IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI THURSDAY, NOVEMEBER 26^TH, 2020.

SUIT NO: NICN/LA/506/2017

BETWEEN:

MR. SUNDAY ARCHIBONG

:::           :::

CLAIMANT

AND

INTERNATIONAL CO-OPERATION

INDUSTRIES NIGERIA LIMITED   :::

:::

DEFENDANT

APPEARANCE

E. I Emmanuel  for the Claimant.

Olubukola Fadahunsi for the Defendant.

JUDGMENT

By a General Form of Complaint and Statement of Facts dated the 19^th day of October 2017, the Claimant commenced this action against the Defendant seeking for the following reliefs:

[i]               A Declaration that the Claimant is still an employee of the Defendant Company.

[ii]             A Declaration that the Claimant is entitled to be paid his monthly salary/wages and other entitlement by the Defendant until his appointment is lawfully terminated.

[iii]          An Order directing the Defendant to pay to the Claimant his monthly salary/wages of N40, 600.00 (Forty Thousand, Six Hundred Naira) only from December 2016 when he was placed on suspension by the Defendant until his appointment is lawfully terminated, which sum as at the end of September 2017 stood at Four Hundred and Six Thousand Naira [N406, 000.00] only.

[iv]        Cost of this action estimated at N50, 000.00 [Fifty Thousand Naira] only or any other sums as may be awarded by the court.

THE CASE BEFORE THE COURT.

It is the case of the Claimant that he was employed by the Defendant as an Electrical Officer vide a letter dated the 1^st of July 2004, and he worked in that

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capacity in the Defendant Company up until 24^th December, 2016 when he was placed on indefinite suspension by the Defendant. The Claimant averred that the Defendant did not issue him with a letter of confirmation after the expiration of the six months’ probation period; that the Defendant allowed him to continue to work for a period of over twelve years and also continued to pay his salary throughout the said period. The claimant further averred that his monthly remuneration was reviewed periodically from the initial sum of N9, 000.00 (Nine Thousand Naira) at the time of his employment in 2004 to the sum of N40, 600.00 (Forty Thousand, Six Hundred Naira) only, which was the last sum he received as his monthly remuneration in November 2016.

It is the Claimant’s case that the Defendant orally placed him on an indefinite suspension on the 24^th of December 2016, following an incident that took place the previous day relating to the breakdown of the Defendant’s generating set. The Claimant also averred that as at the time of his suspension on the 24^th of December, 2016, he was not paid his December 2016 salary and that despite three subsequent visits to the company in December 2016, January and February 2017, he has not been paid his salary till date, hence this suit.

The Defendant’s case is that the Claimant was placed on suspension for only one week and that it was the Claimant that dismissed himself by failing to resume work at the expiration of the one week period. The Defendant therefore denies the Claimant’s claim and in response filed a Counter-claim against the Claimant.

The Defendant also Counterclaim against the Claimant for the sum of N8,000,000.00 being the cost of fixing and repairing the Counterclaimant’s generator which got damaged in June 2016 and December 2016 due to the negligence and penchant attitude of the Defendant to counterclaim to work, the sum of N250,000.00 being the cost of the action and the sum of N1,000,000.00 as damages for the losses and inconveniences suffered by the Counterclaimant due to the negligence of the Defendant to the counterclaim.

At the trial, the Claimant gave evidence by himself and adopted his Written Statement on Oath dated the 19^th of October 2017 as his evidence–in–chief in thiss case. The Claimant also tendered a total of four [4] which documents were admitted and marked as EXHIBITS C1, C2, C3, &C4 respectively.

The Defendant called one witness, Mr. Yinka Omotola [DW1]; the head of electrical department of the defendant company who adopted his Witness Statement on Oath dated the 18^th of October 2018 as his evidence-in-chief in the case. The Defendant tendered (1) document as contained in the Defendant’s list of documents dated 17^th October, 2018 in support of his depositions and pleadings before the court. The said document was admitted and marked as

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EXHIBIT D1. Both witnesses were duly cross examined and at the close of trial the case was adjourned for adoption of Final Written Addresses.

THE SUBMISSIONS OF THE DEFENDANT

Learned counsel for the defendant submitted two (2) issues for determination, to wit:

1.                 Whether the claim of the Claimant is sustainable in Law

2.                 Whether the Claimant is entitled to the Salary/wages of Period he did work with the Defendant.

In arguing issue 1, learned Counsel placed reliance on the case of STRAG v. ADEYETA (2001) 19 WRN CA. and submitted that either party can terminate the contract of employment between them in as much as the termination is done within the terms of the contract of employment. Counsel referred to EXHIBIT CW1 and stated that the contract of employment only requires two weeks’ notice or two weeks’ salary in lieu of notice and that the two weeks’ notice must be within the time the Claimant is within the service of the Defendant and not after he had absconded from work. To the Defendant, the question to be asked is if the Claimant is entitled to the salary of the months he never worked for?

Counsel relied on the case of Mobil Production (Nig.) Unlimited v. Udo (2008) 36 WRN C.A and argued that the Claimant’s claim for the salary of over one year that he never worked for or renders services for without being excused from work or suspended from work is absurd and strange in law and it shows that the Claimant is a gold digger who wants to rip where he has not sown. Counsel stated that the court of Law and court of Equity will not allow such. Counsel argued further that the parties in this suit are bound by the four walls of their terms of contract; that it was not included in EXHIBIT CW1 that the Claimant is at liberty to abscond from his work and still be entitled to a salary. Counsel referred this court to the evidence of the claimant under cross examination.

Learned Counsel argued that under the common law concept, resignation from employment is by giving of the required length of notice in the contract of employment or by making payment in lieu thereof. Resignation takes effect from the date notice is received by the employer or its agent. Counsel relied on the case of SUNDAY v. OLUGBENGA (2009) 24 WRN C.A. and argued that the Claimant absconded from his employment after the one week suspension without tendering the two weeks’ notice or payment of the two weeks’ salary in lieu of notice to the Defendant and had thus breached the terms of the employment contract. Citing the cases of OFORISHE v. NIG. GAS CO. LTD (2007) 50 WRN S.C; DAODU v. UBA (2004) 29 WRN C.A. PER ADEKEYE JCA (PP. 68 – 69) LINEA 40 – 5.

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Counsel finally argued that EXHIBIT CW1 given to the Claimant by the Defendant clearly states how the relationship should be governed and determined.

In arguing issue number two, learned Counsel contented that the Claimant, being an officer responsible for monitoring the generating set of the Defendant, neglected his responsibility not to act at the right time. Counsel also referred this court to the evidence of the Claimant during cross examination and also the case of OKWEJI MINOR v. GBAKEJI (2008) 17 WRN.

Learned Counsel stated that the Claimant failed in his duty to attend to the generator that made a sustained sound of about 30 minutes before it eventually got knocked and that the sound of the generator attracted the attention of some persons including the supervisor, yet the Claimant was nowhere to be found and it was obvious that the Defendant was not at his duty post but had gone on a frolic of his own, hence the suspension of the Claimant for a period of one week after which he failed to resume work.

Counsel stated finally that EXHIBIT D shows the Claimant’s salary before he absconded from work and therefore urged this court to dismiss this case with substantial cost in favour of the Defendant.

THE SUBMISSIONS OF THE CLAIMANT

Learned Counsel for the claimant distilled three (3) issues for determination, thus:

1.     Whether the Claimant is still an employee of the Defendant.

2.     If the answer to issue (1) is in the affirmative, whether the Claimant is entitled to be paid his monthly salary and other entitlements until his appointment is lawfully terminated.

3.     Whether the Defendant/Counter-Claimant has proved its Counter-claim in this suit.

On issue 1, that is Whether the Claimant is still an employee of the Defendant. Counsel for the claimant argued that the Claimant has neither been recalled from suspension, nor has his employment with the Defendant been terminated. Counsel referred this court to the cases of LONGE V. FBN. PLC (2010) 6 NWLR (PT. 1189) 1 S; MOBIL PRODUCING NIG. UNLTD vs. UDO 2009 All FWLR Pt. 482 1171 at 1224; AKINYANJU V. UNIILORIN (2005) 7 NWLR (PT.923) 87; SPDC NIG LTD vs. EMEHURU 2007 All FWLR Pt. 381 1694 at 1718 and also the Judgment of this Court, in SUIT NO:

NICN/EN/105/2013, MR. VICTOR ENYIDEDE VS. ROCHE CONSTRUCTION NIGERIA LIMITED. Counsel also referred this court to the evidence of the Defendant’s only witness (DW1) under cross-examined on the issue of suspension and termination of the Claimant’s employment.

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Counsel argued that assuming without conceding the Claimant’s oral suspension was for one week, the Defendant had all the liberty, freedom and authority to have terminated the Claimant’s appointment upon his failure to resume duties at the expiration of the one week period of suspension but the Defendant failed and or neglected to do so in spite of being reminded by Counsel to the Claimant in Exhibit C2. Counsel went on to argue that the effect of this failure is that as at the close of trial and up till this day, there is no oral or documentary evidence before this Court showing that the Claimant’s appointment with the Defendant has been terminated. Counsel therefore urged this court to hold that the Claimant’s employment with the defendant still subsists. He referred this court to the case of MOBIL PRODUCING NIG. UNLTD vs. UDO (2009) All FWLR (Pt. 482) 1171 at PAGE 1224. Counsel further argued that suspension does not amount to termination of employment. Thus, an employee on suspension is nonetheless an employee until terminated. Counsel submitted that the Claimant’s appointment having not been terminated whether orally or in writing, the Claimant is still an employee of the Defendant and therefore urged this Court to so hold and resolve issue (1) in favour of the Claimant.

On issue number two, that is Whether the Claimant is entitled to be paid his monthly salary and other entitlements until his appointment is lawfully terminated. Learned Counsel contended that the claimant is entitled to be paid his monthly salary/wages and other entitlements by the defendant until his appointment is lawfully terminated. Counsel submitted that if this court finds that the Claimant’s appointment still subsists and has not been terminated, it follows therefore that the Claimant is entitled to be paid his salary from December 2016 until judgment is delivered in this case. Counsel therefore urged this court to so hold and resolve issue 2 in favour of the claimant.

Learned counsel stated that the defendant in response to the Claimant’s Notice to produce its Wages and Salaries Book for the Court to confirm the actual salary and allowances of the Claimant produced Exhibit D1, which is a photocopy of a document said to be the register usually signed by the employees when they receive their monthly salaries, that the said document only indicated the sum of Twenty Five Thousand Naira only as Salary, and no other document was produced showing the allowances collected and signed for by the employees including the Claimant. Learned Counsel therefore urged this court to invoke the presumption under Section 167(d) of the Evidence Act 2011 against the Defendant for failure to produce a document in its possession knowing fully well that if the document were produced, its content would be against its interest. In urging the above position of law, learned Counsel relied on the cases of NWEKE V. STATE (2017) 15 NWLR (Pt. 1587) 120 at 140 ; INUWA V. BAYERO UNIVERSITY KANO & ANOR (2016) LPELR-41615 (CA). Counsel therefore, urged this court to hold that the non-production by the Defendant of the register showing the allowances received by the Claimant,

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which document, if produced, would have confirmed that the total sum due to the Claimant as monthly salary and allowances is Forty Thousand, Six Hundred Naira (N40, 600) and not Twenty Five Thousand Naira (N25,000) should be resolved against the Defendant.

Counsel went on to submit that in the event this Court decides that the Claimant has not proved that his total monthly salary and allowances is N40, 600(Forty Thousand, Six Hundred Naira), this court should adopt the sum of N25, 000 (Twenty Five Thousand Naira) admitted by the Defendant as the Claimant’s monthly salary in calculating the amount due to the Claimant from the month of his suspension (December 2016) until judgment is delivered in this suit.

On issue 3, that is whether the Defendant/Counter-Claimant has proved its Counter-Claim. Learned Counsel submitted that a Counter-claim is a separate, distinct and independent action, and is subject to the same rules of pleadings and standard of proof as the main action. In other words, all the rules of pleadings and the evidential principle that he who alleges must provide evidence to proof his allegations as averred in the main action are equally applicable to a counter-claim. He relied on the case of ATIBA IYALAMU SAVINGS & LOANS LTD. V. SUBERU & ANOR, (2018) LPELR-44069 (SC).

Counsel further submitted that where facts are pleaded, and those facts are denied by the other party, the onus of proof rests on he who alleges those facts to establish same by credible evidence. Counsel relied on the case of AJUWON V. AKANNI & ORS (1993) LPELR-311 (SC), or (1993) 9 NWLR (PT. 316) 182.

Learned Counsel argued that averments in the counter-claim that have not been proved by evidence are deemed abandoned. Counsel referred this court to the case of LAWSON V. AFANI CONTINENTAL CO. NIG. LTD. & ANOR (2002) 2 NWLR (Pt.752) 585 at 624-625.

Counsel argued that the only document tendered by the Defendant/Counter-claimant during trial was Exhibit D1 which shows that the Claimant’s monthly salary was Twenty Five Thousand Naira and not Forty Thousand, Six Hundred Naira and that there was no piece of evidence in support of the counter-claim. To the Claimant, the Counter-claim was therefore no more than a mere retaliatory action against the Claimant’s action, and intended to intimidate the Claimant into abandoning his claim against the Defendant.

Counsel finally urged this Court to hold that the Defendant/Counter-claimant’s allegation of facts forming the basis of its Counter-claim having been expressly denied by the Claimant, and in the absence of any evidence tendered in proof of

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those facts by the Counter-claimant, are deemed abandoned and the Counter-claim should accordingly be dismissed.

COURT’S DECISION

After careful consideration of the processes filed, the evidence and submissions of learned Counsel in the final addresses, two issues have presented themselves for determination thus:

1.     Whether the Claimant has proved his entitlement to the grant of any or all the reliefs sought.

2.     Whether the Defendant has proved its counterclaim against the Claimant.

The Claimant’s case is founded on indefinite suspension based upon which he claims for two declaratory reliefs and two orders. The Claimant claims for a declaration to the effect that he is still an employee of the defendant and thus entitled to his salaries and other entitlements until his employment is lawfully determined. It is trite law that a claimant’s case would necessary be circumscribed by the reliefs. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47.

The Claimant averred at paragraphs 7 – 15 of the statement of facts that on December 23^rd 2016, he reported at work for the evening shift around 7pm to relieve the person who was on morning shift and at that time the defendant’s operation was running on the main standby generator, that at 7:30 pm the generator stopped working after making some strange sound, that when he went to find out he noticed that the oil seal of the generator had come off and the engine oil was dropping on the floor, that he quickly run and put on the small generator which was some meters away, that his supervisor (Papa Lewis) was also there to make enquiry, that the following morning, the Claimant was informed by his supervisor that the management has decided to place him on suspension with immediate effect until further notice. Claimant further averred that one of his colleagues (Yinka) informed him via phone that the Supervisor said that the Claimant should not bother to come, that he went to the Defendant’s company on December 26 to collect his December salary but the Cashier told him that thre was instruction from the Management not to pay him salary, that he went to the to the Defendant in January and February 2017 but was told in the first visit that his matter was not settled and on the second time the Defendant’s MD told him that nothing could be done until the Supervisor is back from abroad.

These averments are in exact terms with the depositions made by the Claimant at paragraphs 6-14 of the written statement on oath. Under cross examination, the Claimant admitted that he was on duty when the Defendant’s generator

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developed fault, that it took him five minutes to get to the generator house because he had to remove load from the changeover, that he was asked to stop going to work after the incident by the Defendant’s supervisor until further notice.

Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Longe v. F.B.N Plc (2010) LPELR-1793, (Pp. 80-81, paras. G-B) (SC).

Now, the fact that the Claimant was orally suspended from work by the Defendant’s Supervisor is not in dispute, the issue in dispute is the duration of the suspension. While the Claimant alleged that the suspension was indefinite, the Defendant’s contention is that the suspension was for one week. The Claimant averred at paragraph 15 of his written deposition that at the end of March 2017, when he did not receive any communication from the Defendant, he instructed his lawyer to write Exhibit CWC by which the Defendant was demanded to either recall the Claimant from suspension or to formally terminate the Claimant’s appointment and pay his entitlements. The Defendant responded to the said letter vide Exhibit CWD in which it stated that the Claimant was placed on suspension for only one week but because he knew the magnitude of the damage he caused, he decided to stay away . The Claimant then wrote Exhibit CWE in which he debunked all the allegations made by the Defendant in Exhibit CWD and reiterated that the Defendant placed him on indefinite suspension. Confronted with these conflicting stories and in the absence of any documentary evidence to ascertain the duration of the suspension, this Court is left with no option but to subject the parties ipse dexit alongside the correspondences between them to the test of probability, taking in to account the settled principle of law that where there is need for further proof “a mere ipse dexit” may not be enough. See DEBS V. CENCO LTD (1986) 3 NWLR (Pt. 32) 846 at 853 =-854 PARAS. H-A.

Now, the Claimant after waiting for over three months, wrote Exhibit CWC to the Defendant to demand for his recall from suspension or termination of his appointment and for the settlement of his outstanding entitlements, if the suspension was for one week, the Claimant wouldn’t have written Exhibit CWC, the Defendant denied the allegation of indefinite suspension in Exhibit CWD but instead of recalling the Claimant or terminating his appointment when the Claimant reiterated his position vide Exhibit CWE, the Defendant remained calmed and refuse to react. If it was true that the Claimant’ s suspension was only for one week it behooves on the Defendant to respond to the Claimant’s

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request as further stated in Exhibit CWE. Placing the above stories on the imaginary scale of justice, I am inclined to believe with the Claimant’s contention that the suspension was indefinite, I find and I so hold.

The next question is to determine whether the indefinite suspension of the Claimant is justified in the circumstance of this case. The position of the law regarding suspension was fully considered by this Court in Mr. Adebayo Gbolahan v. Coscharis Group Suit No. NICN/LA/409/2014 the judgment of which was delivered on February 16^th 2018 where my learned brother Kanyip J. as he then was stated thus:

A statement of principles regarding suspension was aptly captured by this Court in Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited [2015] 62 NLLR Pt. 216 40 in the following words:

This Court, in Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, relying on ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.

523)    169 CA, held that “a person unlawfully suspended from work can seek redress in the Court and claim his full salary”. The yardstick is whether the suspension is necessary, reasonable, valid and hence lawful…

………………………

…an exposition of the law as to suspension may not be out of place. The learned author, EM Rao, in the book, Industrial Jurisprudence: A Critical Commentary (LexisNexis Butterworths: New Delhi, India), 2008 variously discussed the ambit of the law relating to suspension. For instance, the learned author first acknowledged the right of the employer to suspend; and then at page 116, relying on Hotel Imperial v. Hotel Workers’ Union [1995] I LLJ 544 (SC), the learned author asserts that in the regulation of an employment relationship, the power to suspend an employee is not an implied term in an ordinary contract between an employer and an employee. The Supreme Court in Longe v. First Bank of Nigeria Plc (supra) acknowledged this much too. Such a power can only be the creation of either a statute governing the contract or of an express term in the contract itself; and, in the absence of it, the employer would have no power to suspend an employee and, if he does, he will have to pay wages during the so-called period of suspension. To the learned author at page 178, relying on Khem Chand v. Union of India [1963] I LLJ 665 (SC), suspension either pending enquiry or as a punishment is not termination. See also Longe v. First Bank of Nigeria Plc (supra). That even though an order of suspension affects the employee injuriously, he continues to be in service. The learned author continues at pages 236 –

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237 that there are two types of suspension: ‘suspension pending enquiry’ and ‘suspension as a punishment’. Suspension pending enquiry is not a punishment per se, for if the employee is not found guilty, the suspension has to be lifted and he has to be paid to full wages for the period, as if he was never suspended. On the other hand, suspension imposed on the establishment of guilt is in the nature of punishment; it can have adverse impact on the career prospects of the employee within the organization. The learned author then concludes the discourse that the power of suspension is not an unfettered power; the power has to be exercised sparingly, reasonably and on good grounds. The Nigerian case of Udemah v. Nig. Coal Corp. [1991] 3 NWLR (Pt. 180) 477 CA also acknowledged this state of the law holding that an employer has the right to suspend an employee for the purpose of investigation or disciplinary action. The case went on that in doing that, the employer must comply with any existing regulation governing such action.

The point to note here is that in the regulation of an employment relationship, the power to suspend an employee is not an implied term in an ordinary contract between an employer and an employee; such a power can only be the creation of either a statute governing the contract or of an express term in the contract itself.

In the instant case there is nothing placed before this Court by the Defendant to show that the agreement between the parties provides for the power of the Defendant to suspend the Claimant and in view of the settled principle of law that a person unlawfully suspended from work can seek redress in Court and claim his full salary, I find that reliefs 1 and 2 are grantable and I so hold.

Relief three is for the sum of N 406,000.00 being the total sum of the Claimant’s salary from December 2016 to September 2017 when this suit was filed at the rate of N40, 600.00 per month. The averment regarding this relief are contained at paragraphs 6, 22 and 23 of the statement of facts which are in the same terms as paragraphs 5, 21 and 22 of the Claimant’s written statement on oath. The Claimant gave notice to the Defendant to produce its salaries and wages book from January to December 2016 at paragraph 6 of the Claimant’s reply to the statement of defence. Under cross examination, Claimant stated that his salary was N40, 600 and that he received salaries by way of table payment. Now, the Claimant did not tender any document in proof of these averments, but he gave notice to the Defendant to produce the salaries and wages book which I think will show the amount being paid to the Claimant as salary/wages.

The Defendant denied this claim at paragraph 9 of the statement of defence but it admitted that the Claimant’s salary as at December 2016 was the sum of N25, 000 per month. Under cross examination, the Defendant’s witness averred that

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the Claimant’s salary was N25, 000. 00, that Exhibit D is the salaries and wages book the Claimant gave notice to the Defendant to produce.

Now, Exhibit D was tendered by the Defendant, it consist of four sheets of paper stapled together, it doesn’t look like a book, it bears no heading, it is undated and unsigned, these robs it of the requirements for admissibility, this being the case, I find that exhibit D is not admissible; it is accordingly expunged from the record and discountenanced for the purpose of this judgment. It is the law that unsigned and undated document has no evidential value. See GLOBAL SOAPS & DETERGENT IND. LTD v. NAFDAC (2011) All FWLR (Pt. 599) 1025 @ 1047." (P. 23, paras. B-C).

It follows therefore from the foregoing, that the Claimant’s evidence regarding the amount of his monthly salary/wages is more believable than that of the Defendant and this being the case, I find that relief three is grantable and I so hold.

Relief 4 is for the sum of N50,000.00 or any other sum as the Court may award.

I shall return to the issue of cost at the end of this Judgment.

Turning to the Defendant’s Counterclaim against the Claimant for the sum of N8,000,000.00 being the cost of fixing and repairing the Counterclaimant’s generator which got damaged in June 2016 and December 2016 due to the negligence and penchant attitude of the Defendant to counterclaim to work, the sum of N250,000.00 being the cost of the action and the sum of N1,000,000.00 as damages for the losses and inconveniences suffered by the Counterclaimant due to the negligence of the Defendant to the counterclaim.

For all intents and purposes a counterclaim is a live action and all the requirements for proof of facts affect it as they affect the suit within which it was brought. A counterclaimant must with equal force establish it on the strength of evidence in support of the pleadings upon which it was brought. It can only succeed on its strength not on the weakness of any defence against it. See UTSU v. UJU (2011) LPELR-3980(CA) (P. 17, paras. E-G).

Now, the counterclaim is in the nature of special damages, it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly. See UDOFIA v. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS. (2011) LPELR-4055 (CA). Other than the averments in in the statement of defence/counterclaim which were reproduced in the Defendant’s witness statement on oath, the Defendant/Counterclaimant did not place any evidence in proof of the counterclaim before this Court. Even in the pleadings, the Counterclaimant has failed to give the particulars of the amount being Claimed as special damages. The testimony of the Defendant’s witness has also been discredited under cross examination, he said under cross

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