongful and a naked Exhibition of power devoid of human milk and unwarranted humiliation of the respondents without reasonable cause.” It is submitted that an employer who deliberated ratified, acted and used falsehood to justify is the flagrant breach of the very foundation of his contract with his employee cannot escape liability. It is unconscionable for a party to deliberate inflict injury on another because of his erroneous belief that the law has prescribed inconsequential or trifle penalty for his malicious action. It is submitted that the law is not an ass to be driven on this reckless and dangerous road and equity will certainly not accept the above proposition. It is further submitted that the Claimant’s special damages claims and general damages claim are separate and distinct claims. The Claimant led evidence in separate proof of the heads of claims. It is contended therefore that both claims are mutually exclusive and one is tied to the other. The success of the claim of general damages is not therefore contingent on the special damages claim. I therefore urge Your Lordship to treat both claims separately, make specific findings on them and award appropriate sums in light of the evidence before the Court. The grant of both heads of claim would not amount to double compensation. CONCLUSION From the averments in the pleadings filed in this suit and evidence led during trial coupled with the principles of law enunciated in the arguments and submission as well as authorities cited, it is submitted that the Claimant has discharged the burden of proof on him on the balance of probabilities to entitle him to all the reliefs he is seeking against the 1st Defendant. In the final analysis, counsel urgedthe court to find and hold that: -The Claimant did not abandon work neither did he disappear from the work site at Escravos and that the 1st Defendant failed to lead evidence that it traced him after his alleged disappearance without success. -The 1st Defendant was aware of the unlawful disciplinary panel which tried the Claimant and it adopted, ratified and acted on the purported outcome of the disciplinary panel. -In the alternative that the 1st Defendant by adopting, ratifying and acting on Exhibit D, constructively dismissed the Claimant. -The Claimant is entitled to all his claims against the 1st Defendant. CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF HIS CASE AGAINST THE 2ND DEFENDANT Learned counsel formulated the following issues for determination: I. Given the facts and circumstances of this case, whether or not the setting up of the Disciplinary Panel by the 2nd and 3rd Defendants was an unlawful interference with the Claimant‘s employment contract with the Defendant and induced its breach. II. If the issue above is answered in the affirmative, whether the Claimant is entitled to damages from the Defendant. III. The 2nd Defendant having admitted that it issues receipt to its workers as proof that it remits taxes deducted from its workers salary to the appropriate government agency, whether this Honourable Court should grunt relief VII. ARGUMENT ISSUE ONE (1) Counsel submitted that given the entire circumstances of this case, the setting up of the disciplinary panel by the 2nd and 3rd Defendants was an unlawful interference with the Claimant’s employment contract and its proceedings and outcome induced the 1st Defendant to breach its contract with the Claimant. As stated above, the Claimant’s claim against the 2nd Defendant is rooted in TORT. A tort of interferencewith contract is committed where “C” a third party, by an unlawful act directly or indirectly prevents “A” from performing or discharging his contractual obligation to “B”. The tort is also committed where “C” directly or indirectly through his act makes “B” to break his contractual obligation with “A”. In both instances, “B” who suffers damages as a result of the action of “C” could bring an action against “C” in tort and claim damages. See generally chapter 18 of Winfield &Jolowicz on Tort, 15th Ed by W.V.H Rogers, London, Sweet & Maxwell Ltd. 1998. The operative phrase is a third party. It does not matter in this tort that the third party is not a stranger to the contracting parties. What matters is that the third party is not a party to the bilateral contract between the parties (as in this case between the Claimant and the 1st Defendant). This position of law on the tort of interference with contract was long settled in the case of Bowen v. Hall (1881) 6 Q.B.D. 333. The tort also covers situations where a third party uses threat and/or intimidation to hinder the performance of a contract between the contracting parties. All a Claimant claiming under this head of tort needs to show is that the defendant through unlawful means directly or indirectly interfered with his contract with another and the interference resulted in breach of the contract. The Claimant may also show that he suffered damage as a result of “C’s” action. In Sparkling v. UBN Nig. Ltd (2001) 34 WRN 1 the Supreme Court per Ogundare JSC at page 17 held: “The tort of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another”. Applying this principle to the case at hand, I now proceed to examine the ingredients whether they are present. To succeed under the tort of unlawful interference with contract, the Claimant must prove: (a) That a contract exists between him and the Defendant, and (b) That the 2nd Defendant unlawfully interfered with the existing contractual rights and obligation between the Claimant and the 1st Defendant. The Claimant’s Employment Contract with the 1st Defendant (Exhibits A and B) The existence of contractual agreement between the Claimant and the 1st Defendant is not in dispute in this case. Counsel referred to Exhibits A and B. It is common ground in this case that the terms and conditions regulating the Claimant’s employment are in writing. As noted in paragraph 1.5 above, from the uncontroverted fact in paragraph 12 of the Claimant’s Amended Statement of Facts, the 2nd defendant did not lead any evidence on its defence. It is submitted therefore, that the 2nd defendant abandoned its defence in this case by not calling any witness to testify. The legal effect and consequence of abandoning its defence is that the 2nd defendant admitted the Claimant’s claims against it. However, for whatever it is worth, reference will be made to the testimony of DW2 and the Exhibits tendered for completeness of record. DW2 and DW3 affirmed during cross examination that the Claimant’s contract is in writing. It is also common ground that the Claimant’s rights and obligations as it relates to disciplinary measures and procedures are equally in writing. DW2 specifically stated during cross examination that ‘the Project Labour Agreement (PLA), Exhibit B governs the Claimant‘s contractual rights and obligation. DW3 also stated under cross — examination that “he believes that the Claimant’s contractual rights and obligations are in writing. The parties to Exhibit A are clear and unambiguous. Exhibit A is a bilateral contract between the Claimant and the 1stdefendant. Exhibits A and B do not by any stretch of imagination contemplate the 2nd Defendant herein as a party for the purpose of enforcing its rights and obligations nay taking disciplinary action against the Claimant. It will be a misconception to argue that DW2 (a confused employee of the 3rd Defendant) whose job description is that he is an employee of the 3rd Defendant responsible for human relations issues between the 2nd Defendant and 1stDefendant is staff of the 2nd Defendant. It is submitted that it will be bizarre and total misconception for an argument to be made that DW2 is a staff of the 2nd defendant or that when he infracts the terms and conditions of his employment contract with the 3rd defendant, the 2nd Defendant should take disciplinary action against him. What is good for the goose is also good for the gander. If the 2nd Defendant cannot take disciplinary actions against DW2, it follows that the 2nd Defendant cannot arrogate to itself disciplinary powers over the Claimant. DW2 and DW3 who purport to be industrial relations officers ought to know the import of Exhibit A. The 2nd defendant cannot in law run away from its unlawful actions. There is nowhere in Exhibits A and B that the 2nd Defendant is vested with disciplinary power over the Claimant. The case here can be likened to a situation where an officer in the Nigerian army in joint security patrol with officers of the Nigeria Police Force commits an offence or breaches the patrol regulations and the police set up an orderly room trial meant specifically for its officer, tried the army officer and disciplined him. In Mobil Prod. (Nig) Unltd. V. Udo (200S) 26 WRN 53, the respondent an employee (a driver) of the appellant who went through training at the Police Training School Calabar to perform his job effectively, was tried by the police by way of orderly room trial. Sequel to the trial, the respondent was suspended from duty by the appellant without pay. The Court of Appeal held that the fact that the respondent wore police uniform and received salary circuitously through the police did not make him a police officer to warrant the orderly room trial. From the facts of the present case and the actions of the 2nd defendant against the Claimant are akin to the role the police played in the case cited. The Unlawfulness of the so called Disciplinary Panel The 2nd Defendant did not controvert the averments in paragraphs 12, 13, and 18 of the Claimant’s Amended Statement of Facts, whether specifically or otherwise that it set up the unlawful disciplinary panel with the 3rd defendant. The legal effect and consequence of failure to deny or controvert this material averment is that it is deemed admitted. See section 123 of the Evidence Act. It is therefore submitted that argument in paragraph C.I(c) of the 2nd Defendants written address that “It is the 3rd Defendant who set up the disciplinary that gave the recommendation”, is not only misleading but unsupportable and not borne out of the pleadings and evidence before the Honourable Court. It also shows the untidiness and confusion in the house of the 2nd Defendant. It is ironical that DW2, an employee of the 3rd Defendant testified for the 2nd Defendant. The 2nd Defendant is therefore estopped from distancing itself from its unholy alliance with the 3rd defendant and effect of the unlawful disciplinary panel. It is further submitted that the 2nd Defendant cannot approbate and reprobate. It is crystal clear from Exhibits A and B who has disciplinary power over the Claimant. It follows therefore that the submission in the paragraph F.II of the 2nd defendant’s written address that there is no evidence to show that the disciplinary panel was constituted at the instance of the 2nd defendant is totally unsupportable and with respect misconceived. It is settled law that facts admitted need not be proved. It is also settled law that parties are bound by their pleadings. It is equally trite law that parties and the Court are bound by pleadings and evidence. See Skye Bank Plc v. Akinpelu (2010) All FWLR (Pt. 526) 460. DW2 and DW3 having admitted that the Claimant’s contractual rights and obligations are in writing, failed to tender any documentary evidence which recognized and gave legitimacy to the unlawful disciplinary panel. Having failed woefully to tender any written document which empowered the 2nd and 3rd defendant to set up the so called disciplinary panel, the 2nd defendant is estopped from seeking to justify its actions. In the absence of any document which empowered the 2nd and 3rd defendants to set up the unlawful disciplinary panel which meted extra contractual and mandatory punishments on the Claimant, the only finding and conclusion that this Honourable Court can make is that the setting up of the disciplinary panel is an unlawful interference with the Claimant’s contract. An illegal or void act cannot give rise to legality as the 2nd defendant cannot place something on nothing and expect it to stand. See Macfoy v. UAC Ltd (1962) AC 150. It is therefore strongly submitted that the disciplinary panel is unlawful and its proceedings and outcome amounted to nullity. It is therefore submitted, that the 2nd defendant in conjunction with its JOINT TORTFEASOR, THE 3RD DEFENDANT by arrogating the discipline of the Claimant to themselves interfered unlawfully with the Claimant’s employment contract with the 1st defendant. There can be no better case of unlawful interference than the undisputed facts of this case. The disciplinary panel therefore is the unlawful means through which the 2nd defendant not only interfered with Claimant’s contract but also the vehicle for inducing the breach of the contract. It is also submitted that the argument contained in paragraph F.I1 of the 2nd defendant’s written address that the “Exhibit “C” is an unlawful act against the 2nd defendant” flies in the face of undisputed evidence before this Honourable Court. The Claimant pleaded facts and led evidence that Exhibit C was sent on the direction of Mr. M.S Kim, the Assistant Administration Manager of the 2nd Defendant. Your Lordship is respectfully referred to paragraphs 10 and 11 of the Claimant’s Amended Statement of Facts and paragraphs 10 and 11 of the Claimant’s written statement on oath. The Claimant was not cross examined by the 2nd Defendant’s Counsel on this evidence. The legal effect of the failure of the 2nd defendant’s Counsel to cross examine the Claimant is that it is deemed admitted. See C.E.C.T.C.S V. Ikot (2001) 23 W.R.N 142. It is further submitted that the 2nd Defendant is estopped from raising any issue out of Exhibit C written and sent on the direction of its employee. It is trite law that what is permitted or lawful cannot give rise liability. See. Michelin (Nig) Ltd. v. Alaribe (2010) All FWLR (Pt. 543) 1998. It is instructive to note that the 2nd defendant did not plead or lead evidence that Mr. M.S Kim lacked the authority to direct the Claimant and other affected workers to send Exhibit C to the 3rd Defendant. The hollowness of the 2nd defendant’s submission is further compounded by the fact that Mr. M.S Kim was not called to give evidence in the case. It is also instructive that the same Mr. M.S Kim signed Exhibit 0. It is common ground that by virtue of the relationship between the 1st and 2nd defendants, it is the 2nd defendant that pays the spillover allowance. It is therefore submitted that the argument in paragraph E.III of the 2nddefendant’s written address the Claimant has no contractual ties with the 2nddefendant to allow him to act on Mr. M.S Kim’s instruction is not only unsupportable but flies in the face of admitted facts in this case. Assuming without conceding that the Claimant failed to comply with Exhibit P, it is submitted that it is his Union that would have taken disciplinary steps against him not the 2nd and 3rd Defendant. However, the Claimant under cross examination from the 2nd Defendant’s Counsel stated that when the spillover issue arose he reported the matter verbally to Mr. Jason Onemokpe the Vice Chairman of NUCECFWW and Mr. Jason Onernokpe told him to act in accordance with Mr. M.S Kim’s directive. There is no record before Your Lordship to suggest the Claimant was queried by NUCECFWW. It should also be noted that the Claimant stated that he was not aware of Exhibit P. The argument in paragraph E.Ill of the 2nd Defendant’s written address that “The Claimant had not established by way of evidence that spillover allowance was a contractual right, neither was his agitation for payment of spillover allowance contractual... with respect is not only fallacious but laughable. The short answer to this argument is that it is inconceivable that the Claimant would have been entitled to spillover allowance without Exhibit A. The spillover allowance is a right flowing from Exhibit A. If the Claimant was not entitled to it, why was he paid? Again, if the Claimant was not employed by the 1st defendant would he have been entitled to it? The substratum of the Claimant’s entitlement to the spillover allowance is Exhibit A. Breach of the Claimant’s employment contract by the 1st defendant. It is settled law that implied in every contract of employment is mutual trust and confidence that an employer will not, without reasonable or proper cause, conduct himself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. See Scally v. Southern Health and Social Services Board 119921 1 AC 294 at 307 para B.This point was driven home in the Judgment of Lord Steyn in Malik v. BCC1 1981 AC 20 at 45, wherein he held that a breach of the implied term of mutual trust and confidence extends to “any conduct of the employer likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. (emphasis supplied) Where the mutual trust and confidence is broken, the injured party can elect to treat the contract as repudiated by the offending party. In Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174 at page 188 paragraphs D to E, the Supreme Court held: “Where the master has purported to dismiss the servant, even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. A wrongful dismissal in complete disregard of the terms of the contract of service is obviously a repudiation by the master and the servant’s remedy is in action for damages only”. In Ilodibia v. N.C.C Ltd (supra), the Supreme Court upheld the finding of the trial Court that the indefinite suspension of the plaintiff and placement on half salary against the provision of his employment contract was wrongful and amounted to constructive dismissal. The crux of Exhibit A is that the Claimant would render services while the 1st Defendant was under obligation to pay him agreed salary and allowances. Any conduct or act on the part of the 1st Defendant that impedes or vitiates the agreed rights and obligations constitutes a breach of Exhibit A.Exhibits A and B contain the terms and conditions of the Claimant’s employment contract with the 1st Defendant. It is settled law that parties are bound by their contract. Applying the principle of constructive dismissal to the facts this case, Your Lordship is respectfully invited to the following undisputed facts: (1) The Claimant was suspended for four weeks as against a maximum of 10 days provided by Article 30.1.3 of Exhibit B. (2) The Claimant was mandated to write unreserved letter of apology to the 1st defendant and also an undertaking to be of good behavior signed by the junior workers’ union executive. (3) The Claimant was not booked back to the project site after the disciplinary hearing of 9/2/2011 (4) The Claimant was not paid his salary and allowances from February 2011 to the end of the duration of Exhibit A. (5) The 1st Defendant ratified, adopted, acted on Exhibit D and justified none booking the Claimant back to the project site and refusal to pay his salary and allowances on the purported findings and verdict of the disciplinary panel. See Exhibit M and paragraphs 4 (d), (g) and (h) of the 1st defendant’s statement of defence. The items (1) to (5) above are some of the undisputed terms and conditions in Exhibits A and B breached by the 1st Defendant. The 1st Defendant failed to provide documentary evidence where the above punishments are provided for in the Claimant’s contract. It should be noted that even though Article 29.7 p) of Exhibit B incorporates Exhibit T, it is only Article 30 of Exhibit B that contains agreed disciplinary measures between the Claimant and the 1st Defendant. It should also be noted that the 1st Defendant ratified, adopted and acted on the unlawful content of Exhibit D which was given to the Claimant by its staff, Bartholomew Okene. It is also submitted that assuming without conceding that the Claimant violated Exhibit T, by the provision of Article 30.7 of Exhibit B, he would have been dismissed immediately and not suspended. By the provision of Article 32 of Exhibit B, its duration is for twenty four months i.e. from 1/10/2010 to 30/9/2012. There is no evidence that Exhibit B was reviewed at all or by mutual consent of the parties that executed it. lt follows therefore that the punishments meted on the Claimant are outside what he agreed to and as such damaged the very foundation of his contract with the 1st Defendant. A contract need not be expressly terminated before it is said to have been breached.With the legions of breaches of the Claimant’s contract by the 1st Defendant itemized paragraph 3.18 above, one is at sea as to the submission in paragraph Elof the 2nd defendant’s written address that the Claimant failed to discharge the burden on him and that the 1st Defendant breached his employment contract. This submission made on behalf of a tortfeasor with respect, buttresses the fact that the 1stand 2nd defendants misconceived the Claimant’s case against them. It is equally hilarious for a submission to be made that Exhibit U was the first opportunity presented by the claimant to the 1st defendant to join issues with her on the issue of payment of remuneration. (See paragraph E.III of the 2nd Defendant’s written address). This submission cannot hold waters in face of undisputed facts before Your Lordship. The 1st defendant withheld the Claimant’s salary and entitlements and refused to book him back to site as a result of Exhibit D sent to it by the 2nd defendant. From February 2011 till date, the Claimant was not paid and the 2nd defendant is saying that Exhibit U, dated 12/7/2011 woke the 1st Defendant from its slumber. Indeed the 1st Defendant must have been in a very deep corporate slumber with its eyes opened when its representatives are taking daily record of its workers at the project site in Escravos. It is therefore submitted that the argument inparagraph C.I (d) of the 2nd Defendant’s written address that “There was no correspondencefrom the defendant to the Claimant to show that he was under suspension or that he has been terminated, to suggest that the 1st Defendant was induced by the 2nd defendant”, is not only with respect misleading but does not have evidential support to stand on and as such cannot be an unchallenged or uncontroverted fact. Equally amazing is the submission that Claimant abandoned his place of work and disappeared contained also in paragraph E.II1 of the 2nd Defendant’s written address. The 2nd Defendant on whose behalf this submission is made did not deny the averments in paragraphs 10. 11, 13 and 14 of the Claimant’s Amended Statement of Defence. It is submitted that the 2nd defendant having conceded that it booked the Claimant out of the project site on 8/2/2011 cannot approbate and reprobate. Given the fact that the project site is a closed camp where ingress and egress cannot be made without the permission of the defendants, the Claimant must be a magician to disappear. It is ironical that the 2nd Defendant did not plead or lead evidence that a search was conducted or a report made to security agencies after the purported Claimant’s disappearance. Having established that the 2nd Defendant unlawfully interfered with the Claimant’s contract, the next point to address is whether the unlawful interference induced the breach of the Claimant’s contract. Evidence of Inducement of breach of the Claimant’s contract by the actions of the 2nd Defendant. It is submitted strongly that taking into account the entire circumstances of this case, the 2nd Defendant’s actions induced the breach of the Claimant’s contract by the 1st Defendant. Inducement of breach of contract is a TORT which gives the injured party claim for damages. This tort is committed where a third party’s unlawful act makes it impossible for contracting parties to perform their obligations or exercise their rights under a contract. Nigerian Courts have long recognized and applied the tort of inducement of breach of contract and awarded damages. In 1955, the West Africa Court of Appeal (WACA) recognized this tort in The British French Bank v. Owodunni (1956) N.S.C.C, 3. The tort was again recognized and applied by the Federal Supreme Court in Randle v. Nottidge (1956) N.S.C.C, 88. The court in that case held the appellant liable to the respondent for damages for inducing breach of contractual agreement. On whether a third party can be held liable for inducing breach of contract, the Court of Appeal, Lagos Division, per Rhodes Vivour, JCA (as he then was) in Nissan (Nig) Ltd v. Yoganathan (2010) 4 NWLR (Pt. 1183) 135 at pages 153— 154, paras. H-A, held as follows: “Where the 3rd party knowingly and without justification facilitated or intentionally induced the breach of the contract between contracting parties, he is liable of inducing or procuring breach of contract.” In a concurring judgment, Mukthar, J.C.A,(as he then was) at page 158, paras. B-C, held: “It is an actionable wrong to flagrantly facilitate the breach of contractual obligation to the detriment of the appellant simply because the 2nd respondent was not privy to it. It is pertinent that the alleged deliberate violation of contractual term by the two respondents occasioned an actionable wrong, if proved or undenied, and the liability for the consequential damages suffered thereby is, of course joint. The basis for the imputation made in the statement of claim about the knowledge of the appellant’s contractual right and flagrant violation thereof by both respondents.” It is not in dispute that the Claimant prior to the setting up of the unlawful disciplinary panel had a smooth working relationship with the 1st Defendant. The following facts are also not in dispute in this case: (a) That the Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the 2nd and 3rd Defendants and summoned to the office of the 3rd defendant in Effurun, Delta State to face an illegal disciplinary panel set by the 2nd and 3rd Defendants. (b) As at 8/2/2011, the Claimant was working at the project site as an employee of the 1st Defendant not an employee of the 2nd and 3rd Defendants. (c) The Claimant was not booked back to the project site after the unlawful disciplinary panel hearing. (d) The Claimant has not been paid his salaries and allowances by the 1st Defendant since the unlawful disciplinary hearing till date. The Import of Exhibit D, the vehicle through which the 2nd Defendant conveyed the unlawful extra contractual punishments meted on the Claimant by the unlawful disciplinary panel Exhibit D was sent by the notorious M.S Kim. the Administration Manager of the 2nd defendant to the 1st Defendant. Exhibit D is unambiguously written in plain English language. I reproduce verbatim the first three lines of Exhibit D for clarity: “Dear Owelle, (Owelle is the 1st defendant in this suit) Please refer to below list for result of the disciplinary panel held on Feb 8th. The letter of undertaking and letter of apology must be handed over to DNL (acronym for the 2nd defendant) admin prior to any booking through your office in warri” (emphasis supplied) Above is the content of Exhibit D. From the wording of the third line, a mandatory requirement was placed on the 1st Defendant that the unlawful disciplinary action must be carried out before the 1st Defendant can book the Claimant back to Escravos. In the face of unambiguous language of Exhibit D. It is surprising therefore, that a submission can be made on behalf of the 2nd Defendant in the 21 paragraph of page 7 of it written address that “The said document is just an e-mail print out of a mere notification of the disciplinary panel report to the 2nd defendant. It never showed the 2nd defendant as the originator or maker of the recommendation contained therein. It is equally’ misleading with respect for a further submission to be made on behalf of the 2nd defendant that ‘My lord, Exhibit “D” neither added or removed from the recommendation of the panel dated 9th day of February 2011 (Exhibit N). Exhibit D not only added to the unlawful Exhibit N but introduced a fresh mandatory requirement not stated in Exhibit N. For the purposes of clarity, the second (ii) unlawful recommendation against the Claimant in Exhibit N is: “Upon resumption to produce a letter of undertaking to be of good behavior duly attested to by the Secretary of NUCECFWW — DNL Branch “, whereas the third line of Exhibit D reads: “The letter of undertaking and letter of apology must be handed over to DNL admin prior to any booking through your office in warri “. By Exhibit N, the unlawful recommendation is that the Claimant should produce the letter of undertaking and letter of apology upon resumption. This means when he gets to Escravos. In Exhibit D, the 2nd Defendant made it unlawfully mandatory that the said letters must be handed over before the 1st defendant can book the Claimant back to site. Meaning the letter must be submitted in Effurun and not Escravos. It is submitted that the 2nd line of Exhibit D makes it abundantly clear that the 1st Defendant was aware of the unlawful disciplinary panel and that the 2nd Defendant was fully involved in it. It is further submitted that Exhibit D demonstrates the influence of the 2nd and 3rd defendants especially the 2nd Defendant, have over the 1st Defendant. It is common ground that the lstDefendant is a sub-contractor to the 2nd defendant and the 2nd defendant a contractor to the 3rd defendant. Your Lordship is respectfully referred to the uncontroverted paragraphs 2and 3of the Amended Statement of Claim. From the evidence before Your Lordship, it is abundantly clear that the unlawful Exhibits N and D concocted by the 2nd and 3rd defendants triggered off the deprivation of the rights and obligations of the Claimant contained in Exhibits A and B. The Claimant was bundled out of Escravos on 8/2/2011 to face an unlawful disciplinary panel set up by the 2nd and 3rd defendants with the knowledge of the 1st defendant. The disciplinary panel imposed unlawful punishments which are totally outside Exhibits A and B on the Claimant and he was not booked back to work subsequently. It is submitted that there cannot be a better case of inducement of breach of contract than the case before Your Lordship. All the ingredients to establish that the 2nd Defendant induced the breach of the Claimant’s contract have been proved on the balance of probabilities,it does not lie in the mouth of the 1st Defendant to say through DW1 that the 2nd defendant (A TORTFEASOR) did not ask the 1st Defendant to do anything against the Claimant. It is the duty of this Honourable Court to draw its own conclusion from the facts, evidence and entire circumstances of this case whether the actions of the 2nd Defendant induced the 1st Defendant to breach its contract with the Claimant. Finally, it is respectfully submitted that the 2nd defendant knowing, intentionally facilitated and ensured that the 1st defendant breached its bilateral contract with the Claimant. From the evidence before Your Lordship, the Claimant established on the balance of probabilities that the 2nd defendant induced the 1st Defendant to breach Exhibit A. ISSUE TWO (2) If issue one is answered in the affirmative, whether the Claimant is entitled to damages from the 2nd Defendant. It is submitted that where the tort of unlawful interference of contract as well as inducement of breach of contract is proved, the natural consequence is that damages will be awarded to the injured party. See Randle v. Nottidge (supra,) and Nissan (Nig) Ltd v. Yoganathan (supra,). The Claimant is claiming a modest sum of N5,000,000.00 (Five Million Naira) general damages against the 2nd Defendant for the tort of inducement of breach of his contract. Having established before Your Lordship that the 2 defendant interfered with and induced the breach of his contract, it is submitted the Claimant is entitled to damages. It is settled law that: “damages are pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of lump sum awarded at the time, unconditionally and generally’. See Agbanelo v. U.B.N (2000)23 WRN 1 at page 16 paragraphs 10-15. It is undisputed that the Claimant suffered damage as a result of the unlawful acts of the 2nd Defendant. From the pleadings and evidence in this case the following facts are undisputable, uncontroverted and are expressly or deemed admitted: (a) Prior to the setting up of the unlawful disciplinary panel on 8/2/2011 the Claimant had a smooth relationship with the 1st Defendant and had worked at the EGTL project since November 2008. Reference made to paragraph 5 of the Claimant’s Amended Statement of Claim and paragraph 5 of his written statement on oath, which are not controverted. (b) The Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the 2nd and 3rd Defendants and summoned to appear before an unlawful disciplinary panel set up by the 2nd and 3rd defendants at the 3rd defendant’s office in Effurun, Delta State. (c) As at 8/2/2011, the Claimant was working at the project site for the 1st Defendant in furtherance of his obligation under Exhibit A. (d) The Claimant was not booked back to the project site after the phantom disciplinary hearing. (e) The Claimant has not been paid by the 1st Defendant since the purported illegal disciplinary hearing till date. (f) The unfounded and unproven criminal allegation of fraudulently procuring the signature (which must be proved beyond reasonable doubt) of workers who signed Exhibit D is damaging to the Claimant’s job prospect and also an attack on his person. The above are some of the damage or injuries suffered by the Claimant as a result of the unlawful actions of the 2nd Defendant. The unlawful actions of the 2nd Defendant made it impossible for the Claimant to fulfill his obligations, enjoy his rights and benefits under Exhibits A and B. The natural consequence of the 2nd Defendant’s unlawful action did not only prevent the Claimant from earning his salary and entitlements but also made him to carry a burden of humiliation and agony of being unceremoniously and ignominiously deprived of the dignity of enjoying the rights and benefits conferred by Exhibit A. The Claimant having established in the alternative that the 1st Defendant constructively dismissed him and that the dismissal was wrongful, it is abundantly clear that the actions of the 2nd Defendant also led to the Claimant been constructively dismissed by the 1stDefendant. In determining the quantum of damages to be awarded in this case, it must be borne in mind always that the claim against the 2nd defendant is in TORT. It is respectfully submitted that Your Lordship should take into account the factors enumerated in paragraph 4.2 above. There is no dispute that the Claimant suffered and is still suffering pecuniary losses as a result of the inducement of the breach of his employment contract. The 2nd Defendant knew that it had no contractual substratum to set up the illegal disciplinary panel, it was also aware of the limit to which the Claimant may be disciplined as contained in his employment contract, but however, used its position to induce the breach of the Claimant’s contract in the most wicked and humiliating manner. The 2nd defendant equally ensured it smuggled a new unlawful mandatory condition into Exhibit D (which is at variance with Exhibit N) to ensure that the Claimant is deprived of the benefits of Exhibit A. The conduct of the 2nd Defendant can best be captured by the words of Orah, J.C.A in Steyr (Nig) Ltd. v. Gadzama (1995) 7 NWLR (Pt. 407) 305 at page 337 paragraph H. where he stated thus: “I consider the manner of the termination of the appointment of the respondents as grossly irresponsible, wrongful and a naked Exhibition of power devoid of human milk and unwarranted humiliation of the respondents without reasonable cause.” The 2nd Defendant also made spurious and unproven criminal allegation of fraudulent procurement of signatures against the Claimant. Imputation of fraud is a very serious offence which need to be pleaded with particulars and must be proved beyond reasonable doubt. See WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. This Honourable Court should also take into account steps taken by the Claimant to resolve this matter with the 2nd Defendant amicably before filing this suit. I respectfully urge Your Lordship to refer to Exhibit G. The 2nd defendant ignored Exhibit G. In assessing the quantum of damages to be awarded in this case, it must be borne in mind always that the claim against the 2nd defendant is rooted in TORT and not in CONTRACT and as such the principle applicable in award of damages in tort should be applied. It is submitted that from the facts of this case, the Claimant is not only entitled to damages but substantial damages. I respectfully urge Your Lordship to take into consideration the entire facts of this case in the assessment of damages to be awarded in favour of the Claimant. Finally, Your Lordship is respectfully urged to award the full sum claimed by the Claimant against the 2nd Defendant. ISSUE THREE (3) The 2nd Defendant having admitted that it issues receipt to its workers as proof that it remits taxes deducted from its workers salary to the appropriate government agency, whether this Honourable Court should grant relief VII. It is submitted that this relief should be granted on admission of the 2nd Defendant. The Claimant is not demanding for a specific document but proof that the taxes deducted from his salaries during the period he worked for the 2nd defendant was remitted to the appropriate government agency. The 2nd Defendant in paragraph 24 of its Statement of Defence as follows: The defendant avers that because of the number of workers involved in the project, the government tax office cannot issue individual receipt to workers on payment of income insteada joint receipt is issued to the defendant, who then issues her receipt to the individual workers.” (emphasis supplied). The Claimant’s demand in relief VII is not based on the Personal Income Tax Act, 2004. What the Claimant is seeking for is a mandatory order of this Honourable Court to compel the 2nd Defendant to provide him with proof that the 2nd Defendant remitted taxes deducted from his salaries to the government. The 2nd defendant in its defence has stated that it issues “her receipt to the individual workers”. It is submitted therefore that this Honourable Court should grant relief VII on the express admission of the 2’ defendant. It is settled law that what is admitted need not be proved. This Honourable Court is respectfully urged to mandate the 2nd Defendant to issue the receipt which it has admitted is issues to its individual workers to the Claimant. CONCLUSION From the averments in the pleadings filed in this suit and evidence led during trial coupled with the principles of law enunciated in the arguments and submission as well as authorities cited, it is submitted that the Claimant has discharged the burden of proof on the balance of probabilities to entitle him to all the reliefs sought against the 2nd Defendant. In the final analysis, he urged the court to find and hold that: i. The setting up of the Disciplinary Panel of 8/2/2011 by the 2nd and 3rd Defendants was an unlawful interference with the Claimant’s employment contract with the 1st Defendant. ii. The setting up of the disciplinary panel of 8/2/2011 by the 2nd and 3rd Defendants, its proceedings and outcome induced the breach of Claimant’s employment contract with the 1st Defendant. iii. That content of Exhibit D which is in mandatory language induced the defendant not to honour its obligation with the Claimant under their bilateral contract (Exhibit A) iv. The action of the 2nd Defendant resulted in and is still causing the Claimant to suffer. v. The Claimant is entitled to the full amount claimed as damages from the 2nd defendant. vi. The Claimant is entitled to relief VII on the basis of admission of the 2nd Defendant. CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF HIS CASE AGAINST THE 3RD DEFENDANT. Counsel formulated the following issues for determination: I.Given the facts and circumstances of this case, whether or not the setting up of the Disciplinary Panel by the 2nd and 3rd Defendants was an unlawful interference with the Claimant‘s employment contract. II.Whether or not the recommendations of the disciplinary panelinduced the 1st Defendant to breach its contract with the Claimant. III.If issues one and two are answered in the affirmative, whether the Claimant is entitled to damages. ISSUE ONE (1) Given the facts and circumstances of this case, whether or not the setting up of the Disciplinary Panel by the 2nd and 3rd Defendants was an unlawful interference with the Claimant’s employment contract. Counsel submitted that given the entire circumstances of this case, the setting up of the disciplinary panel by the 2nd and 3rd Defendants which was composed mainly of employees of the 3rd defendant was an unlawful interference with the Claimant’s employment contract and its proceedings and outcome induced the Defendant to breach its contract with the Claimant. As stated above, the Claimant’s claim against the 3rd Defendant is rooted in TORT. A tort of interference of breach of contract is committed where “C” a third party, by an unlawful act directly or indirectly prevents “A” from performing or discharging his contractual obligation to “B”. The tort is also committed where “C” directly or indirectly through his act makes “B” to break his contractual obligation with “A”. In both instances, “B” who suffers damages as a result of the action of “C” could bring an action against “C” in tort and claim damages. See generally chapter 18 of Winfield &Jolowicz on Tort, 15thEd by W.V.H Rogers, London, Sweet & Maxwell Ltd. 1998. The operative phrase is a third party. It does not matter in this tort that the third party is not a stranger to the contracting parties. What matters is that the third party is not a party to the bilateral contract between the parties (as in this case between the Claimant and the 1st Defendant). This position of law on the tort of interference with contract was long settled in the case of Bowen v. Hall (1881) 6 Q.B.D. 333. The tort also covers situations where a third party uses threat and/or intimidation to hinder the performance of a contract between the contracting parties. All a Claimant claiming under this head of tort needs to show is that the defendant through unlawful means directly or indirectly interfered with his contract with another and the interference resulted in breach of the contract. The Claimant may also show that he suffered damages as a result of “C’s” action. In Sparkling v. UBN Nig. Ltd (2001) 34 WRN 1 the Supreme Court per Ogundare JSC (as he then was) at page 17 held: “The tort of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another”. Applying this principle to the case at hand, I now proceed to examine the ingredients whether they are present. To succeed under the tort of unlawful interference with contract, the Claimant must prove: (a)That a contract exists between him and the 1st Defendant, and (b) That the 3rd Defendant unlawfully interfered with the existing contractual rights and obligations between the Claimant and the 1st Defendant. The Claimant’s Employment Contract with the 1st Defendant (Exhibit A) The existence of contractual agreement between the Claimant and the 1st Defendant is not in dispute in this case. Your Lordship is respectfully referred to Exhibit A. It is common ground in this case that the terms and conditions regulating the Claimant’s employment are in writing. The 1st defendant is a separate and distinct company from the 3rd defendant. The 1st defendant is an independent contractor to the 2nddefendant. The foregoing facts were acknowledged by the 1st defendant in paragraph 3 of its statement of defence as follows: “In answer to paragraph 5 of the Statement of Facts, the Defendant states that Owelle Global Services is not and have never been a subsidiary company to any company including (sic) distinct from itself and have no contractual agreement of transfer of employment from other company to it whatsoever. 1st Defendant employ her staff directly and not depended on other company. “(emphasis supplied) DW2 and DW3 affirmed during cross examination that the Claimant’s contract is in writing. It is also common ground that the Claimant’s rights and obligations as it relates to disciplinary measures and procedures are equally in writing. DW2 specifically stated during cross examination that “the Project Labour Agreement (PLA,), Exhibit B governs the Claimant‘s contractual rights and obligations. DW3 also stated under cross — examination that “he believes that the Claimant‘s contractual rights and obligations are in writing”. The parties to Exhibit A are clear and unambiguous. Exhibit A is a bilateral contract between the Claimant and the 1st defendant. There is no dispute that Exhibit A incorporates Exhibit B. Exhibit A does not by any stretch of imagination contemplate the 3rd Defendant herein as a party for the purpose of enforcing the rights and obligations therein especially taking disciplinary action against the Claimant. It will be a misconception to argue that that DW2 (a obviously confused employee of the 3rd Defendant) whose job description is that he is an employee of the Defendant responsible for human relations issues between the 2nd Defendant and 3rd Defendant, is staff of the 2nd Defendant. It is submitted that it will be bizarre and total misconception for an argument to be made that DW2 is a staff of the 2nd defendant or that when he infracts the terms and conditions of his employment contract with the 3rd defendant, the 2nd Defendant should take disciplinary action against him. What is good for the goose is also good for the gander. If the 2nd Defendant cannot take disciplinary actions against DW2, it follows that the 3rd Defendant cannot arrogate to itself disciplinary powers over the Claimant. DW2 and DW3 (both staff of the 3rd defendant) who purport to be industrial relations officers ought to know the import of Exhibit A. The 3rd defendant cannot in law run away from the legal effect and consequences of its unlawful actions. There is nowhere in Exhibits A and B that the 3rd Defendant is vested with disciplinary power over the Claimant. The case here can be likened to a situation where an officer in the Nigerian army in joint security patrol with officers of the Nigeria Police Force commits an offence or breaches the patrol regulations and the police set up an orderly room trial meant specifically for its officer, tried the army officer and disciplined him. In Mobil Prod. (Nig) Unltd. V. Udo (2008) 36 WRN 53, the respondent an employee (a driver) of the appellant who went through training at the Police Training School Calabar to perform his job effectively, was tried by the police by way of orderly room trial. Sequel to the trial, the respondent was suspended from duty by the appellant without pay. The Court of Appeal held that the fact that the respondent wore police uniform and received salary circuitously through the police did not make him a police offer to warrant the orderly room trial. From the facts of the present case and the actions of the 3rd defendant against the Claimant are akin to the role the police played in the case cited. The Unlawfulness of the so called Disciplinary Panel The 3rd Defendant did not controvert the averments in paragraphs 12, 13, and 18 of the Claimant’s Amended Statement of Facts, whether specifically or otherwise that it set up the unlawful disciplinary panel in collaboration with its JOINT TORTFEASOR, the defendant. The legal effect and consequence of failure to deny or controvert this material averment is that it is deemed admitted. See section 123 of the Evidence Act. The 3rd Defendant admitted in paragraph 7 of its statement of defence that it set up the disciplinary panel. It is also settled law that parties are bound by their pleadings. It is equally trite law that parties and the Court are bound by pleadings and evidence. See Skye Bank Plc v. Akinpelu (2010) All FWLR (Pt. 526) 460. There is no provision in Exhibits A and B that recognize the purported disciplinary panel, its composition and/or power to impose alleged punishments/recommendations on the Claimant. The 3rd Defendant in its pleadings, evidence and its final written address failed to draw the attention of this Honourable Court to any provision of Exhibits A and B that sanctioned its unlawful actions. It is not in dispute that the Claimant’s rights and obligations with the 1st Defendant are in writing. DW2 and DW3 admitted under cross examination that the Claimant’s contractual rights and obligations are in writing. The 3rd defendant failed to tender any documentary evidence which recognized and gave legitimacy to the unlawful disciplinary panel. Having failed woefully to tender any written document which empowered it to set up the so called disciplinary panel, it is submitted that the 3rd defendant is estopped from seeking to justify its actions. In the absence of any document which empowered the 3rd defendants to set up the disciplinary panel which meted extra contractual and mandatory punishments on the Claimant, the only finding and conclusion that this Honourable Court can make is that the setting up of the disciplinary panel is an unlawful interference with the Claimant’s contract. An unlawful, illegal or void act cannot give rise to legality or justification. It is submitted that the 3rd defendant cannot place something on nothing and expect it to stand. See Macfoy v. UAC Ltd (1962) AC 150. It is therefore strongly submitted that the disciplinary panel is unlawful and its proceedings and outcome amounted to illegality and no defence of justification can avail the 3rd defendant. It is therefore submitted, that the 3rd defendant acted in concert with its JOINT TORTFEASOR, THE 2ND DEFENDANT when it arrogated the discipline of the Claimant to itself and thereby interfered unlawfully with the Claimant’s employment contract with the 1st defendant. There can be no better case of unlawful interference than the undisputed facts of this case. The disciplinary panel and its extra contractual recommendations therefore is the unlawful means through which the 3rd defendant not only interfered with Claimant’s contract but also the vehicle for inducing the breach of the contract. The argument in support of issue one in the 3rd defendant’s written address that Exhibit B is a collective agreement between the 3rd defendant and NUCECFWW and as such makes the 3rd defendant a party to Exhibit A is with respect misconceived and unsupportable. The intent and purpose of Exhibit B which is a uniform agreement with junior workers at the Chevron Nigeria Limited EGTL & EGP3 Onshore projects in Escravos cannot by any stretch of interpretation make the 3rd Defendant a party to Exhibit A. The cover page of Exhibit B is clear and unambiguous. It is an agreement between the National Union of Civil Engineering Construction, Furniture and Wood Workers (NUCECFWW) and Participating Contractors on the Work of Civil, Mechanical Engineering and Related projects as defined by Act: No 22 of 1978 and on Chevron Nigeria Limited EGTL & EGP3 Onshore projects in Escravos. The agreement was made by participating contractors on the project and as such the 3rd Defendant cannot claim ownership of the agreement. It is also clear from the cover page of Exhibit B that Chevron Nigeria Ltd is the owner of the project, It is therefore submitted that the argument in paragraph 5.2 of the 3rd Defendant’s final written address that On both employments, he was deployed to work as an electrician at the site of the 3rd Defendant in Escravos as a junior staff is not only misleading but also not borne out of the record before Your Lordship. Reference to Exhibit B as well as EGTL Project Site Rules in Exhibit A is simply to incorporate them into Exhibit A and make them binding between the Claimant and the 1st Defendant ONLY and nothing more. The doctrine of privity of contract is well entrenched in Nigeria jurisprudence. See the Supreme Court decision in U.B.A v. Jargaba (2007) 43 WRN 1 ratio 2 at page 6. The alleged exception to the doctrine of privity of contract alluded to in paragraph 5.4 of the 3rd Defendant’s final written address has no legal foundation to stand. The case of UBN Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 cited in that paragraph of the 3rd Defendant’s final written address, with respect was cited out of context and it is misleading. There is nowhere in that case that it was held that collective agreement automatically supplants or supplements the main contract of service. The Court of Appeal did not hold in that case that a strictly bilateral contract which incorporates a collective agreement automatically loses its character, rights and incidences. On the contrary, the Court held per Uwaifo, JCA. (as he then was) at page 298 paragraphs B-C as follows: “...Such collective agreement between employers and employees are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service” (emphasis supplied). Again, the submission in paragraph 5.5 of the 3rd defendant’s final written address that it was pleaded in paragraphs 15 and 16 of the 3rd defendant’s statement of defence that “all workers, officers and staff at the EGTL project site are subject to the overriding Project Labour Agreement 2010,.. “, and as such makes Exhibit B to supersede or compliment Exhibit A, is with respect a clear misrepresentation of the purport of collective agreement. It is submitted that collective agreement when adopted into a contract of service, becomes or is made part of the contract of service and its terms and conditions binding on the parties to the contract of service. See UBN v. Chinyere (2010) 10 NWLR (Pt. 1203) 453. Counsel submitted that the cases of UBN v. Edet (supra), UBN v. Chinyere (suprs,) and Gbedu v. Itie (2010) 1ONWLR (Pt. 1202) 227, cited by the 3rd Defendant’s Counsel do not support the argument that 3rd defendant is a party to the Exhibit A (a bilateral agreement between the 1st defendant and the Claimant) in order to provide it with an escape valve to avoid liability for interfering and inducing the Defendant to breach the Claimant contract. Equally misleading with respect is the circuitous argument in paragraph 5.11 of the 3rd defendant’s final written address that since the Claimant’s entitlement are contained in Exhibit A, the 3rd defendant is a party to Exhibit A. This suggestion with respect is not only factually hollow but legally unsupportable. For this proposition, the dictum of Onu, JSC in the case of Awojugbagbe Light Industries v. Chinukwe (1995) 4 NWLR (Pt. 390) 379 was quoted (happily so) in the 3rd Defendant’s written address. It is submitted strongly that the facts in that case are light years apart from the facts in this case and it also buttresses the point that the 3rd defendant’s Counsel could not find any authority to support the infamous argument being struggled to canvass. The Claimant in this case is not denying Exhibit B. The Claimant stated expressly and unequivocally in paragraph 6 of his Amended Statement of Claim that Exhibit A incorporates Exhibit B. It is also the Claimant’s case against the 3rd Defendant that the unlawful disciplinary panel made up of employees of the 3rd defendant, its proceedings and recommendations are not known to the Claimant’s contract whether Exhibits A or B or both. Thus in this case, the Claimant is relying heavily on Exhibit B to establish the unlawfulness of the so called disciplinary panel. In Awojugbagbe Light Industries v. Chinukwe (supra), the appellant sought to avoid liability under a mortgage transaction on the ground that Governor’s consent was not sought or had and it was in the light of this apparent fraud that Onu, JSC made the dictum quoted and wrongly relied on by the 3rdDefendant’s Counsel. It is submitted that the admonition in Skye Bank Plc v. Akinpelu (2010) All FWLR (Pt. 526) 460 ratio 17, to the effect that: “Each case must be considered on its own particular or peculiar facts or circumstances. No case is identical with the other or another. A decision is only an authority for what it decides and nothing more” should guide arguments and submissions in a matter. It is further submitted with respect that the argument in paragraph 5.12 of the 3rd defendant’s final written address that “at best the Claimant’s action against the 3rd defendant can only be rooted in contract in the face of the EGTL PLA” (Exhibit B) is totally misconceived factually and legally. The misconception of this argument will be exposed by the answers to the following questions: (a) How and when did the Claimant become the employee of the 3rd defendant? The 3rd defendant should provide proof to the court that it employed the Claimant. (b) On what basis will the Claimant proceed against the 3rd defendant in contract? (c) What will be the Claimant’s cause of action against the 3rd defendant in contract? (d) Does Exhibit B qualify as a service contract between the Claimant and the 3rd Defendant? It is settled law that the basis of any claim in employer employee relationship is the contract of service or employment. Certainly, Exhibit B cannot on the face of Exhibit A qualify as a contract of employment between the Claimant and the 3rd Defendant. Equally unsupportable is the submission that the EGTL site rules, regulations and policies is an agreement directly made with the 3rd defendant.(Your Lordship is respectfully referred to paragraph 5.3 of the 3rd defendant’s final written address. It is submitted that this argument is not borne out of pleadings or and/or evidence before this Honourable Court. The 3rd defendant did not plead the above fact in its statement of defence. It is settled law that the address of Counsel cannot take the place of pleadings or evidence. In Citizens Int’l Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR (Pt. 1011)332, the Court of Appeal held as follows: “In desperation, the present learned counsel for the appellant is seeking to raise viva voce, a defence which should have been contained in their affidavit. The genuineness of the account imputed to the second respondent in the garnishee bank cannot be impugned at this stage of the proceedings. The address of counsel in the appellant’s brief are mere passing remarks which in law, do not go into any issue... It should therefore only deal with evidence before the court and a mere mention of a matter in the course of that address is never a substitute for evidence available but never adduced. It cannot however well presented and persuasive take the place of credible evidence. (emphasis supplied). Counsel referred to the dictum of KatsinaAlu, J.C.A (as he then was) in Ugorji v. Onwuka (1994) 4 NWLR (Pt. 337) 226, paragraphs B-C at 238 where he stated this principle of law succinctly thus: “It is right to point out here that as important as addresses may be, cases are decided on credible evidence. No amount of brilliance in an address can make up for lack of evidence to prove and establish or else disprove and demolish points on issue.” There is equally no document showing that the so called EGTL site rules, regulations and policies was directly or otherwise made with the 3rd defendant. It is therefore submitted that this Honourable Court cannot speculate as it cannot go outside the evidence before it. It is submitted that it is not a requirement in the tort of interference and inducement of breach of contract that the 3rd party must be a stranger or otherwise. All that is required is that the 3rd party is not a party to the bilateral agreement between the contracting parties. The question to be answered is who are the parties to Exhibit A? Does Exhibit A refer to or confer contractual rights and obligations on the 3rd defendant? It is further submitted that the argument contained in paragraph 6.2 of the 3rd defendant’s final written address that Exhibit C was a direct invitation to the 3rd defendant to arrogate disciplinary powers against the Claimant to itself flies in the face of undisputed evidence before this Honourable Court. The Claimant pleaded facts and led evidence that Exhibit C was sent on the direction of Mr. M.S Kim, the Assistant Administration Manager of the 2nd Defendant. He referred to paragraphs 10 and 11 of the Claimant’s Amended Statement of Facts and paragraphs 10 and 11 of the Claimant’s written statement on oath. The Claimant was not cross examined by the 3rd Defendant’s Counsel on this evidence. The legal effect of the failure of the 2nddefendant’s Counsel to cross examine the Claimant is that it is deemed admitted. See C.E.C.T.C.S v. Ikot (2001) 23 W.R.N 142. The 3rd defendant has not placed facts before this Court to show that Mr. M.S Kim lacked authority to direct the Claimant and other workers affected by the spillover to write and send Exhibit C. The purpose of Exhibit C is clear. It was a plea to the 3rd Defendant to assist the Claimant and other affected workers get their legitimately earned money. It was not an invitation to the 3rd defendant to arrogate unlawful disciplinary powers to itself which it did not possess. It is therefore submitted that the equitable doctrine of volenti non fit injuria relied on in paragraph 6.2 of the 3rddefendant’s final written address is with respect not only uncalled for but wrongly applied to the facts of this case. In equal force the defence of estoppel does not avail the 3rd defendant. It is submitted that the Claimant cannot be said to have consented to illegality. The doctrine of estoppel in this case applies against the 3rd defendant in that it was M.S Kim’s direction that gave birth to Exhibit C. It is trite law that what is permitted or lawful cannot give rise liability. SeeMichelin (Nig) Ltd. v. Alaribe (2010) All FWLR (Pt. 543) 1998. Contrary to the impression in paragraph 6.3 of the 3rd defendant’s final written address that the Claimant did not controvert the averment in paragraph 7, 8, 9 and 10 of its statement of defence that it is the main responsibility of the 3rd defendant to maintain peaceful, conducive and breach free atmosphere at the project site, it is submitted that the Claimant sufficiently controverted the said paragraphs in paragraphs 2, 3, 4 and 5 of his Reply to the 3rd defendant’s statement of defence. It is surprising how a project which all parties conceded was awarded to Chevron Nigeria Ltd became the property of the 3rd defendant to make it the general overseer. DW3 under cross examination stated that there are security agents at the project site but no security report was tendered in this case to substantiate any purported security threat as a result of Exhibit C. Also, the allegation that there was work stoppage as a result of writing and/or signing of Exhibit C was woefully unsubstantiated by the 3rddefendant. In Claimant having denied that there was no work disruption or stoppage in paragraph 5 of his Reply to the 3rd defendant’s statement of defence, gave evidence of the fact in paragraph 31 of his written statement on oath as follows: “Work was not disrupted for two hours or any other time frame at the project site as a result of the letter of 27/1/2011 on 27/1/2011 or any other day before I was booked out of Escravos on 8/2/2011. No breach of peace occurred as a result of signing the letter of 27/1/2011 that the 3rd Defendant’s officials allegedly arrested. If there was work stoppage within the period under reference, workers’ wages would have been deducted by the Defendants”. The Claimant was not cross examined on the above evidence. On being asked under cross examination from the Claimant’s Counsel, whether the workers who signed Exhibit C were paid their full salary in January 2011, DW2, an employee of the defendant stated that “I believe that the Claimant and the other workers who signed Exhibit C were paid their salary in January 2011. It is refreshing to note that Article 18.4 of Exhibit B provides for “No Work No Pay”. It is submitted that having admitted that the workers who signed Exhibit C were paid their full salary in January 2011, the only inference that can be drawn given the entire circumstances of this case is that there was no disruption of work or work stoppage as a result of writing or signing of Exhibit C. It is very surprising that the 3rd defendant’s Counsel could not direct this Honourable Court to the provision of any document before this Court that recognizes its amorphous EGTL Industrial Relation Committee. It should be noted that the Claimant denied the existence of the purported committee in paragraph 3 of his Reply to the 3rd defendant’s statement of defence when he stated that it is unknown to his contract. It is equally amazing that no document was also referred to that expressly provided that the so called disciplinary panel should be made up of only the employees of the 3rd defendant. To further buttress the unlawfulness of the disciplinary panel, the 3rd defendant who argued strenuously but woefully that Exhibit B is an employment contract between it and the Claimant also failed to justify from Exhibit B the Claimant’s suspension for 28 days and the mandatory requirements that he write letters of undertaking to be of good behaviour and letter of apology to the 2nd defendant. Assuming without conceding that the Claimant failed to comply with Exhibit P, it is submitted that it is his Union that would have taken disciplinary steps against him not the 3rd Defendant. However, the Claimant under cross examination from the 2nd Defendant’s Counsel stated that when the spillover issue arose he reported the matter verbally to Mr. Jason Onemokpe the Vice Chairman of NUCECFWW and Mr. Jason Onemokpe advised him to act in accordance with Mr. M.S Kim’s directive. There is no record before the court to suggest that the Claimant was queried by NUCECFWW. It should also be noted that the Claimant stated that he was not aware of Exhibit P. The 3rd defendant’s also sought to justify its unlawful disciplinary panel on the ground that the Claimant incited workers affected by the spillover and procured their signature on a blank sheet. This totally unsubstantiated and unsupportable criminal allegation was not only punctured through cross examination but the purported justification also collapse like a pack of card with the perusal of Exhibit C. This allegation is criminal in nature and it settled law that it must be proved beyond reasonable doubt. See section 135(1) of the Evidence Act, 2011 and the case of WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. The 3rd defendant failed to call any worker that the Claimant allegedly procured his signature to substantiate this allegation which is devoid of particulars. It is also important to note that some the workers whose signatures the Claimant allegedly procured on a blank sheet, signed the first page of Exhibit C. No particulars were given as to the number of workers whose signatures were allegedly procured. DW2 and DW3 under cross examination stated that they were not present when Exhibit C was written or signed. It follows therefore that the criminal allegation was not proved on even the balance of probabilities not to talk of proof beyond reasonable doubt. Their evidence therefore amounts to hearsay. Finally, I urge Your Lordship to find and hold that the Claimant placed sufficient materials before this Honourable Court to establish on the balance of probabilities that the setting up of the disciplinary panel by the 3rd defendant and its recommendations was an unlawful interference with his employment contract. ISSUE TWO (2) Whether or not the recommendations of the disciplinary panel induced the 1st Defendant to breach the claimant’s contract. Counsel submitted that from the evidence before this Honourable Court, the recommendations of the unlawful disciplinary panel induced the 1st defendant to breach its contract with the Claimant. Inducement of breach of contract is a TORT which gives the injured party claim for damages. This tort is committed where a third party’s unlawful act makes it impossible for contracting parties to perform their obligations or exercise their rights under a contract. The third party’s action need not directly induce the breach of contract. It is sufficient if the third party’s action indirectly induces the breach of contract. Nigerian Courts have long recognized and applied the tort of inducement of breach of contract and awarded damages. In 1955, the West Africa Court of Appeal (WACA) recognized this tort in The British French Bank v. Owodunni (1956) N.S.C.C, 3. The tort was again recognized and applied by the Federal Supreme Court in Randle v. Nottidge (1956) N.S.C.C, 88. The court in that case held the appellant liable to the respondent for damages for inducing breach of contractual agreement and princely sum was awarded in favour of the respondent. On whether a third party can be held liable for inducing breach of contract, the Court of Appeal, Lagos Division per Rhodes Vivour, JCA (as he then was) in Nissan (Nig) Ltd v. Yoganathan (2010) 4 NWLR (Pt. 1183) 135 at pages 153— 154, paras. 1-1-A, held as follows: “Where the 3rd party knowingly and without justification facilitated or intentionally induced the breach of the contract between contracting parties, he is liable of inducing or procuring breach of contract.” In a concurring judgment, Mukthar, J.C.A,(as he then was) at page 158, paras. B-C, held: “It is an actionable wrong to flagrantly facilitate the breach of contractual obligation to the detriment of the appellant simply because the 2nd respondent was not privy to it. It is pertinent that the alleged deliberate violation of contractual term by the two respondents occasioned an actionable wrong, if proved or undenied, and the liability for the consequential damages suffered thereby is, of course joint. The basis for the imputation made in the statement of claim about the knowledge of the appellant’s contractual right and flagrant violation thereof by both respondents.” The status of the Claimant prior to the recommendations of the disciplinary panel. It is not in dispute that the Claimant prior to the setting up of the unlawful disciplinary panel had a smooth working relationship with the 1stDefendant. The following facts are also not in dispute in this case: (a) That the Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the 2ndand 3rdDefendant and summoned to the office of the 3rd defendant in Effurun, Delta State to face an illegal disciplinary panel set by the 2nd and 3rd Defendants. (b) As at 8/2/20 11, the Claimant was working at the project site as an employee of the 1st Defendant not as an employee of the 2nd and 3rd Defendants. (c) The Claimant was not booked back to the project site after the unlawful disciplinary panel hearing. (d) The Claimant has not been paid his salaries and allowances by the 1st Defendant since the unlawful disciplinary hearing till date. The fact that the 3rd Defendant knew that its unlawful recommendations would be binding on the Claimant and that it would induce the 1st defendant to breach its contract with the Claimant. It is submitted that at all times material, the 3rd defendant knew that it was not making mere recommendations which would give room to the 1st defendant to exercise any discretion in the matter. This fact is confirmed by the averment in paragraph 19 of the 3rd Defendant’s statement of defence which reads: “The 3rd Defendant specifically states that it did not in any way breach or induced the breach of the Claimant’s contract of employment. The 3rd Defendant never at anytime terminated the appointment of the Claimant notwithstanding the gross act of misconduct found by the Panel on the part of the Claimant. The Claimant rather refused and neglected to comply with the terms of the discipline recommended by the Panel and duly communicated to the claimant” The above averment expressly made by the 3rd Defendant is an admission by the 3rd defendant that it clearly induced the breach of the Claimant’s contract. The averment confirms the influence the 3rd defendant has over the 1st Defendant. The 3rd defendant did not allow the 1st defendant any room for exercise of discretion in the matter. The recommendation was final. The averment also made it clear that the 3rd Defendant could use its influence over the 1st Defendant to terminate the Claimant’s contract. By pleading that “The Claimant rather refused and neglected to comply with the terms of the discipline recommended by the Panel and duly communicated to the Claimant. “, it settles the question whether 3rd Defendant indeed directly or indirectly induced the breach of the Claimant’s contract. It is settled law that facts admitted need not be proved. See section 123 of the Evidence Act, 2011. The recommendation of the unlawful disciplinary panel contained in Exhibit N was communicated through Exhibit D. From the averment in paragraph 19 of the 3rd defendant’s statement of defence, it is clear that the 3rddefendant was involved in the communication of its recommendations to the Claimant. The submission in paragraph 7.9 of the 3rddefendant’s final written address that Exhibit N is mere recommendation cannot stand in the face of the admission of the 3rd defendant. Having made its intention clear, the fact that the 2nd defendant was the hand through which Exhibit D was communicated to the Claimant is of no moment. The disciplinary panel which is unknown to Exhibits A and B imposed unlawful punishments which are also totally outside the purview of Exhibits A and B on the Claimant and he was not booked back to work subsequently. It is submitted that there cannot be a better case of inducement of breach of contract than the case before the court. All the ingredients to establish that the 3rd Defendant directly or indirectly induced the breach of the Claimant’s contract have been proved on the balance of probabilities. It is the duty of this Honourable Court to draw its own conclusion from the facts, evidence and entire circumstances of this case whether the actions of the 3rdDefendant induced the 1st defendant to breach its contract with the Claimant.It is submitted that contrary to the argument in paragraph 7.4 of the 3rd defendant’s written address, the 1st defendant did not plead in any paragraph of its statement of defence or give evidence through DW 1 “that it has no dealing with the 3rd defendant “. It is submitted that the address of Counsel cannot take the place of evidence. See Citizens Int’l Bank v. SCOA (Nig) Ltd. (supra). What was pleaded in paragraph 4 (a) of the 1st Defendant’s statement of defence is that “The 1st Defendant avers that no special relationship exist between her and the 3rd Defendant”. In his evidence under cross examination from the 3rd Defendant’s Counsel, DW1 stated that “My company does not take direct instruction from SGC” (the 3rd Defendant). All DW1 said was that the 1stDefendant does not take direct instruction from the 3rd Defendant. He did not say that the 1st defendant does not have direct dealing with the 3rd Defendant. This testimony corroborates that fact that the recommendation in Exhibit N was communicated through Exhibit D. It also affirms the relationship between the 2ndand 3rd defendants. Reference to the Claimant’s testimony under cross examination from the 2nd defendant’s Counsel that the 3rd defendant is the “boss” cannot be taken out of context as the 3rd defendant’s Counsel seeks to do in paragraph 6.4 of the 3rd defendant’s final address. The cross examination was aimed at establishing the relationship between the defendants and nothing more. This piece of testimony did not detract from the fact that the 3rd defendant is not a party to the Claimant’s contract. It is therefore submitted that the argument in paragraph 6.9 of the 3rd defendant’s final written address that the Claimant did not suffer as a result of the direct act of the 3rd defendant cannot stand in the face of the facts before this Court. The Claimant was not employed by the 3rd defendant. He went to the project site based on Exhibit A. As stated above the project site does not belong to the 3rd defendant. The case of Bradford Corporation v. Pickles (1895) A.C 587 cited by the 3rd defendant’s Counsel with respect was cited out of context as it had nothing to do with employment. In the law report cited by the 3rd defendant’s Counsel the case was decided by the House of Lords and not by the Appeal of Court and it was reported as Mayor, &c of Bradford v. Pickles (1895) A.C 587. The case was predicated on the right of a land owner to make use of underground water in his land. The Appellants contended that the construction of a shaft by the respondent in his land was done maliciously to induce the Appellants to purchase the respondent’s land or to pay him compensation. The House of Lords dismissed the appellants’ case. There was no third party involved in the case. The alleged inducement was between the respondent and the appellants. It is also respectfully observed that the dictum allegedly quoted from the judgment in paragraph 6.9 of the 3rd defendant’s final written address is not traceable in the judgments of Lord Halsbury, L.C, Lord Watson, Lord Ashbourne and Lord MacNaughten. The 3rd defendant failed woefully to lead evidence in support of justification of the unlawful panel. Assuming without conceding that the setting up of the unlawful disciplinary panel was justified, the 3rd defendant also woefully failed to plead or lead evidence that its purported recommendations are within the purview of Exhibits A and B. It follows therefore that the case of Pritchard v. Briggs (1980) 1 All ER 294, whose facts are materially at variance with the case at hand cannot apply to this case. The case principally is on the enforcement of a right of option to purchase of land. Finally, it is respectfully submitted that the 2nd defendant knowing, intentionally facilitated or indirectly ensured that the 1st defendant breached its bilateral contract with the Claimant. From the evidence before Your Lordship, the Claimant established on the balance of probabilities that the 3rd Defendant induced the 1st Defendant to breach Exhibit A. ISSUE THREE (3) If issues one and two are answered in the affirmative, whether the Claimant is entitled to damages. It is submitted that where the tort of unlawful interference of contract as well as inducement of breach of contract is proved, the natural consequence is that damages will be awarded to the injured party. See Randle v. Nottidge (supra) and Nissan (Nig) Ltd v. Yoganathan(supra). The Claimant is claiming a modest sum of N5,000,000.00 (Five Million Naira) general damages against the 3rd Defendant for the tort of inducement of breach of his contract. Having established before Your Lordship that the 3rd defendant interfered with and induced the breach of his contract, it is submitted the Claimant is entitled to damages. It is settled law that: “damages are pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of lump sum awarded at the time, unconditionally and generally” See Agbanelo v. U.B.N (2000) 23 WRN 1 at page 16 paragraphs 10-15. It is undisputed that the Claimant suffered damages as a result of the unlawful acts of the 3rd Defendant. From the pleadings and evidence in this case the following facts are undisputable, uncontroverted and are expressly or deemed admitted: (a) Prior to the setting up of the unlawful disciplinary panel on 8/2/2011 the Claimant had a smooth relationship with the 1st Defendant and had work at the EGTL project since November 2008. 1 refer Your Lordship to paragraph 5 of the Claimant’s Amended Statement of Claim and paragraph 5 of the his written statement on oath, which are not controverted. (b) The Claimant was unceremoniously and unlawfully booked out of the worksite on 8/2/2011 by the 2nd and 3rd Defendants and summoned to appear before an unlawful disciplinary panel set up by the 2rd and 3rd defendants at the 3rd defendant’s office in Effurun, Delta State. (c) As at 8/2/2011, the Claimant was working at the project site for the 1st Defendant in furtherance of his obligation under Exhibit A. (d) The Claimant was not booked back to the project site after the phantom disciplinary hearing. (e) The Claimant has not been paid by the 1st Defendant since the purported illegal disciplinary hearing till date. (f) The unfounded and unproven criminal allegation of fraudulently procuring the signature (which must be proved beyond reasonable doubt) of workers who signed Exhibit D is damaging to the Claimant’s job prospect and also an attack on his person. It is submitted that the Claimant need not plead or lead evidence that he suffered injury in order to be awarded damages in this tort. Where inducement of breach of contract is established, the Claimant is naturally entitled to damages. However, the Court in assessing damages takes into consideration the entire circumstances of the case to arrive at the quantum of damages that the Claimant is entitled to. Enumerated in paragraph 5.2 above are some of the resultant effects of the 3rd defendant’s unlawful actions on the Claimant. The unlawful actions of the 3rd Defendant made it impossible for the Claimant to fulfill his obligations, enjoy his rights and benefits under Exhibits A and B. The natural consequence of the 3rd Defendant’s unlawful action is that it did not only prevent the Claimant from earning his salary and entitlements but also made him to carry a burden of humiliation and agony of being unceremoniously and ignominiously deprived of the dignity of enjoying the rights and benefits conferred by Exhibit A. The Claimant having established in the alternative that the 1st Defendant constructively dismissed him and that the dismissal was wrongful, it is abundantly clear that the actions of the 3rd Defendant also led to the Claimant been constructively dismissed by the 1st Defendant. In determining the quantum of damages to be awarded in this case, it must be borne in mind always that the claim against the 3rd defendant is in TORT and not in contract. It is respectfully submitted that Your Lordship should take into account the factors enumerated in paragraph 5.2 above in assessing damages to be awarded in favour of the Claimant. There is no dispute that the Claimant suffered and is still suffering pecuniary losses as a result of the inducement of the breach of his employment contract. The 3rd Defendant knew that it had no contractual substratum to set up the unlawful disciplinary panel, it was also aware of the limit to which the Claimant may be disciplined as contained in his employment contract, but however, used its position to induce the breach of the Claimant’s contract in the most wicked and humiliating manner. The 3rd defendant equally smuggled new unlawful mandatory conditions into Exhibits A and B to ensure that the Claimant was deprived of the benefits in Exhibit A. The conduct of the 3rd Defendant can best be captured by the words of Orah, J.C.A in Steyr (Nig) Ltd. v. Gadzama (1995) 7 NWLR (Pt. 407) 305 at page 337 paragraph H, where he stated thus: “I consider the manner of the termination of the appointment of the respondents as grossly irresponsible, wrongful and a naked Exhibition of power devoid of human milk and unwarranted humiliation of the respondents without reasonable cause.” The 3rd Defendant also made spurious and unproven criminal allegation of fraudulent procurement of signatures against the Claimant in its failed bid to justify the setting up of the unlawful disciplinary panel. Imputation of fraud is a very serious offence which need to be pleaded with particulars and must be proved beyond reasonable doubt. See WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 at 429. This Honourable Court should also take into account steps taken by the Claimant to resolve this matter with the 3rd Defendant amicably before filing this suit. I respectfully urge Your Lordship to refer to Exhibit H. The 3rd defendant simply ignored Exhibit H. It must be reiterated again that in accessing the quantum of damages to be awarded in this case, it must be borne in mind always that the claim against the 3rd defendant is rooted in TORT and not in CONTRACT and as such the principle applicable in award of damages in tort should be applied. It is respectfully submitted that the arguments and submissions on issue 3 in the 3rd defendant’s final written address which are predicated on the principles of contract are with respect misconceived and legally unsupportable. It is equally submitted that the cases of Shitta-Bey v. F.P.S.C (1981) 1 SC 40, Onalaja v. African Petroleum Ltd (1991) 7 NWLR (Pt. 206) 691, Spring Bank Plc v. Babatunde (2012) 5NWLR (Pt. 1292) 83, Olatunbosun v. Niser Council (1988) 2 NWLR (Pt. 80) 25, C.C.B Nig Ltd v. Nwankwo (1993) 4 NWLR (Pt. 286) 157 cited and relied on in the 3rd defendant’s final written are again, with respect inapplicable to the facts of this case. The Claimant’s case against the 3rd foremphasis is not for breach of his employment contract as he is not an employee of the 3rd defendant. The question of breach of contract has been established against the 1st defendant in the Claimant’s written address in support of his case against the 1st defendant. The Claimant cannot again make the same claim against the 3rd defendant. It is submitted that the 3rd defendant cannot make a fresh case for the Claimant.It is submitted that from the facts of this case, the Claimant is not only entitled to damages but substantial damages. I respectfully urge Your Lordship to take into consideration the entire facts of this case in the assessment of damages to be awarded in favour of the Claimant. The Federal Supreme Court in Randle v. Nottidge (supra) held the appellant liable to the respondent for damages for inducing breach of contractual agreement and princely sum was awarded in favour of the respondent. Finally, Your Lordship is respectfully urged to award the full sum claimed by the Claimant against the 3rd Defendant. CONCLUSION From the averments in the pleadings filed in this suit and evidence led during trial coupled with the principles of law enunciated in the arguments and submission as well as authorities cited, it is submitted that the Claimant has discharged the burden of proof on the balance of probabilities to entitle him to all the reliefs sought against the 3rd Defendant. In the final analysis, counsel urged the court to find and hold that: i. The setting up of the Disciplinary Panel was an unlawful interference with the Claimant’s employment contract with the 1st Defendant. ii. The setting up of the disciplinary panel, its proceedings and recommendations induced the1st Defendant to breach Claimant’s contract. iii. The 3rd defendant knew that it did not have factual or legal basis to arrogate disciplinary powers to itself against the Claimant. iv. The action of the 3rd Defendant resulted in and is still causing the Claimant to suffer. v. The Claimant is entitled to the full amount claimed as damages from the 3rd defendant. 1st DEFENDANT’SREPLY ON POINTS OF LAW TO THE CLAIMANT’S FINALWRITTEN ADDRESS It is a trite Principle of Law that however sweet and cogent an address of a counsel could be, it can never take the place of the evidence before the court and the pleadings of parties of same. It is also trite that any misrepresentation of fact in a case before a court must not be accepted, the proper thing the court can do is to discountenance it as it will mislead the court in reaching good judgment and justice in a case. It is also trite that court and parties in a case must be bound by their pleadings and record of court.We submit in all this Principles of Law that the intention of the counsel to the Claimant is to mislead this Court with facts that are not known to this case as all his arguments where completely outside the pleadings and evidence by all parties in this case.In particular reference to the counsel’s arguments in his paragraph 5.4 and paragraph 2 to state but few lied when he directed the court to take into cognizance of facts which cannot be found anywhere either in his pleadings, evidence or testimony of any parties in this case, for point of emphases let me reiterate the paragraph referred to “Paragraph 5.4 (2). The Claimant was mandated to write unreserved letter of apology to the 1st defendant and also an undertaking to be of good behavior signed by the junior workers’ union executive”. It must be noted however, that it is not only enough to argue but that argument must be inline with the pleadings, evidence placed before the Court.Secondly, it is also a trite Principle of Law that ‘He who seeks equity must do equity’ following the arguments of the learned counsel to the Claimant, with due respect, did not consider the enormity, weight and the misconduct of the Claimant to his employer in this case following the pleadings, evidence and testimonies of parties and the cross-examination of the Claimant by the 1st Defendant. Here is a man, the Claimant, who in his pleading stated that it is not the responsibility of the 1st Defendant to book workers to site, the Claimant an employee under the 1st Defendant his employer, stated also that he did not notify his employer (The 1st Defendant) “of” his problem or his ordeal with the 2nd and 3rd Defendants which of course are not his employer at the moment, left for interrogation or panel without notice to his employer, left his worksite without due notice to his employer. I submit sir that it is not only that the Claimant totally disregards his employer and also his act amount to gross misconduct to his employer. Haven’t fail to do all of this, not even one stated above cannot complain that the Court should assist him in this regard as he has fail to do what his expected of him in a relationship between master and servant, he cannot put something or nothing and expect it to stand, its must collapse.seeMacfoy v. UAC Ltd. (1962) AC 150.We had just mentioned in the above paragraph that the act of the Claimant is a total gross misconduct to his employer to have acted and put his employer in the dark of all that happened. In Uzondu v. U.B.N Plc (2008) All FWLR Part 443 at page 1392 ratio 8 and 9 respectively revealed what could amount to gross misconduct and willful misconduct. “Ratio 8 Gross misconduct means a conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and the employer”. “Ratio 9 Willful misconduct means any act prejudicial to the interest of the master or outside the scope of the duties of the servant”. Considering these authorities and its definition/meaning there is no doubt that the Claimant is found in this act stated above. See also Statement of Claim of the Claimant and the cross-examination of same by the 1st Defendant where he stated that at no time he informed the 1st Defendant his employer of the problem between him, 2nd and 3rd Defendants, we urge this Honourable Court to hold the Claimant’s Conduct amount to gross misconduct, a willful one and that he also acted outside the scope of his duties as a servant to his employer, the 1st Defendant. We also urge this Honourable Court to look at the pleadings, evidence of facts particularly between Claimant and 1st Defendant and the crossexamination by both parties. Infact, the entire Court Record. It is not in doubt or contest that an employee is entitled to his wages or salaries but same must be for the period worked for. The Claimant Counsel has argued that the Claimant is entitled to salary even though he did not work for it. It is out of place to state in his argument that the 1st Defendant should be mandated by Court to pay to the Claimant salary or salaries in the period he did not work. In our defense we did state that the Claimant absconded from duty to nowhere and moreover did not also told his employer his where about before during and after. During cross-examination of the Claimant by the 1st Defendant Counsel a question was asked as to whether he has been working since he absconded from his duty post in the worksite, the answer to this question was that he has stopped working since then for the 1st Defendant. See the final answer in the cross examination of the Claimant by the 1stDefendant. If this is so, how can he then claim for salary in the period he did not work for? This matter was put to rest in the case of Spring Bank Plc v. Babatunde (2012) All FWLR Part 609 page 1193 ratio 4. “Ratio 4 A servant who has been unlawfully dismissed cannot claim his wages for services never rendered. In the instant case, the trial court erred by awarding to the plaintiff wages for services not rendered and the award was set aside on appeal.” In this instant case, it does not matter whether the Claimant was dismissed or not or his contract of employment was terminated or not, the purport of the above preposition is that the Claimant cannot be entitled to wages for services not rendered or salary for the period he did not work for. See again the Claimant’s evidence and his cross-examination by the 1st Defendant’s Counsel where he stated that he has stopped work from the day he absconded from the site without notice to his employer, the 1st Defendant. Finally, we submit that the Claimant cannot be entitled to damages as he has failed to prove his case against the 1st Defendant. A constructive dismissal will not arise when infact the 1st Defendant did not terminate the Claimant’s employment. See Exhibit ‘U’. Also the Argument that the 1st Defendant is aware of all that were happening to the Claimant, 2nd and 3rd Defendants coupled with the fact that the 1st Defendant have knowledge of the matter is a mere speculation and such opinion must also be disregarded by the Court and look at the fact of the whole case to arrive at judgment. We therefore urge this Honourable Court to discountenance the argument of the Claimant’s Counsel and also dismiss the Claim against the 1st Defendant. 2ND DEFENDANT’S REPLY ON POINTS OF LAW AGAINST CLAIMANT ADDRESS. 1ST POINT OF LAW In paragraph 3.5 of the claimants address, though the claimant cited no legal authority, he relied on the legal principle that a defence on which no evidence is led is deemed abandoned and consequently prayed that the court should deem the entirety of the claimant claim as admitted, by reason of there being no evidence led on the 2 defendants defence. REPLY ON POINT OF LAW The claimants’ application of this principle of law in this suit is not only wrong but grossly misconceived for the following seasons:- (a)The 2nd defendant filed a statement of defence in the full denial of the facts of the claimants claim and also called a witness MR. DICKSON AJOBOR EYENMIENBAI who adopted his witness statement on oath in proof of this defence. (b)The claimant’s submission that because Mr. Dickson AjoborEyenmenbai was employed by 3rd defendant and therefore cannot give evidence for the 2nddefendant and that his evidence be imputed to the 3rd defendant is totally UNKNOWN to law and mischievous. The general principle of law is that a party to a proceedings may call whatever witness he or she chooses to call. There is no law that restricts witnesses in a suit such as this to only contractual employees of the parties. (c) There is ample evidence before the Honourable court that MR. DICKSON AJOBOR EYENMENBAI though employed by the 3rd defendant, was seconded to the 2nd defendant as her Industrial Relations Manager and acted in that capacity. See paragraph 1 of the statement on oath of Mr. Dickson AjoborEyenmenbai and paragraph 13 of the statement on oath of Mr. Chris Nevo, 3rd defendant’s witness. 2ND POINT OF LAW The claimant cited the cases of C.E.C.T.C.S V. IKOT (2001) 23 W.R.N. 142 and that of MICHELIN (NIG) LTD V. ALARIBE (2010) ALL F.W.L.R (PT 543) 1998 to submit that since the 2nd defendant did not Cross-examine the claimant on his allegation/evidence that he wrote Exhibit C on the direction of Mr. M.S. kim, a staff of the second defendant, the 2nd defendant is deemed to have admitted that this is the correct state of fact and therefore the act of the claimant in writing Exhibit “C” is lawful (See paragraph 3.13 of claimants Written Address). REPLY This is another gross misinterpretation of the position of the law with great respect to the Counsel for the claimant the two cases referred to above do not apply. The principles of law and the facts in those cases are totally different from the instant case. Firstly in the instance case there is ample evidence on oath from the 2nd defendant that Mr. M.S. Kim never gave that instruction. (See paragraph 3 and 4 of the statement on oath of MR. DICKSON AJOBOR EYENMENBAI). The position of the law is that when there is conflict in affidavit evidence as it is in the sworn statement on oath of the claimant and the 2nd defendant’s witness, documentary evidence becomes a yard-stick with which to assess the veracity of the sworn statements. In the case of C.C.C.T.S. Vs EKPO (2001) F.W.L.R part 82 page 2058 at 2077 paras. E-G (especially page 2062 ratio 10) the Honourable Court held thus; ….where, therefore, there are documents which will enable the court to resolve the affidavits which are materially in conflict there is no need for Oral evidence. It is without doubt that this suit proceeded to trial on the basis of sworn statements from witness. The 2nd defendant also tendered Exhibit 0 (Letter dated 13/01/2011 referring the list of workers affected by spill to 3rd defendant), Exhibit P (Notification of workers union to workers dated 25/01/2011 indicating that the union was working on the issue), Exhibit Q (Union’s letter to 3rd defendant dated 24/01/2011) and Exhibits R (2nd defendant’s letter returning the list to the 3rd defendant for approval). In the light of these documentary evidence before Court to wit: Exhibit 0, P, and Q which all pre- dated Exhibit “C”, the Claimant’s testimony that Mr. M.S. Kim who is Assistant Admin. Manager of defendant gave him authority to write Exhibit C to indict the 2nd defendant and by extension Mr. M.S. Kim as Assistant Admin Manager is not only incredulous but untenable. The only tenable inference that can be drawn by reason of these Exhibits is that no such instruction was given. In light of these Exhibits, cross-examination (which in this case will amount to oral testimony) is a suplusage as it would only elicit denials from the claimant and amount to acute waste of time. Secondly, it is trite law, that a party cannot approbate and reprobate and expect the court to act on such approbation and reprobation. In one hand, the claimant maintains that his contract is strictly with the 1st defendant to the total exclusion of all other parties and that the issue of payment of spill over allowance flows from his contract which is strictly between him and the 1st defendant and is urging the court to hold that the 2nd defendant has interfered with same by reason of the notification contained in Exhibit D. On the other hand, he wants the court to also hold that in discharging his obligations under his contract, it is actually lawful to act on the instructions of Mr. M.S. Kim by extension the 2nd defendant. This is what the claimant wants the court to do by agreeing with him, that he rightfully acted on the instruction of Mr. M.S. Kim in writing Exhibit “C”. We submit on this issue that the two cases cited by the claimant cannot apply to make the court do this. 3RDPOINT OF LAW The claimant in paragraphs 3.26, to 3.32 cited the case of NISSAN (NIG) LTD Vs. YOGANATHAN & ANOR (2010) 4 NWLR (Pt 1183)135 at pages 153-1 5A paras H- A to submit that the 2nd defendant’s by Exhibit D knowingly and without justification facilitated or intentionally induced the breach of his contract. REPLY With profound respect, the case cited above does not apply to the facts of theinstant case and cannot also apply in favour of the claimant for the following reasons: — (a) The facts of the cited case and the instant one are totally different. The cited case (hereinafter referred to as the Nissan case) has absolutely nothing to do with an employee still in the service of his employer as in the instant case. In the Nissan Case, Mr. Yoganathan after leaving the employment of Nissan Motors where there was a clause in his employment contract that he cannot seek employment with a competitor within a specific period, went to work immediately for Sun Motors, the 2nd respondent and a competitor for the sale of Nissan Motors with the appellant. The appellant through several correspondences informed the 2nd respondent of this fact but the 2nd respondent refused to disengage the 1st respondent from his job. These facts are completely different from that of the instant case. (b) The claimant unfortunately, has not shown the Honourable Court, the clause or referred the court to any part of his contract of employment that Exhibit “D” purportedly induced the breach of. In the Nissan’s case, there was a specific clause that Mr. Yoganthan must not seek employment with a competitor within a specific time after leaving the appellant’s employment and he did, with the active connivance of the 2nd respondent. There is no way the claimant can maintain that it was Exhibit “D” that induced the breach of the disciplinary procedures in his contract if there was any such breach. (c) In the Nissan’s case, the Honourable Justice RHODES — VIVOUR, J.C.A while delivering the lead Judgment cited with approval the English cases of BRITISH MOTOR TRADE ASSOCIATION Vs. SALVADOR1 & ORS (1949) ch. Division P. 556 and DE FRANCES CO. Vs. BARNUM 63 LT P. 514 at pages 152— 153 of report) to stress that the act amounting to inducement of breech must be express and intentionally. In both English cases as in the Nissan case, there were several notices to the 2nd respondent (Sun Motors) to inform her that the actions of the 1st respondent by seeking employment with her is in breach of her last contract. The 2nd respondent disregarded these notices intentionally. The claimant has not shown that it is the goal of the 2nd defendant to intentionally induce the breach of the claimant’s contract with the 1st defendant and that the 1st defendant informed the 2nd defendant that the acts of the 2nd defendant would cause her to breach her contract with the claimant. That in BLACK’S LAW DICTIONARY SIXTH EDITION at page 810, the word “INTENTIONAL” was defined as “Determination to act in a certain way or to do a certain thing, meaning will, purpose, design.” Exhibit “D” cannot be interpreted by any stretch of imagination to mean determination on the part of the 2nd defendant to induce the breach of the claimant contract with the 1st defendant (d) The Honourable Justice of the Court of Appeal also made it abundantly clear also that acts that could induce a breach of contract must be acts that are without JUSTIFICATION. See NISSAN (NIG) LTD V. YOGANATHAN (Cited Supra) page 153 — 154 Para H - A. My Lord the word JUSTIFICATION was defined by the BLACK’S LAW DICTIONARY, SIXTH EDITION Page 865 as follows: “Just, lawful excuse or reason for act or failing to acts”. To succeed therefore, the claimant must show that Exhibit “D” is an act of the 2nd defendant that is unjust, and for which there is no excuse or reason. The evidence before the Honourable court, shows that there are plethora of reasons and excuse for Exhibit D. Some of which are as follows: (i) Exhibit C contains indictment on the 2nd defendant by the claimant despite her not being controlling factor in the payment of spill over allowance as admitted by even the 3rd defendant is enough reason for Exhibit “D”. (ii) Exhibit 0, P. Q and R which shows that the 2nd defendant was working on the spill over allowance issue as to make Exhibit “C” unnecessary and unlawful is enough reason for Exhibit “D”. (iii) The fact that the claimant by his own evidence claims not to have any contractual relationship with the 2nd defendant and therefore ought not to write Exhibit C is another reason for Exhibit D. Finally, it is counsel’s submission that the Nissan case cannot ensure to the benefit of the claimant in this Suit. 4TH POINT OF LAW The claimant in Paragraph 5.2 of his written address relies on the principle of law that what is admitted need not be proved to request the Honourable Court to grant his VII against the 2nd defendant as she has admitted that it issues her personal receipts to the individual workers. REPLY It is trite law that no degree of consent or admission will turn an unlawful act or request into a lawful one. It is clear that relief VII of the claimant is unknown to law. It is explicit that under the applicable law in this case to wit: THE INCOME TAX LAW (Cap 12) LAWS OF DELTA STATE 2008 especially Section 6 of the said law, it is the function and duty of the Delta State Board of internal revenue to collect personal income tax ad issue receipts accordingly, it is not the function of the 2nd defendant’s company to do so. To request the Honourable Court to grant relief VII against the 2nd defendant therefore, is a request that the court grant an unlawful Order, which the Court cannot do despite there being an alleged admission or consent by parties. 3RD DEFENDANT’S REPLY ON POINTS OF LAW IN RESPONSE TO THE WRITTEN ADDRESS IN SUPPORT OF THE CLAIMANT’S CASE 1. INTRODUCTION 1.1 The Claimant’s final written address is dated 15th May 2012 filed on same date. The Claimant formulated three issues for determination. The Defendant’s reply on points of law on the issues so raised is as follows: 2.0 The Unlawfulness of the so called Disciplinary Panel 2.1 The Claimant in paragraph 3.10 and 3.11 of its written address submitted that the 3rd Defendant did not controvert the averments in paragraphs 12, 13 and 18 of the Amended Statement of Facts. We refer the court to the 3rd Defendant Statement of Defence paragraphs 5 and 15 were the 3rd Defendant unequivocally denied and placed fact before the Court to the contrary of what was state in the Amended Statement of Defence. We therefore submit that the argument of the Claimant as to the legal effect and consequence of failure to deny is misconceived and should be discountenance by the Court. 2.2 The position of the law is that issues were joined by the parties and the Claimant must succeed or fail on the strength of his case and not on the weakness of the case of the 3rd Defendant. See the Supreme Court in ODUNZE V NWOSU (2007) 13 NWLR Pt1050 Pg.1. The Claimant further submitted that the 3rd defendant failed to tender any documentary evidence which recognized and gave legitimacy to the unlawful disciplinary panel. We submit first that the burden of prove that the said disciplinary panel is unlawful is on the Claimant. It is trite that a party must first prove his case with credible evidence before the burden placed on him by the law can shift to his opponent. See the Supreme Court in EYO V. ONUOHA (2011) 11 NWLR (Pt. 1257) Pg. 26 para. H. 2.3 The fact that the 3rd defendant failed to tender any documentary evidence which recognized and gave legitimacy to the unlawful disciplinary panel does not rob the panel of legitimacy. The Court will note that the agitation of the nonpayment of the spillover allowance which led to the Claimant cause of action and the making of Exhibit C is not documented. The Claimant equally did not tender or place any documentary evidence before the Court which gave the Claimant the right to be paid spillover allowance, (nothing in Exhibit A & B which are the written contract of the Claimant confers this right), yet the Claimant referred to this in his pleadings as a legitimate right and entitlement. It is therefore submitted that the fact that there is no document does not make the Panel an illegal Panel. 2.4 In paragraph 7 of the 3rd Defendant Statement of Defence and deposition on oath of DW3, evidence was led to the fact that the said Panel is one of the standing Committees for the EGTL project and its composition was equally pleaded. DW3 was a member of the Panel and the Claimant did not cross examine him on this legality of the Panel. For a piece of evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opposing party who should in the process of cross examination attack and debunk it. See EWO V ANI 2004 3 NWLR Pt. 861 Pg. 610. This the Claimant never did, we submit that it is too late in the day to tag the Panel with the toga of illegality. 2.5 The fact that the Claimant and other 8 staff were summoned and booked out of the site to appear before the said Panel, the fact that the Claimant did not challenged the legality and setting of the Panel at the time of the hearing, the fact that the representative of the Union of the Claimant (NUCECFWW) which the Claimant conceded in his written address ought to be the one to discipline the Claimant was among the member of the four man Panel shows on the preponderance of evidence and balance of probability that the Disciplinary Panel and its existence at the EGTL project was not strange or alien to the Claimant. 2.6 The Claimant in its written address in paragraph 3.13 and 3.14 twisted the position of the known law of contract and agreement. It is elementary that an agreement is only binding and becomes a legal document upon its execution by the parties. In law, an agreement is only enforceable and legal rights and liability flows therein only on the parties that executed same. In the determination of the parties to any agreement, the Court will never construe such from the cover page of the agreement. At best, the cover page can reveal the intention of the parties. It is equally elementary that the preamble or introductory or commencement part of an agreement and not the cover page is a reliable guide. The Court is invited to peruse Exhibit B tendered by the Claimant as part of his contract of service. The Preamble on page 3 and the execution page on 21 and 22 clearly shows the 3rd Defendant and the Union representing the Claimant as the party to the agreement and not Chevron Nigeria Limited. 2.7 The Claimant submission in paragraph 3.17 and 3.18 is totally misleading, the position of the 3rd Defendant at the risk of being repetitive is to the effect that part of the Claimant’s claim before this court is for his entitlement as contained in Exhibit B which is the Collective Agreement incorporated and adopted into Exhibit A. The fact in Awojugbagbe Light Industries v. Chinukwe(supra) may be different to the Claimant’s case before the Court but the legal and logical principle is the same, Claimant cannot pick and select the part of the agreement that support his case. The Claimant cannot take benefit from an agreement with one hand while contending the legality of the said agreement with the other hand. 2.8 1st Defendant is not a party to Exhibit B and did not execute same. 3rd Defendant and Hyundai Heavy Duty Industries were the only signatories together with the Union in representative capacity for the Claimant. The Court will note that both the Employers in Exhibit B did not sign in any representative capacity like Claimant Union (the Employee). In Exhibit B, it is expressly stated in page 2 thus: ‘Furthermore, it shall be the duty of the Employer(s) to ensure that all their respective duly engaged Subcontractors and lower-Tier Subcontractors conform with the duties and obligations of the Employer(s) as contained therein’. By all intent and purpose, within the ambit of the clear terms of Exhibit B and the EGTL project site, the 3rd Defendant is the main party to the Collective Agreement with the Claimant (represented by his Union) and not the 1st Defendant. 2.8 In paragraph 3.21 — 3.22 of the Claimant written address, Counsel submitted that in the tort of unlawful interference, all that is required is that the 3rd party is not a party to the bilateral agreement between the contracting parties which Claimant obviously refer to Exhibit A. the further question raised by the Counsel was ‘who are the parties to Exhibit A’. The Counsel however avoided raising the same question for Exhibit B because of the obvious answer. On the fact that Exhibit C was written to the 3rd defendant on the instruction of M.S Kim. The said M.S Kim is not the staff of the 3fl Defendant both from pleadings and evidence before the Court, there was therefore nothing for the 3rd Defendant to cross-examine or that can be deemed as admitted by the Court. This does not in any way affect the fact that the Claimant and his cohorts wrote directly to the 3rd Defendant. This fact was categorically denied by DW2 and it is the fact solely within the knowledge of the Claimant. It is however curious when it is viewed from the fact that S.M Kim is not the staff of the l Defendant and not the Claimant’s direct boss. 2.9 Claimant further relied on Article 18.4 of Exhibit B provides for “No Work No Pay” to suggest the fact that since Claimant and his cohorts were paid, there was no work stoppage as pleaded and alleged by the Defendants. We submit that Claimant by his pleadings and evidence was paid monthly (complete shift) and not hourly. The two hours work stoppage occasioned by the agitation of the letter written by Claimant and his cohorts and the crisis that ensued was not for the entire day(s). The said staff were therefore entitled to their wages or salaries. 2.10 Lastly on this issue, the 3rd Defendant in its entire pleadings and evidence did not alleged fraud or criminal activities against the Claimant. The fact pleaded in paragraph 14 of the Statement of Defence were the findings of the Panel and nowhere was the word fraud or fraudulent used in the entire pleadings. There is nothing therefore that must be proved beyond reasonable doubt as submitted by the Claimant in its written address. 3. ISSUE TWO 3.1 Claimant in paragraph 4.8 submitted that the ‘recommendations of the unlawful disciplinary panel contained in Exhibit N was communicated through Exhibit D. From the averment in paragraph 19 of the 3rddefendant’s statement of defence, it is clear that the 3rd defendant was involved in the communication of its recommendations to the Claimant’.Counsel submitted that this cannot be anything farther than the truth. Aside the fact that this fact was never pleaded and Claimant Counsel’s submission cannot replace pleadings, it is trite that a document speaks for itself. No submission or parol evidence can add to a document what is not stated therein. (See S. 128 Evidence Act 2011). Exhibit N states on the face of it what it is ‘... Findings, Recommendation..’ it was communicated by Exhibit D. Exhibit D was not signed or written by the 3rd Defendant, it is therefore a desperate attempt by the Claimant in his frustration to submit that the 3rd Defendant directly communicated Exhibit D to him. It was the 1st defendant who communicated its decision to the Claimant and we urge the Court to so hold while we reiterate the decision in THOMAS FRANCIS ALLEN V WILLIAM CEIDGE FLOOD & ANOR (supra). 3.3 The submission of the Claimant in paragraph 4.11 was not pleaded and an afterthought. The Claimant Counsel submission cannot take the place of pleadings and evidence. The ownership of the site was never in issue. In a desperate attempt to deny the relationship between the Claimant and the 3rd Defendant so that the Claimant can wear on the 3rd Defendant the lapel of a total stranger and third party to his contract of employment, Claimant in his submission denied the obvious. We invite the Court to peruse Exhibit I and J which are the two identity cards of the Claimant. Exhibit I was issued by the 1st Defendant while Exhibit I was issued by the 3rd Defendant. We commit the answer to the frustration of the Claimant to the wise and discerning mind of this Honorable Court. 3.3 Lastly 3rd defendant never pleaded or claimed ownership of the site but that of the work on the site. The defence of the 2nd Defendant is that the setting up the Disciplinary Panel and the findings or Recommendations of the Panel was in the exercise of its right as the main or major contractor of the work site ESCRAVOS and in discharge of its duty as such. In the case of BRADFORD CORPORATION V PICKLES (1895) A.C 587, the Privy Council held that wherever a right is infringed, and damage results, an action will lie unless the defendant can ‘shew’ that he was exercising a right or discharging a duty. This we submit is the defence of the 3rd Defendant. 4. Damages 4.1 We refer to our main submission already placed before the court in final written address. We further submit that the cases cited by the Claimant are not on all fours with the fact and evidence in this case. 4.2 We therefore urge the Court to discountenance the said submission of the Claimant on substantial damages and the authorities cited therein. Where there is no breach of any conceivable legal right, there can be no damages. We urge the Court to dismiss the claim of the Claimant against the 3rd Defendant. THE COURT’S DECISION I have carefully considered the processes filed, evidence led and submissions of counsel in this matter and the issues that stand out for the determination of the claimant’s suit against the 1st Defendant are:- (i) Whether or not given the state of pleadings and the evidence led in this matter it can be said that the Claimant disappeared from his work site in Escravos and refused to resume duty or that he abandoned work? (ii) Given the fact that the Claimant’s contract was not terminated by the 1st Defendant, whether or not the Claimant is entitled to his full salary and allowances from February 2011 to December 2011? (iii) In the alternative, whether the Claimant has been constructively dismissed by the 1st defendant and is entitled to his claim of general damages? On the 1st issue, learned claimant’s counsel built his case around the fact that the claimant did not abandon his place of work, which is Escravos, but rather that he was not going for work because he had been booked out from the work by the 1st defendant. On its own part, the 1st defendant maintained that it had no knowledge of the non-booking and non-airlifting of the claimant by the 2nd and 3rd Defendants respectively. That the Claimant did not inform it as its employer of his problem with the 2nd and 3rd Defendants in relation to the disciplinary proceedings which he faced on 8th February, 2011 and the subsequent disciplinary measures that arose therefrom. Thus since he did not formally inform it of same, he was not to expect the 1st defendant to have knowledge of his travails with the 2nd and 3rd Defendants. I have considered the evidence, arguments and submissions of learned counsel to the parties on the issue. The claimant placed much emphasis on paragraph 12 of his statement on oath on the reason why he left his work place and why he did not go back to the work place. He stated that: “12. Rather than lay the issue to rest, the Defendants decided to victimize me and eight other workers who signed the letter for daring to fight for our legitimate entitlement. In furtherance of the defendants’ victimization plan, I was booked out along with eight workers from the project site on February 8, 2011 to face a Disciplinary Panel at the 3rd Defendant‘s office in Effurun. I had no choice in the matter but to pack my bag. On arrival at the 3rd Defendant‘s office on February 8, 2011, I was summoned to appear before the Disciplinary Panel made up of Mr. Dickson AjoborEyenmienbai and Mr. Chris Nevo both employees’ representatives or persons authorized to act on behalf of the 3rd Defendant.” This piece of evidence does not show, in my humble view, that the claimant was booked out by the 1st defendant or that the 1st defendant was part of the defendants’ victimization plan. I note that what the claimant urged the court to do was to infer that the presence of the representative of the 1st defendant who usually takes attendance of workers who reported for work at the project site was sufficient basis to presume that the 1st defendant was aware of the fact that the claimant was booked out. Here the 1st defendant has denied in its defence that it was aware of the booking out of the claimant. The claimant thus has a duty to, through credible evidence, show he had informed the 1st defendant of his being booked out and that he was facing the disciplinary proceeding as part of a victimization plan against him. All that the claimant wants the court to do is to draw an inference and impute the said knowledge into the 1st defendant from the circumstances of the case. Having put the evidence of both sides on the scale of justice, I am inclined to believe the 1st defendant that it was not informed by the claimant of his being booked out of work and also he did not inform it about his travails with the 2nd and 3rd defendants over the disciplinary proceeding he was to face, having been booked out. As an employee, the claimant had an obligation to inform his employer, the 1st defendant directly and positively, about his not being booked to proceed to work or that he was facing a disciplinary panel over what allegedly arose in the course of his work. There is no positive and direct evidence from the claimant to show that he did this. The Claimant has proffered an argument that the contents of Exhibit D show that the Claimant needed to be booked back to work. However, in my humble view, whereas Exhibit D shows that the Claimant needed to be booked back, the issue before the court is whether the Claimant has provided direct and clear evidence that he was not actually booked back after the Disciplinary hearing or the expiration of the suspension. In the absence of such evidence the only conclusion left for the Court to draw is that the Claimant left the work site, Escravos, without informing the 1st defendant and I so find and hold. Tied to this point is the reference by the claimant of a plan to victimize him conceived by the defendants and that the disciplinary proceeding was part of the steps taken to implement the said victimization plan. This has not been supported by any credible and reliable evidence by the Claimant. Then there is the issue of refusal to resume work by the claimant. I have considered the arguments and submissions of the parties and from the evidence before the Court, the Claimant has not shown, since deciding to pack his bag on the 8th of February, 2011, what effort he made to be at the work site, Escravos but found that he was not booked back to work. The submissions made by the Claimant over the allegation that he was not booked back to work, all refer to what he did on the 8th of February 2011 and not thereafter. I am therefore unable to accept the position of the claimant that he was not booked back to work but rather I find that he refused to go back to the work site on his own. This is because the evidence of the Claimant on the efforts he made to get back to work, especially that he went to bus stop several times without his name being on the manifest, cannot stand when weighed against that of DW1 paragraph 5 (d) and (f). There is no evidence of any communication between the Claimant and the 1st Defendant until the letter written by the Claimant’s solicitor to the 1st Defendant, Exhibit E. In view of the forgoing therefore, the first issue is hereby resolved in favour of the 1st Defendant. On the second issue, which is whether the claimant is entitled to his full salary and allowances since his contract was not terminated, I have considered the submissions of both parties on the issue. Whereas the claimant’s submissions on the issue are tied to the first issue being resolved in his favour, I nonetheless shall consider it in the overall interest of just determination of the case. The position of the claimant is that since the contract of employment had not been terminated he was entitled to all the salaries and allowances from February, 2011 to December 2011. This is because the contract of employment should be allowed to run its full course on the payment of the emoluments of the claimant since it was not justifiably stopped by the 1st defendant. The 1st defendant on the other hand contended that it did not terminate the claimant’s contract of employment and the claimant, who abandoned his work is not entitled to any of his claims. In addressing this issue it is necessary to refer to and examine the provisions of the contract of employment between the claimant and the 1st defendant, which is Exhibit A. Part of the said Exhibit A provides: That the Employer covenant to pay the Employee the agreed wages and any subsequent agreement negotiated by NUCECFWW, and the Employee covenant to give the best of his abilities and to obey all lawful instructions of the employer and/or any other superior authority of the EGTL Project. That the employer shall pay the remunerations of the employee on Daily Rate basis, and the employer has cognizance of accumulated increases in the Rate and annual leave based on the date (11 November 2008) Daewoo Nigeria Limited first mobilized the employee to the EGTL Project to maintain seniority only. And that wages shall be paid on or before the last day of the 3 weeks (21 days) shift worked.(underlining mine). Furthermore, wage or wages has been defined by the Black’s Law Dictionary, Eight Edition to mean: Payment for labour or services usually based on time worked or quantity produced; compensation of an employee based on time worked or output of production. From the terms of Exhibit A as stated above and the definition of wages above it is quite clear that the claimant, as an employee, only becomes entitled to his wages or emoluments based on the time for which he has actually worked. This is because the quoted provisions reproduced above clearly state that wages are payable for shifts actually worked for by the Claimant. This knocks off the bottom of the Claimant’s argument that he should be entitled to the payment of his full wages even where he has not worked for such wages as this would run counter to the express provisions of his contract of employment, Exhibit A. The 2nd issue is therefore resolved against the claimant. On the 3rd issue which is argued in the alternative by the Claimant, to the effect that the disciplinary measures against the claimant which were given against his terms of employment, exhibits A and B amount to constructive dismissal and thus a wrongful termination of his employment. Learned claimant’s counsel referred to and relied on the authority of the Book by Professor Chianu titled Employment Law, Akure, Bemicov Publishers, 1st Edition, 2004 page 315 and the decision of the Supreme Court in the case of Ilodibia vs NCC Ltd (1997), supra. The critical point though is the submission by learned counsel that the following constitute “undisputed facts” as well as “undisputed terms and conditions in Exhibits A and B breached by the 1st Defendant” that the court should hold that amount to constructive dismissal of the claimant: (1) The Claimant was suspended for four weeks as against a maximum of 10 days provided by Article 30.1.3 of Exhibit B. (2) The Claimant was mandated to write unreserved letter of apology to the 1st defendant and also an undertaking to be of good behavior signed by the junior workers’ union executive. (3) The Claimant was not booked back to the project site after the disciplinary hearing of 9/2/2011. (4) The Claimant was not paid his salary and allowances from February 2011 to the end of the duration of Exhibit A. (5) The 1st Defendant ratified, acted on Exhibit D and justified its actions on the purported findings and verdict of the disciplinary panel. See Exhibit M and paragraphs 4 (d), (g) and (h) of the 1st defendant’s statement of defence. It is important to point out that item (1) above is the only paragraph that made reference to Exhibit B, the contract of employment of the claimant. The other paragraphs, (2), (3), (4) and (5) have not referred to any paragraphs of either Exhibits A or B or any other term of the Claimant’s contract. However, as admitted by the claimant himself, Exhibit B by its paragraph 29.7 incorporates Exhibit T, Exhibit T therefore forms part of the contract relationship between the 1st defendant and the Claimant. See the case of Salami vs Union Bank of Nigeria (2010) LPELR-8975 (CA)p. 41 paras D-E Furthermore, Exhibit T, the EGTL Culture Plan & Harassment & Violence Policy (Zero Tolerance Policy), does state that the Claimant can be suspended from work and no specific period of time for the suspension has been given but that would be determined by “the seriousness of the violation”. From a reading of Exhibit T, the Claimant could have been made to face any of the measures enumerated therein, but only the suspension was invoked against him. Thus the Claimant was susceptible to disciplinary measure in line with Exhibits A, B and T of the terms and conditions of his employment and it is clear that Exhibit D was a disciplinary step against the Claimant having appeared and defended himself before the disciplinary panel. The question therefore is whether, a disciplinary measure, such as suspension, given to an employee as such after due hearing has been granted him can be heard to complain of constructive dismissal and thus wrongful termination? My answer to this in respect of the facts and circumstances of the case of the claimant is no and the authority is to be found in the case cited and relied upon by the claimant on constructive dismissal, namely, Ilodibia vs NCC Ltd, supra. In the case of Ilodibia, supra, the Supreme Court upheld the decision of the trial court and the Court of Appeal that a suspension which was irregularly done without a reason given to show that it was a step in disciplinary proceedings, amounted to a constructive dismissal. In the instant case, from my findings earlier that the suspension has been shown by the 1st Defendant to be a step in disciplinary proceedings, the said suspension cannot be said to be amount to constructive dismissal. Furthermore, the 1st Defendant had maintained its position that the claimant did not inform it of the problems he was having with the 2nd and 3rd Defendants in respect of the spill over allowance and the disciplinary proceedings that resulted therefrom. From the totality of the evidence and submissions of both counsel on the issue, it is my humble view, that the claimant has not shown that there is satisfactory basis for the court to presume that he had indeed informed the 1st defendant when he had problem with the spill over allowance or when he was summoned to appear for the disciplinary proceedings on the 8th of February, 2011. He has equally not provided convincing evidence that, as I found earlier on in this judgment,he had not been booked back to work during or after the suspension by the 1st Defendant. There is therefore no sufficient basis to support the position of the claimant that he had been constructively dismissed by the 1st Defendant, and I so hold. On the case of the claimant against the 2nd Defendant, the main issue for determination is whether the 2nd Defendant unlawfully interfered with and induced the breach of the employment contract of the Claimant with the 1st Defendant entitling the claimant to damages against the 2nd Defendant? Both parties have referred to and relied on the authority of the decision in the case of NISSAN (NIG) LTD vs YOGANATHAN (2010) 4NWLR (PT 1183) 135 to the effect that the act amounting to unlawful interference with and inducement for the breach of a contract must be one that was committed knowingly and without justification. In accordance with this principle of law therefore,for the claimant to succeed against the 2nd defendant he must also prove that the 2nddefendant knowingly and without justification facilitated or intentionally induced the breach of his contract. The parties are both agreed that the contract of employment between the Claimant and the 1st Defendant are based on exhibits A and B. The duty of the Claimant therefore is to show how the contract of the Claimant with the 1st Defendant was unlawfully interfered with and breached by the 2nd Defendant. The case of the claimant in this regard is that the said Exhibits A and B have not provided for the setting up of the Disciplinary Panel whose findings contained in exhibit D amounted to and breached the employment contract relationship between him and the 1st Defendant. On its own side, the 2nd Defendant maintained that Exhibit D cannot be said to be unjustified in light of the accusations contained in Exhibit “C” that the 2nd defendant is deliberately refusing to pay spillover allowancewhich it actually had no authority to pay except with the approval of the 3rd defendant. That such accusation made by the Claimant, an employee of a sub-contractor to the 2nd defendant, is enough justification for the simple notification of the subcontractor (the 1st defendant) of the outcome of disciplinary panel set up by the 3rd defendant (Exhibit D). The 2nd Defendant also maintained that Exhibit “D” never induced a breach of contract because there is no evidence before the court that Exhibit “D” led the 1st defendant to take any action in breach of the contract or stopped the Claimant from performing any of his contractual obligations.I have carefully considered the evidence and submissions of counsel on the issue and the claimant’s case is predicated on the setting up of the panel which produced the disciplinary recommendations contained in Exhibit D and that the notification of the said Exhibit D by the 2nd Defendant amounted to unlawful interference and breach of the said contract of employment relationship between him and the 1st Defendant. However, the question is, what is the direct and unjustified act of the 2nd Defendant that amounted to the unlawful interference with and the breach of the contract of employment of the Claimant with the 1st Defendant? Here, it is my humble view, that the 2nd Defendant could not have been said to have unlawfully interfered with the said contract of employment relationship by simply notifying the claimant of the decision of the panel. This is because from the evidence of the Claimant himself, he, along with other workers authored Exhibit C, which he said was on the directive of MrM.S. Kim, complaining about the non-payment of spill over allowance. The Claimant has not shown how the act of notification, ipso facto,amounted to an unlawful interference which induced the breach of the contract of employment between him and the 1st defendant. In fact, the position of the 1st Defendant, which this court has upheld, is that there was no termination of the contract of employment relationship between it and the Claimant and it was in fact the Claimant that abandoned his work and did not even inform it of his travails with the 2nd and 3rd Defendants. In the circumstance therefore, the issue is hereby resolved in favour of the 2nd Defendant. On the case between the claimant and the 3rd Defendant, the issues for determination are: 1. Whether the Claimant can maintain an action in tort (unlawful interference and inducement of breach of contract) against the 3rd Defendant? 2. Whether the setting up of the Disciplinary Panel by the 3rd Defendant amounts to an unlawful interference and breach of the Claimant’s contract with the 1st Defendant? 3. Whether or not the recommendations of the disciplinary panel induced the 1st Defendant to breach its contract with the Claimant and whether the Claimant is entitled to damages? I shall deal with and consider the 1st and 2nd issues together. The Claimant’s case is that his action against the 3rd Defendant is rooted in tort of unlawful interference with and breach of his contract of employment with the 1st Defendant by the 3rd Defendant. The learned Claimant’s counsel stated the legal basis for his claim as being the established principle in the case of Bowen v. Hall (1881) 6 Q.B.D. 333and also the Book titled Winfield & Jolowicz on Tort, 15th Ed by W.V.H Rogers, London, Sweet & Maxwell Ltd. 1998.To the Claimant, the 3rd Defendant is liable in tort because he is a third party to the bilateral contractual relationship between the Claimant and the 1st Defendant. The 3rd Defendant on the other hand maintains that the case of the claimant can only be founded in contract and not in tort because the contract of employment executed by the Claimant with the 1st Defendant (Exhibit A) incorporated by reference, several other Agreements. The said Exhibit A referring to Exhibit B states: ‘That this Agreement incorporates all the terms and Conditions of service as provided in the EGTL Project Labour Agreement (PLA) 2010... and the EGTL Project Site Rules’. That aside from this, the EGTL site rules, regulations and policies is an agreement directly made with the 3rd Defendant and the union of the Claimant, NUCEFWW by which the claimant is bound same having been incorporated into his contract of employment through Exhibits A and B. Learned counsel relied on the case of UBN LTD. V. EDET (1993) 4 NWLR (Pt. 287) Pg. 288 @ 298 para B-C. I have carefully considered the arguments and submissions of learned counsel to the parties, and it is clear from the evidence before the court, that the basis of the contract of employment of the claimant includes exhibits A and B. Since Exhibit B is an agreement between the 3rd Defendant and the Union of the Claimant, NUCEFWW, which the Claimant himself agrees regulates his contractual relationship, it is not difficult to find that the 3rd Defendant and the Claimant are in a contractual relationship and therefore, the 3rd Defendant is accordingly not a stranger to the contractual relationship between the claimant and the 1st Defendant. In other words, by the incorporation of Exhibit B into Exhibit A, a multilateral relationship has been created in the EGTL Project which binds the Claimant, the 1st Defendant and the 3rd Defendant and that this is sufficient in my humble view to disentitle the claimant to found an action in tort against the 3rd Defendant and I so hold. See UBN vs Chinyere (2010), supra and GBEDU V. ITIE (2010), supra. See also Exhibits I and J, the identity cards issued to the Claimant by the 1st and 3rd Defendants respectively. On the issue of whether the setting up of the Disciplinary Panel by the 3rd Defendant amounts to unlawful interference with the contract of the Claimant with the 1st Defendant, the argument of the claimant is that there is nowhere in either Exhibit A or B that it is provided that the Disciplinary Panel could be set up and therefore this makes it unlawful. However, the 3rd Defendant argued in response that it was the letter of petition, Exhibit C which was written by the Claimant along with other persons concerning the non-payment of spillover allowance which led to the setting up of the said disciplinary panel. The claimant has not denied writing the said exhibit C but only argued that it was written under the direction of the one M.S. Kim, a manager with the 2nd Defendant. The fundamental point though is that, a careful perusal of the said Exhibit C shows that it asked the Management of the 3rd Defendant to intervene and resolve the issue of the non-payment of the spillover allowance. At the same time, there is clear evidence that the union of the Claimant, NUCECFWW, the party to Exhibit B, was also making efforts to resolve the said problem of the non-payment of the spillover allowance. The question then was it in line with the contract of employment of the Claimant, either Exhibit A or Exhibit B, to have written such a letter, especially since his union was already in the process of resolving the issue? In answering this question it is instructive that the claimant who felt he was entitled to the payment took the step to recover what he believed was his legitimate right, having been caught by the spillover on 7th, 8th and 9th of January 2011. I also do not agree with the 3rd Defendant’s submission that the spillover payment is not a right simply because it was a reimbursable allowance. Once a worker has shown that he is affected by the spill and the procedure for the verification of the allowance by the 3rd Defendant has been used to establish its existence, then it must at ,the point amount to a right of the respective staff. Having said this however, the question is whether the writing of Exhibit C by the Claimant and others was indeed a procedure sanctioned by the claimant’s contract of employment. This, the claimant has satisfied the court thereon. The fact that the manager of the 2nd Defendant, Mr M.S Kim, asked him to write, which has been denied by the Defendants, is not sufficient to justify his actions. Thus, I am inclined to accept the argument of the 3rd Defendant which is founded on the strength of the authority in the case of BRADFOR CORPORATION V PICKLES (1895) A.C 587, that it the panel was set up to investigate the claimant and others in the discharge of its duties as the main contractor in the EGTL Project who had been called upon by the Claimant and others to take steps to resolve the issue of outstanding payment of the spillover allowance. This is because on the preponderance of the evidence before the court, the EGTL-PLA Agreement and the site rules and regulations place upon the 3rd Defendant, the right to take steps to discipline staff working on its site. See Exhibit C and N. Therefore, there is no basis for holding otherwise than that the setting up of the Disciplinary Panel by the 3rd Defendant was lawful and its recommendation did not lead to the breach of the contract between the Claimant and the 1st Defendant, and I so hold. On the last issue of whether the claimant is entitled to damages against the 3rd Defendant, with the resolution of the above two issues in favour of the 3rd defendant, the prayer of general damages to must fail because without any injury, the claim for damages must fail, and I so hold. See CAMEROUN AIRLINES V OTUTUTIZU (2011) 4 NWLR (pt.512)p.31. In the circumstance therefore, and for all the reasons given above, the action of the Claimant fails and is hereby dismissed. I make no order as to costs. Judgment is entered accordingly. Hon. Justice A. Ibrahim Presiding Judge