IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/YL/10/2015
DATE: JUNE 13 2018
BETWEEN:
WEST AFRICAN COTTON CO. LIMITED – CLAIMANT
AND
OSCAR AMOS – DEFENDANT/
COUNTER-CLAIMANT
REPRESENTATION:
E. O .Dania, Esq- for the Claimant;
M.P Danji, Esq – for the Defendant.
JUDGMENT
The Claimant commenced this Suit at the then Yola Registry of this Court (now Yola Judicial Division) vide a Complaint filed on 9th October 2015, together with other frontloaded court processes and Application for Summary Judgment, against the Defendant, its erstwhile Employee, for recovery of certain sums of money alleged to have been embezzled/misappropriated by the Defendant while in service as the Company Accountant in its Yola Office.
The Claimant sought for the following reliefs as per Paragraph 14 (a-e) of the
Claimant’s Statement of Facts Establishing the Cause of Action dated and filed on 9th
October 2015:
“(a) The sum of N812, 518.40 (Eight Hundred and Twelve Thousand, Five
Hundred and Eighteen Naira, Forty kobo) being the total amount of money misappropriated/embezzled by the defendant when he was the accountant to the Yola Branch of the claimant and for which the defendant has refused, failed and/or neglected to pay inspite of repeated demands.
b. The sum of N120, 000.00 (one Hundred and Twenty Thousand naira) being the cost the claimant incurred to engage the services of solicitors to prosecute this case.
c. 20% interest per annum on the N812, 518.40 (eight Hundred and Twelve Thousand, Five Hundred and Eighteen naira, Forty kobo) calculated from 9th January, 2014 to the date of judgment.
d. 20% interest per annum on the judgment sum till final liquidation.
e. Cost of this suit”.
Upon being served with the processes, the Defendant reacted with a Statement of Defence and Counter-Claim both dated 30th October 2015 and filed on 2nd November 2015, as well as Counter-Affidavit and Written Address dated and filed on 2nd November 2015, opposing the hearing of the matter under Summary Judgment procedure of the court.
After hearing of the Application for Summary Judgment, in a considered Ruling delivered on 18th May 2017 by my Lord, R.H Gwandu, J of the Jos Division, the Application was declined. The matter thereafter proceeded under the general cause list, and the Claimant relied on its Statement of Facts dated and filed on 9th October 2015, while the Defendant relied on his Amended Statement of Defence and Amended Counter-Claim dated 26th May 2016, wherein he vehemently denied the allegation/claims and also counter-claimed against the Claimant, his former Employer. His reliefs in the Counter-Claim are as follows:
“(a) The sum of N450, 000.00 the total amount the counter claimant should have received as salary from the defendant from February to October 2015.
(b) The sum of N50, 000.00 monthly from the month of November 2015 till the counter claimant’s appointment is lawfully terminated
(c) 20% annual interest on the accrued salary till its (sic) fully liquidated by the defendant
(d) The sum of N900, 000.00 as general damages for the hardship and psychological traumas caused the counterclaimant by the action of the defendant.
(e) The cost of this litigation.”
At the close of pleadings, issues were joined by the parties on material facts of the case, and after several proceedings at Jos Division, the matter was transferred to Yola Division. The matter thereafter proceeded to trial on 9th November 2017, after it came up for mention on 11th October 2017, the same day the Yola Division started sitting.
At the Trial, the Claimant opened its case and testified through its sole Witness (CW), Usman Bello, the Assistant Branch Manager (Procurement) Yola Branch of the Claimant company. The CW tendered three documents admitted in evidence and marked as ‘Exhibits CO1, CO2 and CO3’, described as follows: Undertaking dated 07/02/15-exh.CO1, Appeal for Payment of N812, 518.40 dated 11th February 2015- exh CO2 and Application for (7) days Casual Leave dated 12/02/2015- exh.CO3. CW adopted his Witness Statement on Oath sworn to on 9th October 2015 as his evidence-in-chief and urged the court to grant the Claimant’s reliefs.
From the pleadings and testimonies of the CW, the Claimant’s case is that the Defendant was employed by the Claimant company as an Accountant and deployed to be in charge of Accounts unit of its Yola office since January 2008, and in the course of his employment, the Defendant was alleged to have embezzled/misappropriated the Claimant’s funds. Upon discovery and being confronted with this act, sometime in February 2015, the Defendant made some admissions in writing and undertook to repay the missing sums, totaling N812, 518.40. Nevertheless, the Defendant reneged on his promise and voluntarily abandoned his duty post for over one year, prompting the Claimant to replace him and filed this suit to recover the said sum and other reliefs thereto.
At the resumed trial on 7th December 2017, the Defendant/Counter-Claimant on his part, testified for himself as DW. He adopted his Written Statement on Oath sworn to on 31st May 2016 as his evidence-in-chief and tendered 7 documents admitted in evidence and marked as ‘Exhibits DO1, DO2, DO3, DO4, DO5, DO6 and DO7’, which were described as follows: Offer of Appointment dated 6th January 2008- exh.DO1, Confirmation of Appointment dated October 8 2009- exh.DO2, CHI LIMITED Vendor Statement(8/1/2013-12/20/2014)- exh.DO3, Withdrawal of Undertaking and Appeal Letter dated 17/06/15- exh.DO4, A Reminder on Withdrawal of Undertaking and Appeal Letter dated 03/08/15- exh.DO5, 3sets of Nigerian Postal Service Certificate of Posting – exh,DO6 and A Second Reminder on Withdrawal of Undertaking and Appeal Letter dated 10/08/15- exh.DO7’.
The case of the Defendant/Counter-Claimant, from the pleadings and the DW’s testimonies at the trial, is that, while acknowledging the incident of the alleged misappropriated sum of N812, 518.40 and admitting writing an Undertaking to pay up the said sum, contented that he was pressured by the Claimant company’s Manager, his supervisor, upon which he asked for casual leave to enable him source for funds to replace the lost sum. And that when he returned to office after the expiration of the casual leave on 28th February 2015, but without the sum, he was orally directed to stay away from office until the issue is resolved by the Claimant’s head office in Lagos, of which he complied with.
DW testified that he later withdrew the Undertaking by a Withdrawal of Undertaking and Appeal Letter dated 17/06/15-exh.DO4, and despite subsequent reminder letters ‘exh.DO5 and exh.DO7’, which the Claimant ignored, he was not recalled to office. He further narrated that on 23rd March 2015, the Claimant company’s Branch Manager called him on phone and directed him to call the Administrative Manager. When he called, the Administrative Manager scheduled a meeting for both of them to meet somewhere in Taraba State, so that he would sign for and collect his letter of termination. However, when both of them met in Taraba, he was handed over to the Police who detained him for 3 days, and was only released by the intervention of his counsel, and the Claimant thereafter instituted this suit for recovery of the said missing fund among other reliefs claimed.
At the close of trial on 7th December 2017, the matter was adjourned for filing and exchange of Final Written Addresses of both Parties’ Counsel.
At the resumed proceedings of 15th March 2015, both Counsel adopted their respective Final Written Addresses and impressed on the court to uphold their submissions for and against the material issues in dispute. Judgment was thereafter reserved.
COUNSEL’S SUBMISSIONS
Submissions by Defendant/Counter-Claimant’s Counsel:
M.M Tumba, Esq, learned counsel for the Defendant/Counter-Claimant filed and served Defendant/Counter-Claimant’s Final Written Address dated and filed on 28th December 2017 and Defendant’s Reply on Point of Law dated and filed on 14th March 2018. In his said Final Written Address, counsel formulated three (3) issues for determination, viz:
i. Whether the Hon. Court has the jurisdiction to entertain the claimant’s claim considering the statement of facts establishing cause of action and the relief sought by the claimant?
ii. Whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour?
iii.Whether the defendant/counter claimant is not in law a bonafied employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment?
On issue (i) – Whether the Hon. Court has the jurisdiction to entertain the claimant’s claim considering the statement of facts establishing cause of action and the relief sought by the claimant: Relying on Multi-Purpose Ventures Ltd. v. A-G Rivers State (1977) 9 NWLR PT 522 PG. 645 [wrong citation], Onyemucheya v. Military Administrator of Imo State [1997] 1 NWLR (PT, 482) P. 429 and Madukolu v. Nkemdilim (1962) 3 SCWLR Pg. 34 [wrong citation], counsel argued that a critical look at the claim before the court determines whether the court has jurisdiction or otherwise.
Counsel submitted that a cursory look at the Claimant’s claim and the Statement of Facts Establishing the Cause of Action would reveal that what is covered is a claim of money alleged to have been misappropriated or embezzled, an interest thereon and solicitors’ fee. And that Section 254 C(1)–M (2)-(6) of the Constitution of the Federal Republic of Nigerian (Third Alteration )Act, 2010, has clearly spelt out the jurisdiction of the court, and the Claimant’s claim before the court is not such that can be entertained by this court. He urged the court to resolve this issue in favour of the Defendant, dismiss the Claimant’s claim and allow the Defendant’s Counter claim in accordance with the provision of Or. 32 Rule 7 NICN (Civil Procedure) Rules 2017.
On issue (ii) – Whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour: It is the Counsel’s contention that since the law is that ‘he who asserts must proof’ as stated in Sections 131-133 of the evidence Act, 2011[erroneously written ‘as amended], the Claimant asserted vehemently that the sum of N812,518.40 was allegedly misappropriated or embezzled by the Defendant, but that the Claimant has not placed before the court materials facts by way of documentary evidence to clearly show how the missing amount was arrived at.
Counsel further contended that the Claimant who claimed that an audit has been carried out did not deem it fit to make available to the court the authentic audit report to buttress its point. And to make the matter worst, the Defendant did put the Claimant on ‘Notice to Produce’ exhibit DO3 which is the Yola branch operation statement of account maintained by its head office in Lagos but that the Claimant blatantly refused, failed and /or neglected to do so.
Citing Usman v. New Nigeria Bank Plc (2013) LPELR 2040 (CA), which held that: “The Court cannot act on evidence founded on hearsay and speculation, no matter how sordid it sounds to win the sympathy”, counsel argued that it is the law that document in the possession of an adversary who fails to produce same knows the document if produced will be against him. He stated that during cross-examination at the trial, CW [erroneously written as PW1] further testified that he did not know the accountant that visited the Claimant’s Yola branch office. Counsel further submitted that the Defendant told the court why he withdrew exhibits CO1 and CO2 [erroneously written as CW1 and CW2] because he was under threat, intense pressure and the content dictated to him, and while exh.CO2 written on 17/01/2017 [error] shows the Defendant requesting for 10 days, exh.CO3 written the very next day shows the request of 7 days, showing he was under pressure.
To counsel, the Defendant has shown through exhibit DO3 why the errors in the figures and further buttressed in exhibits DO4 and DO5 which the Claimant refused to address, having known the true position but bent on treating and intimidating the Defendant with arrest and could not prosecute because the facts alleged does not exist.
On issue (iii) –Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment: Counsel submitted that the Defendant/Counter-Claimant is a bonafide employee of the Claimant having been issued with exhibit DO1 by the Claimant and subsequently issued with exhibit DO2. Referring to Paragraph 8 of exhibit DO1 which is the appointment letter, counsel argued that the exhibit DO1 has clearly spelt out the procedure of how the Defendant/Counter-Claimant employment could be terminated, when it stated thus: “After confirmation either party shall be required to give 30 days notice to terminate this contract or payment in lieu of notice”.
It is counsel’s further submission that the mere fact that the Claimant’s Yola Branch Manager verbally told the Defendant/Counter-Claimant to stop coming to work and the subsequent threat and intimidation through the use of the Police Force to arrest, handcuff and detain him does not that amount to 30 days notice of termination of their contract or payment in lieu of notice as a condition for determination of the Claimant’s contract of employment with the Defendant/Counter-Claimant. More so as the Claimant’s sole witness agreed that the Defendant/Counter-Claimant’s employment with the claimant has not been terminated during his cross-examination.
Counsel finally submitted the Claimant’s Yola Branch Manager was fully aware of this position and that was why he lured the Defendant/Counter-Claimant with a bait of “signing his termination letter” only to get him arrested by the Police and subsequently detained him for three days, and relied on the Supreme Court case of G.S. Pascutt to (Toadding Com-Esq) v. Adecentrol Nig. Ltd. [1997] II NWLR (Pt. 529) 467 to the effect that where evidence given by a Party to any proceedings was not challenged by the other party who had opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it.
Submissions by Claimant’s Counsel:
On his part, learned Claimant’s counsel, D.S Adebola, Esq., filed and served the Claimant’s Final Written Address dated 19th January 2018 and filed on 25th January 2018, wherein he adopted all the issues formulated for
determination in the Defendant/Counter-Claimant’s Final Written Address, and canvassed his own version of arguments on the three issues raised seriatim:
i. Whether the Hon. Court has the jurisdiction to entertain the claimant’s claim considering the statement of facts establishing cause of action and the relief sought by the claimant?
ii. Whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour?
iii. Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment?
On issue (i) – Whether the Hon. Court has the jurisdiction to entertain the claimant’s claim considering the statement of facts establishing cause of action and the relief sought by the claimant: Learned counsel submitted that it is the Claimant’s Statement of Facts Establishing the Cause of Action that the court will diagnose to determine whether or not it is clothed with the requisite jurisdiction to entertain the subject matter of this case. On this, counsel cited and relied on Nsirim v. Amadi (2016) All FWLR (Pt. 825) 194 at 199,Pparas. 8-C; Akpamgbo-Okadigbo v. Chidi (2015) All FWLR (Pt.781) 1400 @ 1414 Paras. F-G; Salik v. Idris (2015) All FWLR (Pt.790) 1307 at 1315paras. D-E; Magaji v. Matari (2000) F.W.L.R. (Pt.18) 237 at 241, Paras B-C.
Counsel explained that by the provisions of Section 254C(1) (a) of the Constitution of Federal Republic of Nigeria (as Amended), the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. He submitted that by the express provisions of the Section 254 C(1) (a) of the said Constitution, the claims for which the National Industrial Court has exclusive jurisdiction is express, as the court has jurisdiction over matters relating to employment and all matters arising from work place.
Thus, civil matters and causes that arise in an employer/employee relationship are within the purview and precinct of the jurisdiction of the National Industrial Court, counsel posited. And that in the instant case, the Defendant was employed by the Claimant as an Accountant, and in the course of his employment, the Defendant embezzled/ misappropriated the Claimant’s funds which necessitated this case, by virtue of which, it is only this court that can determine same.
Concluding on this issue, learned Claimant’s counsel, posed the question- Did the claimant’s claims against the defendant arise as a result of a contract of employment? Proffering an answer, he submitted that from the evidence of the witnesses, the exhibits tendered and Claimant’s statement of facts establishing the cause of action, the cause of action arose in the course of employment at work place. He refers to Paragraphs 4-11 of the Witness Statement on Oath of Usman Y. Bello (CW) and Paragraphs 4-18 of the Witness Statement on Oath of Oscar Amos (Defendant).
On issue (ii) – Whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour: It is the counsel’s contention that the Claimant discharged the onus placed on it in proof of its case. Counsel submitted that the issue under contention before this court is the misappropriation of the sum of N812, 518.40 by the Defendant. That evidence abounds and remains unchallenged before this court that the Defendant was the Claimant’s Accountant, which fact was admitted by the Defendant. And that in the course of cross-examination, the Defendant equally admitted that he was in charge of the Claimant’s finances at the Yola branch where he served as the Accountant.
Counsel further contended that from the evidence adduced at the trial, it is not in dispute that money was misappropriated and that the Defendant admitted this fact, more so, with his own hand written note- exhibits CO1-CO3. That the Defendant not only signed the exhibits but that he also voluntarily wrote exhibits CO1, CO2 and CO3 and addressed same to the Defendant’s Branch Manager, wherein he admitted misappropriating the Defendant’s said funds. And that the Defendant did not stop at that, but also calculated how the misappropriated sum was arrived at and then signed these documents.
According to counsel, these acts of the Defendant signify that he is indeed bound by the contents of exhibits CO1, CO2 and CO3.And that the Defendant having admitted and taken responsibility for the misappropriated sum, which is the Claimant’s claim before this court, the Claimant is entitled to all the reliefs claimed. Counsel then cited and relied on the Supreme Court of Oseni v. Bajulu (2010) All FWLR (Pt. 511) 813 at 817, Paras. E-B, to the effect that: “What is admitted need no further proof. After all, an admission is relevant against the party who made it or his agent“.
Counsel further submitted that where there is a breach of undertaking, as in the instant case, the Claimant who sues need only to establish the promise in the undertaking. He cited and relied on Unity Bank Pic v. Automotive C.N Ltd (2012) All FWLR (Pt. 610) 1265 at 1270-171, Paras. E-B, wherein the court held that: “An agreement and an undertaking can be enforced but the manner of enforcement differs slightly. An agreement may be sued over in contractual terms, and in that regard, there is need to prove offer, acceptance, consideration, detrimental reliance where
one party detrimentally relied on it, whereas, a breached undertaking can be sued for under elements of promise, i.e. there is need to prove the promise and reasonable detrimental reliance”.
Counsel further argued that the issue of withdrawing of exhibits C01, C02 and C03 as being canvassed by the defendant in this case is an afterthought. He stressed that it is pertinent to point it out that the defendant is an accountant, hence a professional. And that by virtue of his qualification, the Defendant is an educated person, and did not write exhibits CO1, CO2 and CO3 at gun point, He cited and relied on Iyeghe v. A.B.U. (2016) All FWLR (Pt. 851) 1377 @ 1386 and Kachia v. Hadi (2012) All FWLR (Pt. 650) 1403 @ 1408, Paras. B-F, to contend that duress entails physical threat of harm and that the person alleging doing an act under duress has an onus to prove how it happened.
Counsel contended that the Defendant has completely failed to prove that the contents of exhibits CO1, CO2 and CO3 were dictated to him, and that there is no evidence of coercion, force, threat to injury or constraint of any adduced by the Defendant before this court. And as such the admissions made by the Defendant that he misappropriated the Claimant’s fund, was done voluntarily and that a person cannot withdraw an undertaking without the approval of the other party.
Learned Claimant’s counsel urged the court to so hold and relied on Joseph v. Kwara State Poly (2014) All FWLR (Pt. 750) 1215 @ 1217, Paras. H-A, which held that: “A party who executes agreement with other, with his eye wide open, and after taken advantage of its benefits with full knowledge of its contents cannot belatedly go to court to castigate its gaminess (sic). Even a court of equity cannot come to the aid of such a party.”
On the issue of Exhibit DO3 (which is alleged to be the Claimant’s Statement of Account). Counsel argued that a quick glance of the said exhibit reveals that the document is neither dated nor signed. He submitted that the law is trite that an unsigned and undated document is evidentially valueless. He cited and relied on Global Soap &Detergent Int. Ltd v. NAFDAC (2011) All FWLR (Pt. 599) 1025@ 1028, para. F and Nwancho v. Elem (2004) All FWLR (Pt.225) 93 @97, Para.O, to the effect that an unsigned and undated document is a worthless piece of paper that has no evidential value in law and such an unsigned document is no document.
On issue (iii) –Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment: Counsel contended that the employment of the Defendant is that of common law master-servant relationship and is not protected by Statutes, and so, specific performance cannot be ordered in favour of the Defendant. He cited and relied on C.B.N. v. Igwillo (2007) All FWLR (Pt.379) 1385 @ 1387, paras. B-C; Udoh v. C.S.C., AkwaIbom State (2014) All FWLR (Pt.716) 582 @584, paras.E-F; P.H.C.N. Plc. v. Offoelo (2013) All FWLR (Pt. 664) 1 @ 8, paras. C-E.
Counsel further argued that contract of service between the Claimant and the Defendant actually specified the issuing of 30 days notice to terminate the contract or payment in lieu of notice, but that the Defendant out of his volition, decided to abandon his duties, and thus had by, himself repudiated the contract of employment by abandoning his work since the expiration of the seven days leave granted him via exhibit CO3.
The Defendant by this act resigned his appointment voluntarily, counsel further submitted, relying on Yesufu v. Governor of Edo State (2001) All FWLR (Pt. 60) 1422 @ 1423-124, paras. E-A; Omidiora v. F.C.S.C (2008) All FWLR (Pt. 415) 1807 @1809, paras. E-F; Osagie v. N.N.B. Plc (2005) All FWLR (Pt. 257) 1485 @ 1488, paras. D-E; Iorzua v.Minister FCT (2004)All FWLR (Pt.197)1089@1091, Paras.G-A; Obo v. Comm. Of Education, Bendel State (2001) All FWLR (Pt.38)1226, to the effect that the act of abandoning work amounts to repudiation of the contract of employment.
Claimant’s Counsel finally submitted that the Defendant having by himself repudiated the contract of employment by abandoning his work cannot claim to be lawfully in the employment of the Claimant. And it is in evidence that when the Defendant abandoned his work another person was employed to replace him. And that the Defendant in the circumstance does not need a query which he claimed was not issued to him.
Reply on Point of Law by the Defendant/Counter-Claimant’s Counsel:
In the Defendant’s Reply on Point of Law dated and filed on 14th March 2018, filed in response to the Claimant’s Final Written Address dated 19th January and filed on 25th January 2018, learned Defendant/Counter-Claimant’s counsel reacted to certain legal issues arising from the Claimant’s said Final Written Address. The aspect relating to Counter-Claim would be restated when the Counter-Claim would be addressed later in the course of this Judgment. Three other issues were addressed in the said Reply-Issues of: Unsigned documents; Binding effect of a signed document and Claimant not being a creation of a Statute as to liability for unlawful termination.
On the issue of unsigned document (exh.DO3), which was contended by the Claimant’s counsel that the exh. DO3 not being a signed document is a worthless paper and inadmissible relying on Global Soap& Detergent Int. Ltd v. NAFDAC (2011) ALL FWLR (Pt.599) 1025 @ 1028, Para.F, learned Defendant’s Counsel, submitted that it cannot stand as the Claimant was served with ‘Notice to Produce’ the document but it refused to bring same to the proceedings in court. Counsel cited and relied on The People of Lagos State v. Umaru (2014) LPELR-SC455/2012 and Egwu v. Egwu [2007]1NWLR (Pt.1014) CA@ P.92 Paras. A-C, to the effect that such refusal to bring the document amounts to ‘withholding of evidence’, and such should be construed against it, since by such withholding of evidence, the document is presumed to be against the interest of the party withholding it- the Claimant.
On issue of binding effect of a signed document, learned Defendant’s counsel contended that the Claimant’s counsel heavily argued submission relying on a number of cases including Joseph v. Kwara State Poly (2014) ALL FWLR (Pt.750) 1215 @1217 Paras.H-A, that a party who signed a document agreed with the contents and is bound by such a document, cannot stand, in that the Court of Appeal in the case of S.T.B. Ltd v. Inter Drill Nig. Ltd (2007) ALL FWLR (Pt.366) 757 @ 773 Paras. D-E held thus: “in the absence of plea of non est factum or allegation of signing under duress, the mere fact of the signature of a person on a document makes the contents binding on him.’
Counsel contended that the Defendant cried out to the court that exhibit CO1, CO2 and CO3 were dictated to him and he was under duress when he wrote and signed those documents. He submitted that a holistic perusal of the cross -examination of DW (Oscar Amos) revealed how he has suffered under the Claimant when he was lured to meet with the Administrative Manger of the Claimant’s company to sign his termination letter and the Defendant was handcuffed, arrested and locked up for 3 days and abandoned by the Defendant at the police station. Counsel further submit that the defendant by letter and receipt of post which were tendered and marked as exhibits DO4, DO5 and DO6 clearly shows that the Defendant wrote withdrawal of exhibits CO1, CO2 and CO3 which were executed by duress. And that since that piece of evidence was not challenged, he urged the court to find and hold that exhibits CO1, CO2, CO3 were made under duress, citing and relying on Amayo v. Erimmingbovo (2006) LPELR SC. 323/2001, wherein the Supreme Court held that: ‘The position of the law as regards unchallenged evidence is as stated above for any such evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a judge.’
On the issue of the Claimant not being a creation of a Statute as to liability for unlawful termination, counsel disagreed with the Claimant’s counsel’s submission that claimant not being a creation of statute that the court will not enforce the specific performance of a mere contract of service or employment under common law. He cited and relied on Akinfe & Ors v. UBA Plc (2007) LPELR CA/L/113/2001, wherein the Court of Appeal held thus:
“In fact both at common law and even in this country the power to arbitrarily dismiss those in one’s employment is a power to exercise in a great degree unfortunately over a vast number of persons like the Artisans, the drivers, house helps and indeed the down trodden who are involved in menial duties usually do not have recourse or access to redress at law. Nevertheless, employer must observed and adhere to the conditions under which an employee is hired before such an employee could be fired, otherwise the employer can ipso facto be held liable for unlawful termination of the service of the employee.’
Referring to Paragraph 3 of the Defendant’s Witness Statement on Oath, counsel further contended and finally submitted that even though the Claimant is not a creation of statute but that does not in any way shield it from liability for wrongful termination of the employment, as there is evidence before the Court that the Defendant did not out of his volition abandon his duties but that he was asked not to come to work.
COURT’S DECISION
I have carefully followed the proceedings; keenly watched the Witnesses testify and noted their demeanors, as well as evaluated the evidence tendered as exhibits in the proceedings and have read and intensively reviewed the processes filed and exchanged by the parties and the submissions canvassed in the Final Written Addresses and Reply on Point of Law filed and exchanged by respective Counsel in advancing the case of the parties.
Both Counsel adopted common issues formulated for determination in the Defendant/Counter-Claimant’s Final Written Address, and canvassed their respective versions of arguments on the three issues raised as well as the position taken on the Counter-Claim.
I also adopt the same issues and would proceed to determine them for the resolutions of the contentions in dispute by the parties, and thereafter take my own position in respect of arguments canvassed by the respective counsel in determining the Counter-Claim.
The issues raised for determination are:
i. Whether the Hon. Court has the jurisdiction to entertain the claimant’s claim considering the statement of facts establishing cause of action and the relief sought by the claimant?
ii.Whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour?
ii.Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment?
The Issue (i) deals with the challenge of the substantive jurisdiction of this court to hear and determine the subject matter of this suit. Whereas the Defendant’s counsel contended that the subject matter of this suit is not within the ambit of jurisdictional competence of this court, the Claimant’s counsel thought otherwise, and held the view that this court has ample jurisdiction to hear and determine the subject matter of the instant case, being a matter that arose at work place concerning alleged misappropriation of fund in the course of employment.
There is no doubt that the issue bordering on jurisdiction of court is a radical one and always occupies a pride of place in the proceedings towards addressing of issues raised for determination for effectual resolution of the matter in dispute between the parties before the court. For if it comes to the fore that the court lacks jurisdiction to hear and determine a subject matter, that is the end of the judicial exercise of power in entertaining the suit and the rest of the issues awaiting determination abate forthwith, having lacked foundation to rest upon and anchor judicial efforts for valid resolution of the matter in dispute.
It has been an established and settled principle of law and procedure that subject matter jurisdictional issue bordering on the appropriate court to adjudicate a matter is a potent and fundamental jurisdictional challenge as it is substantive in nature and incurable not even by acquiescence/waiver by parties. Very recently, just few days ago, the Supreme Court restated the seriousness and imperative of resolution of this aspect of jurisdictional challenge in Matthew Lakekpe v. Warri Refinery & Petrochemicals Co Ltd & Anor. (2018) LPELR-44471 (SC), wherein the apex court stated thus:
“It is therefore treated with seriousness when the issue of jurisdiction is brought up for determination in the course of adjudication. It becomes more serious where the issue borders on the appropriate court before whom an action should be commenced…”
Of note however, is the fact that the Defendant/Counter-Claimant, who challenged the jurisdiction of the court in respect of the subject matter in dispute, again filed a Counter-Claim on the same subject matter, and placed same to be determined by the same court as an independent action. How can that be done? For if the court lacks the jurisdiction to hear and determine a subject matter as a substantive claim, it inevitably lacks jurisdiction to entertain a counter-claim arising from the same subject matter the court is claimed to lack jurisdiction to adjudicate. In such a situation the fate of both the main claim and counter-claim are tied to the resolution of the jurisdictional challenge against the main claim by the counter-claimant. I so hold.
I now proceed to resolve the issue on the jurisdictional challenge. In the resolution of this issue of jurisdiction, a quick resort should be to the pleadings, particularly the Statement of Facts of the Claimant.
A holist review of the pleadings and even testimonies of the CW and DW at the trial, points to the fact that it is common ground between the contending parties that the Defendant was employed as an Accountant and deployed to the Yola Branch of the Claimant. And that the main subject matter of the dispute between the parties is the issue of alleged misappropriation of the Claimant’s funds by the Defendant while carrying out his duty in the course of employment.
Accordingly, I find that the Defendant’s main line of duty as an Accountant is being in charge of the Claimant’s funds in the Account’s unit, and as such, the Defendant is thus answerable to the Claimant’s management on issues of finance (missing funds) in the course of duty at the work place within the confines of his employment (exh.DO1) and extant legal regime of workplace. It is also common ground that the main relief by the Claimant is for recovery of misappropriated fund in the course of employment.
With this understanding, in my considered view and I find, that there is no better way to describe the subject matter of this suit than to say that it is a matter involving worker’s line of duty in the course of employment, of which this court has unalloyed jurisdiction to entertain, by virtue of S.254 C(1) (a) of the Constitution of Federal Republic of Nigeria (as Amended by the 3rd Alteration Act 2010), which granted this Court an exclusive jurisdiction, in such civil causes or matter ‘relating to or connected with any labour, employment…and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith’. More so, as the applicable laws to be used in the resolution of the matter in dispute is laws ‘relating to labour, employment.. workplace …’ as prescribed in S.254C (1) (b) of the Constitution.
In S.C.C (Nig) Ltd v. Sedi [2013]1 NWLR (Pt.1335)CA 230( Sedi’s case), the court had cause to interpret similar provision of the S.254C(1)(a)(b) relating to jurisdiction over causes of action founded on workmen’s compensation. In arriving at its decision, Sections 38 and 41 of the then Workmen’s Compensation Act (now replaced with Employee Compensation Act 2010), which gave High Court jurisdiction on such civil causes, was construed and struck down when juxtaposed with the new provisions of the Constitution that vested exclusive jurisdiction on the National Industrial Court over such matters.
The reasoning of the Court of Appeal, per Mukhtar JCA @ Pp.247-248, Paras.G-C is illustrative and illuminating, thus:
“The provisions of sections 38 and 41 of the Workmen’s Compensation Act clearly confer jurisdiction, in respect of claims under the Act, on a High Court which the National Industrial Court is obviously not. That would have led to the success of the appeal per force without much ado on the one hand. On the other, it is pertinent that the law has changed with the passing of the Constitution of the Federal Republic of Nigeria (Third Alteration) ACT 2010which, inter alia, creates section 254C(1) that vests the National Industrial Court with an exclusive jurisdiction in all causes and matters related to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. This new provision in the Constitution has reduced sections 38 and 41 of the Workmen’s Compensation Act to a total nullity. Thus even if the matter had been instituted in a High Court as provided by the Workmen’s Compensation Act, which was the correct position of the law before the constitutional amendment, it would have metamorphosed into incompetence and would have led to striking out the suit theefrom or transferring it to the National Industrial Court, the only forum where exclusive jurisdiction in the matter resides”.
In the Sedi’s case (supra) @ P.244, Para.E, the Court in a lead Judgment per Eko JCA (as he then was, now JSC) held that: “ where a statute has identified a court and donated to it an exclusive jurisdiction over a particular cause of action, the jurisdiction of other courts not similarly mentioned would appear to have been ousted”.
Thus, where the subject matter of the dispute between the parties as in this suit, involves a ‘matter relating to or connected with labour, employment and matter arising from workplace’, such suit falls within the jurisdictional ambit of the National Industrial Court of Nigeria, as prescribed by S.254C(1)(a) of the Constitution of Federal Republic of Nigeria (as Amended by the 3rd Alteration Act 2010). I so hold.
It is therefore, my humble but tenacious view and I hold that, where as in the instant case, the Claimant as an employer, takes the civil option and institutes a civil suit to pursue an otherwise criminal claim (misappropriation of fund/criminal abuse of office) against its employee trusted with funds in the course of duty at work place, and carefully couch the claim as a civil action (recovery of missing/misappropriated funds) and is ready to establish the case as a civil claim and to discharge the onerous evidential burden placed thereby (for making criminal allegation in civil claim), the National Industrial Court is not only the appropriate court to ventilate the claim, but it also has exclusive jurisdiction to entertain the civil suit, for recovery of misappropriated fund at work place in the course of duty by an employee.
In other words, the National Industrial Court of Nigeria has exclusive jurisdiction over civil claims for recovery of misappropriated funds by employee in the course of employment, pursuant to S.254 (1) (a) Constitution of Federal Republic of Nigeria (as Amended by the 3rd Alteration Act 2010), which granted this Court an exclusive jurisdiction, in such civil causes or matter ‘relating to or connected with any labour, employment…and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith’. I so hold.
In the circumstance, I hasten to hold that this court has jurisdiction to entertain this suit, and I now assume jurisdiction to determine the other issues raised for determination for effectual resolution of the dispute submitted by the parties in this suit.
The next is issue (ii) – on whether the claimant has proved his case against the defendant/counter claimant to warrant the court enter judgment in its favour. The crux of the Claimant’s case from the pleadings and testimonies of the CW, is that the Defendant was employed by the Claimant company as an Accountant and deployed to be in charge of Accounts unit of its Yola office since January 2008, and in the course of his employment, the Defendant was alleged to have embezzled/misappropriated the Claimant’s funds.
Upon discovery and being confronted with this act, sometime in February 2015, the Defendant made some admissions in writing and undertook to repay the missing sums, totaling N812, 518.40. Nevertheless, the Defendant reneged on his promise/undertaking to repay the sums and rather voluntarily abandoned his duty post. To discharge its burden of proof on the facts alleged in its pleadings, the Claimant’s sole Witness (CW), Usman Bello, the Assistant Branch Manager (Procurement) Yola Branch of the Claimant company testified at the trial and tendered three documents admitted in evidence and marked as ‘Exhibits CO1, CO2 and CO3’, described as follows: Undertaking dated 07/02/15-exh.CO1, Appeal for Payment of N812, 518.40 dated 11th February 2015- exh CO2 and Application for (7) days Casual Leave dated 12/02/2015- exh.CO3. CW adopted his Witness Statement on Oath sworn to on 9th October 2015 as his evidence-in-chief and urged the court to grant the Claimant’s reliefs.
Paragraphs 8- 12 of the CW’s Witness Statement on Oath which was adopted as evidence in chief of the CW, (similar to averments in Paragraphs 7-12 of the Claimant’s Statement of Facts Establishing the Cause of Action) threw more light on the background of the Claimant’s claims as follows:
“Paragraph 8- ‘That at the end of the exercise, it was discovered that the sum misappropriated by the defendant stood at N812,518.40 (Eight Hundred and Twelve Thousand, Five Hundred and Eighteen Naira and Forty Kobo). The defendant admitted this claim in a letter dated 11th day of February, 2015, written by him and addressed to the Yola branch manager of the claimant. Attached to the letter is a tabulated calculation made by the defendant indicating the sum misappropriated”.
“Paragraph 9- ‘That in the letter, the defendant appealed to the claimant to allow him to sell a tea plot located at Kubuku in Sarduana Local Government Area of Taraba State belonging to the defendant to pay the misappropriated/embezzled sum. In the alternative, the defendant requested that the claimant should accept the land as payment for the embezzled/misappropriated sum”.
Paragraph 10- ‘That upon receipt of the two letters mentioned in paragraphs 8 and 9; the claimant turned down the defendant’s requests and asserted that the defendant must pay the embezzled money”.
Paragraph 11- ‘That on the 12th February, 2015, the defendant vide a letter applied to the claimant’s Yola branch manager for seven days casual leave to enable him source for fund to reduce or settle the huge debt on him. The defendant was allowed to proceed on the leave but reneged on his promise”.
Paragraph 12- ‘That in spite of repeated demands, the defendant has failed, neglected and /or refused to pay the misappropriated sum. The defendant’s refusal and/or neglect to pay the said sum necessitated the filing of this suit. The claimant normally makes a net profit of 30% monthly on monies invested in its trading business”.
The three exhibits tendered by CW and admitted as Exhibits CO1, CO2 and CO3 which are handwritten by the Defendant are also explicit and insightful on the issue of misappropriated funds.
Exhibit CO1 reads:
“ WACOT Yola
07/02/15
The Branch Manager
WACOT Yola
Dear Sir,
Undertaking
I write to inform you that having gone through the receipt of cash from Head office to Yola office and expenses incurred by me with a discrepancy of N620,000/- I seriously accept the difference to be on my head only.
I crave your indulgence to allow me to go home and sell properties inherited from my father or even sell my house to settle same.
Thanks
Yours faithfully
sgnd: Oscar Amos”
Exhibit CO2 reads:
“ WACOT Yola
11th February 2015
The Branch Manager
WACOT Yola
Dear Sir,
Appeal for payment of N812, 518.40
Considering my undertaking written to you on 7/2/15, I still want to inform you that since there was a professional error dictated by my superior officer in Gombe, I fully accept the mistake.
Sir, I will equally want to tell you that I have a tea plot located at Kubuku in Sarduana Local Govt. of Taraba State. By this information, I wish that Ten (ten) days be given to me to go and see how I will sell it or if I cannot sell it I wish that WACOT should take over my tea farm which is certificated. The farm is matured and yielding revenue 100×100 meters.
WACOT might also wish to attach me with some one that will go and see the farm. I love my job and wish to continue with the company.
Thanks
Yours faithfully
sgnd: Oscar Amos 11/2/15”
Note also that the attached document forming part of the exhibit CO2 has a table of cash book figures with variance (missing sum) in the sum of N812, 518.40 and was signed off by the Defendant and dated 11/2/15.
Exhibit CO3 reads:
“ WACOT Yola
12/02/2015
The Branch Manager
WACOT Yola
Dear Sir,
Application for Seven (7) days Casual Leave
I write to take a (7) seven days casual leave to enable me travel home Kubuku in Sardawa Local government area of Taraba State, from 14/2/15-21/2/15
The purpose of my going is enable me source fund that will reduce or settle the huge debt on me. I would want to sell some properties.
I shall be grateful should my application is given consideration
Thanks
Yours faithfully
sgnd: Oscar Amos”
The Defendant on his part, being confronted and vigorously faced with the CW’s testimonies, averments and the three exhibits tendered in proof of the Claimant’s case, did not deny the existence of the allegation of misappropriation, but turned round to allege that he was coerced, intimidated and threatened to write the three exhibits, which according to him, were dictated to him by the Claimant’s branch manager, and that he did withdraw the Undertaking and Appeal letter. He sought to rely on three relevant Exhibits- DO 4, DO 5 and DO 7, which were Letters of Withdrawal of the Undertaking and Appeal and Reminders. Exhibit DO4 titled “Withdrawal of Undertaking and Appeal dated 17/06/15; Exhibit DO5 titled “A Reminder on Withdrawal of Undertaking and Appeal Letter dated 03/08/15 and Exhibit DO7 titled “A Second Reminder on Withdrawal of Undertaking and Appeal Letter dated 10/08/15”.
The 1st to 2nd Paragraphs of Exhibit DO4 dated 17/06/15 and addressed to the Branch Manager WACOT Yola, set the tone for the Defendant’s denial of liability of the Claimant’s claim. He stated:
“I write to withdraw the undertaking and appeal letters I wrote on the 07/02/ and 11/02/15 to pay N620,000.00 and N812,518.40 in Yola and Gombe when I received pressure from you and Mr.Balaji the financial controller of WACOT”.
“It should be noted that the undertaking and appeal were both pressured and dictated to me UNDER a tense situation surrounding me at the time. I am withdrawing both letters because the calculations of Mr. Balaji the financial controller of WACOT Gombe is totally misleading and implicative”.
In order to expatiate on the alleged coercion to write the undertaking, the Defendant made averments in respect of his alleged arrest and detention by the Police in Taraba State on instigation of the Claimant’s Yola Branch Manager, Mr.Nishat. He averred in Paragraphs 14 and 15 of his Witness Statement on Oath as follows:
“Paragraph 14- That one Mr. Agada under the instruction of the branch manager Mr. Nishat, the branch manager followed [me] to my village with one policeman from Karewa Police Division, Yola, Adamawa State and arrested me, handcuff, humiliated , disgrace(sic) and dihumised (sic) me.
Paragraph 15- That I was made to sleep in the police cell and has (sic) been going there several times but the complainants, Mr. Nishet and Agada abundant (sic) the matter of (sic) the police state (sic) and refused to proceed”.
As the Defendant did not provide the exact date of this incident, he filled the gap in his oral testimony at the trial. During cross-examination, he was asked: ‘Take a look at the ‘exh.CO3 (Application for leave), since you wrote the application for leave did you ever return to duty in the office of the Claimant.” He answered: “Yes, I returned to duty up to 28th Feb 2015, when I was told to stop coming to work until the issue of the allegation of misappropriation of fund is resolved at the head office. On 23rd March, 2015 the Branch Manager, called me on phone and directed me to call the Admin Manager of the Claimant. When I called him, he told me to come and meet him somewhere in Taraba, so that I can sign my letter of termination of my employment. I finally met with him and the police with him arrested me and handcuffed me. And I was detained for 3 days in police cell. I was almost forgotten at the police until I contacted my lawyer who advised the company to withdraw the complaint at the police and reinstate me back to work…”
From the above testimony and upon perusal of the exhibits under evaluation, it is clear and I find that the incident of the Police getting involved in the matter started from 23rd March 2015, whereas the Defendant’s first letter of Withdrawal (exh. DO4) was dated and issued on 17/06/15 (about 3 months after the police incident in Taraba).
And inexplicably, the said Withdrawal letter made in June 2015 after the police incident in March 2015 did not mention any such police incident. Again, the letters sought to be withdrawn- the Undertakings and Appeal for payment (exh.CO1, CO2 and CO3) were written in the month of February 2015 (07/02/15, 11th February 2015 and 12th Feb. 2015) respectively, which is about one month before the police incident in March 2015.
From the foregoing analysis of the DW’s testimonies and evaluation of the exhibits on the issue of alleged coercion to accept responsibility of the missing/misappropriated funds by the Defendant, a discerning mind would readily ask- where then is the link between the incident of police arrest and detention, purporting to provide evidence to sustain the alleged coercion by the Defendant’s superior officer (branch manager) in writing the undertaking and appeal for payment?
I find that there is no link between the police incident in Taraba and the writing of the incriminating admissions of being responsible for the missing funds that would warrant writing for the withdrawal. I also find and hold that DW’s testimony on this incident when compared with relevant dates of certain relevant incident is clearly contradictory. See: Adewale v. Olaifa [2012] 17 NWLR (Pt. 1330) C.A. 478
I also find that no evidence of the alleged intimidation and coercion by the superior officers of the Claimant company against the Defendant was laid and established at the trial by the Defendant. He did not also call any other witness to corroborate his allegation of intimidation/coercion to write the exhibits CO1-CO3 or provide clear and probable evidence of any incident of coercion, neither did he take advantage of ‘Subpoena decus ad Testificandum’, and apply to court to compel the attendance of the said Branch Manager to attend court and testify on the incident.
Having failed to establish his alleged coercion and intimidation while writing the admissions of being responsible for the missing funds, for the Defendant to still rigour out of his own admissions made both in pleadings and testimonies in court, and succeed in knocking off his own handwritten admissions in exhibits CO1-CO3, he needs to do more and is left with only the legal window to adduce credible evidence to set up a case of non estum factum or duress.
Incidentally, the Defendant’s counsel lashed on this legal window which appears to be the plank of his submissions to relieve the Defendant from the binding effect of the exhibits CO1-CO3 signed by him. But again, the Defendant got hunted by the glaring effect of the ratio of the same case cited and relied on by his own counsel in his Reply on Point of Law in respect of the lingering issue of binding effect of a document signed by a person.
Without establishing any of the exceptions allowed by law to relieve a person from the binding effect of a document signed by him, Defendant’s learned counsel brought the effect to the glaring spot when he cited and relied on S.T.B Ltd v. Interdrill Nig Ltd (2007) All FWLR (Pt. 366)757 @773, Paras.D-E, which held that: in absence of plea of non est factum or allegation of signing under duress, the mere fact of the signature of a person on a document makes the contents binding on him”.
It is clear that in absence of establishing certain legal exceptions, a document signed by a person is binding on him. Thus, in S.S GMBH v. T.D Ind.Ltd [2010]11 NWLR (Pt.1206)SC 589 @P.626, Paras. G-H, the Supreme Court held that: “A document signed by a party has a binding effect on him”. See also: Agwunedu v. Onwumere [1994]1 NWLR (Pt.321)375; Okoya v. Santili [1994]4NWLR (Pt.338)256; Egbase v.Oriareghan [1985] 2 NWLR (Pt.10)884; Okonkwo v.C.C.B (Nig) Plc [2003] 8 NWLR (Pt.822)347.
As it stands, the exh.CO1-CO3 (admissions by the Defendant) and exh.D04-DO7 (withdrawal of the admissions) cannot stand and survive together. In other words, the binding effect of exh.CO1-CO3 becomes potent if there is no evidence showing they were made under duress or intimidation or fraudulently procured. And if the potency of exh.CO1-C03 remains unshaken, there is no standing place for exh. DO4-DO7, which sought to withdraw the exh.CO1-CO3, making the exh.DO4-DO7 to lack probative value, even though they were duly admitted in evidence. But then, admissibility of document is one thing, but more important is the evaluation thereof, to ascertain what evidential values any admitted document possesses to prove what it was set to establish and add weight to the side of the scale for the respective party’s success on balance of probability.
Flowing from the analysis, it is clear, and I find that the Defendant did not provide credible evidence to establish his allegation that he signed the exh.CO1- CO3 under duress and coercion. Accordingly, with the Defendant’s bare assertions without substantiating the allegation (an onerous burden he ought to discharge), the purported withdrawal of his own handwritten undertaking and appeal to pay the sum alleged that he misappropriated in the course of employment, and which he admitted (exh.CO1, CO2 and CO3) but attempted to disown, by the purported withdrawal and the reminders (exh.DO4, DO5 and DO7), are hereby discountenanced. I so hold.
Ordinarily, where a person receives a document relating to contractual relationship but refuses to take necessary action on it or even offer a dignified response by a Reply, such is held against the person who received such correspondence, and the person risks having the full legal effect of admission as constituting unchallenged averment/evidence. See: John Tunde Oriola v.Lagos State Government & Ors. (2014)LPELR-22248(CA); Iva v.Amakiri (1976) 11 SC1; Gwani v. Ebule [1990]5 NWLR (Pt.149)201.
Despite receipt of exh.DO4, 5 and 7 (withdrawal letter and reminders on exh.CO1-CO3) as evidenced by exh.DO6 (postal evidence), the Claimant did not respond or act on the correspondence seeking to withdraw his earlier admissions of being responsible for the missing funds. However, in the circumstance of this case, I also find and hold that the Claimant rightfully ignored responding to or taking action on the said exh. DO4, DO5 and DO7, upon receipt of them, as evidenced by exh.DO6, since they did not effectively dislodge the Defendant’s admissions in exh. CO1-C03, which is the sole hatchet job the Defendant aimed at and deployed the exh.DO4-DO7 to achieve. Unfortunately, the Exh.DO4-D07 having failed to achieve the desirable evidential value of dislodging Exh. CO1-CO3, the Defendant was left bare and exposed to the full legal effects of the admissions in exh.CO1-CO3, thereby obviating the imperativeness of Claimant’s response to exh.DO4, 5 and 7 (withdrawal letters of admissions in exh.CO1-CO3). I so hold.
Turning back to the issue set out for determination, regarding whether the Claimant proved its case against the Defendant. With the survival of exh.CO1-CO3, being express and unequivocal admission as well as the admissions also made in the pleadings by the Defendant, it is trite principle of judicial adjudication in adversarial jurisprudential system, that once an admission is established, proof is no longer required as the burden of proof is automatically discharged, for the simple reason that ‘what is admitted need no further proof’.
In Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, Paras. F-G, it was held that: “The rules governing affidavit evidence and pleadings is that when a fact(s) asserted, is not denied or controverted by the adverse party, who has a duty to do so, the same is deemed to be admitted by him (adverse party), and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of section 75 of the Evidence Act”.
What amounts to ‘Admission’ has been clarified by the Supreme Court in Adusei v. Adebayo [2012] 3 NWLR (Pt. 1288) S.C. 534 (Adusei Case) to the effect that: ‘Admission is a statement, oral or written, expressed or implied, which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement’@ P. 558, Paras. B-C, the apex court further explained that:
“Admission is a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”.
In the Adusei Case (supra) @ P. 558, paras. A-B, the Supreme Court restated the effect of admission in judicial proceedings, and held thus :”A crucial fact which is admitted needs no further proof and same would be taken as established”. See also: [Agbanelo v. U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534; Edokpolo & Co. Ltd. Ohenhen [1994] 7 NWLR (Pt.358) 511; Seismograph Services (Nig.) Ltd. v. Eyuafe (1976) 9 & 10 SC 135. The basis of the effect of admission was explained @ P. 552, paras. E-H thus: “Admissions made do not require to be proved for the simple reason that no better proof is required than that which an adversary wholly and voluntarily owns up. In the instant case the statements made by the respondent to the police which were admitted in evidence as Exhibits 18, 18A and 18B in connection with the disputed issue of ownership of the school constituted admission against interest of the respondent who made them”.
I find that exhibits CO1, CO2 and CO3 are complete admissions of the alleged misappropriation of fund in issue in this suit. With the admission in the exhibits and pleadings, the Claimant is relieved of a heavy burden of proof of criminal allegation in civil suit, which danged on it to discharge by proof beyond reasonable doubt rather than on balance of probability to be able to succeed in its case without this admission. Accordingly, there being no further need to prove the allegation, the burden on the Claimant to discharge to succeed in the allegation is hereby discharged. I so hold.
With this holding on admission of the claims by the Defendant, the issue as to whether audit report or statement of account should have been tendered and account reconciled or admitted because of its unsigned state, in my view, has become mute and accordingly discountenanced. I so hold.
To that effect, the Claimant’s Relief (a) succeeds, and Judgment is hereby entered for the Claimant in the sum of N812, 518.40 (Eight Hundred and Twelve Thousand, Five Hundred and Eighteen Naira, Forty kobo) being the total amount of money misappropriated/embezzled by the Defendant in the course of employment as the Accountant at the Yola Branch of the Claimant.
In Relief (b), the Claimant sought for the sum of N120, 000.00 (one Hundred and Twenty Thousand naira) being the cost the Claimant incurred to engage the services of solicitors to prosecute this case. This claim is in the nature of special damages which is required not only to be pleaded with due particularity but also established by credible evidence adduced in support. See: Johnson v. Mobil Prod. (Nig.) Unltd. [2010] 7 NWLR (Pt. 1194) C.A. 462 @ (P. 506, Paras. G-H, wherein it was held that: Special damages must be specifically pleaded and strictly proved. In other words, a claim for special damages should be strictly pleaded, particularized and established by credible evidence.
On review of the Claimant’s pleadings, I find that, in Paragraph 11 of the Statement of Facts Establishing the Cause of Action, the pleading aspect of the requirements for award of special damages was satisfied, when the Claimant averred that: “…. The claimant engaged the services of Desmond S. Adebole & Co to prosecute this case with the sum of N120, 000 (One Hundred and Twenty Thousand Naira). The cash receipt dated 12th September, 2015 issued by Desmond S. Adebole & Co to the claimant indicating the part payment of N60,000 (Sixty Thousand Naira) as professional fee is hereby pleaded”. In an attempt to adduce credible evidence to sustain the pleading, similar averment was made in Paragraph 13 of the Witness Statement on Oath of CW. But then, no documentary evidence was tendered to show the Receipt issued in payment of the solicitors’ fees or evidence of the said agreed fees pleaded and sought to be recovered by the Claimant as special damages.
In Lufthansa German Airlines v. Ballanyne [2013] 1NWLR (Pt.1336) CA 527, @ P.549 Para.A, it was held that: “A party that relies on the contents of a document to establish his case has a duty to produce the original of the document before the court”. Or at least, tender a photocopy as secondary evidence thereof. In the instant case, I find that neither the original nor a photocopy of the pleaded evidence of the Claimant’s Solicitors’ professional fees charged was tendered in evidence at the trial. Accordingly, this relief fails as it was not established by credible evidence as required by law. It is hereby discountenanced and dismissed. I so hold.
To the extent that Relief (e) is a duplication of the Relief (b), as it also sought for recovery of the Cost of this suit, without being established by credible evidence, it also fails, and is hereby discountenanced and dismissed. I so hold.
Reliefs (c ) and (d) sought for 20% interest per annum on the N812, 518.40 (eight Hundred and Twelve Thousand, Five Hundred and Eighteen naira, Forty kobo) calculated from 9th January, 2014 to the date of judgment and 20% interest per annum on the judgment sum till final liquidation, respectively. The Calculation of pre-judgment sum ought not to precede cause of action. The cause of action in this matter at least started with the execution of undertaking to pay the misappropriated fund (exh.CO1 dated 07/02/15). This is the earliest material time relevant for calculating any pre-judgment sum if awardable should be for a date not earlier than the 07/02/15.
I therefore find the Claimant’s relief for pre-judgment interest ‘calculated from 9th day of January, 2014’ as grossly misleading and incorrect, not being supported by any iota of fact or evidence before the court and same is hereby discountenanced and struck out. I so hold.
The critical question remains, is the Claimant, is entitled to award of Pre-Judgment interest in the circumstance of this suit? The Claimant did not make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required to not only be specifically pleaded but also to provide sufficient evidence to ground its award. See: Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, where the apex court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused.
The award of Post-Judgment interest is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case. I find the Relief (d) which sought for 20% interest per annum on the judgment sum till final liquidation, as presumptuous, speculative and role-swapping. Same is accordingly discountenanced and dismissed.
On issue (iii) -Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment: I will determine this issue along with the Counter-Claim as it is the key issue for determination on the Counter-Claim.
COUNTER-CLAIM
The Defendant counter-claimed against the Claimant via a Counter-Claim dated 30th October 2015 and filed on 2nd November 2015 and amended and filed on 26th May 2016, contending that he has not been paid for 9 months since February 2015 because he was unlawfully asked to stop coming to work, which caused him serious hardship, and that his monthly take home pay was N50,000 and failure to receive the payment has caused him serious psychological trauma, mental torture, economic and social difficulties including inability to pay for his children’s school fees and house rent.
The Defendant’s Counter-Claim against the Claimant is for the following Reliefs:
“(a) The sum of N450, 000.00 the total amount the counter claimant should have received as salary from the defendant from February to October 2015.
(b) The sum of N50, 000.00 monthly from the month of November 2015 till the counter claimant’s appointment is lawfully terminated
(c) 20% annual interest on the accrued salary till its (sic) fully liquidated by the defendant
(d) The sum of N900, 000.00 as general damages for the hardship and psychological traumas caused the counterclaimant by the action of the defendant.
(e) The cost of this litigation.”
Incidentally, during the trial proceedings on 7th December 2017, the Defendant/Counter-Claimant only adopted his Witness Statement on Oath deposed to at the court’s Registry on 31st May 2016 as his evidence- in-chief but omitted to adopt the one in respect of the Counter-Claim, titled “WITNESS STATEMENT ON OATH OF OSCAR AMOS (COUNTER CLAIM)”, also sworn to on 31st May 2016 at the court’s registry.
The Claimant’s learned counsel, in his Final Written Address dated 19th January 2018 and filed on 25th January 2018 trouble-shoot the Counter-Claim, when he submitted in Paragraph 1.59 as follows:
“My Lord, in the instant case, the defendant/counter claimant having filed his counter claim must lead evidence to support same. It must be noted that the witness statement on oath which the defendant adopted during his examination in chief is his defence to the claimant’s case. But the defendant failed to adopt his second witness statement on oath which touches on the counter-claim. The implication of this is that the defendant has abandoned his counter- claim since there is no evidence before this court to prove same. The defendant’s counter-claim therefore fails for lack of evidence and we urge the court so hold”.
Counsel further canvassed arguments puncturing the validity of the Counter-Claimant not backed by evidence at trial in Paragraph 1.63 of his said Final Written Address, and submitted that:
“The defendant failed to lead evidence in proof of the counter-claim. It is settled law that a counter-claim like the main claim or the plaintiff’s claim must be proved on the balance of probability. Where the defendant fails to prove his counter-claim as in the instant case, his action must be dismissed”.
Nevertheless, learned counsel contended that assuming without conceding, that the Defendant/Counter-Claimant in the instant case had led evidence in proof of his counter claim, the counter claim did not raise any new issue and is therefore baseless, and thus, the Claimant does not need to file a Defence or Reply to the Counter- Claim. He cited and relied on Usman v. Garke (2003) All FWLR (Pt.177)815 @ 822, Paras.O-E; Akpaji v. Udemba (2009) All FWLR (Pt.471) 811 @822, Paras.G-H.
Claimant’s counsel further contended that in the Counter-Claim, the Defendant is alleging that he is still under the employment of the Claimant, that his appointment was not terminated. But that in the Claimant’s Statement of Facts Establishing the Cause of Action the Claimant stated that Defendant’s employment was terminated. And that it follows that this issue of employment herein is covered in Claimant’s pleadings. That it is not a new issue, hence a Reply to the Defendant’s Counter-Claim has become useless. Counsel argued that it is in evidence that the Defendant willfully abandoned his employment and was disengaged by his act of repudiating the contract as he withdrew from duties.
In a swift response, by Defendant’s counsel’s Reply on Point of Law dated and filed 14th March 2018, Defendant/Counter-Claimant’s counsel in Paragraph 1.04, submitted that “the Hon. Court has the discretion whether to take the Claimant’s case and the counter claim together or after the closed (sic) of the Claimant’s case and judgment is given and proceed to hear the Counter claim”.
Counsel cited and relied on SNIG (Nig) Ltd v. WEMA Bank Plc (2016) LPELR-40576 (CA) wherein the Court of Appeal followed the Supreme Court in APUB v. Kolo (1993) 12 SCNJ, holding that: “Now, a counter-claim is a cross-action raised in the statement of defence by a defendant who has a cause of action against the plaintiff. It is an independent action brought by the defendant against the plaintiff and not merely a defence. It may not arise from the same transaction as the plaintiff’s action and it is not necessarily predicated on the statement of claim. For this reason, if the plaintiff’s action terminates, it does not affect the counter-claim. Rather, the defendant is still entitled to proceed to establish his counterclaim and obtain judgment because it is a separate action from the plaintiff’s action….”
Counsel continued in Paragraph 1.05 of the said Reply on Point of Law and heretically made his final submissions as follows:
“We respectfully submit that evidence will only be led in proving the case of party when the case is slated for hearing. The Hon. Court who is fully aware of the Defendant’s Counter claim is yet to give an opportunity to the Defendant to proof his counter by evidence”.
I find this submission of learned counsel incongruous; wondering what other hearing is the Defendant/Counter-Claimant’s counsel expecting after closing the entire case, filed and adopted final addresses and judgment reserved? I take the view that even though counter-claim is an independent action and separate from the substantive/main case, yet in a case where the substance of the material fact driving the counter-claim is the same as the main claim, such that the counter-claim is inextricately tied to the main suit, as in this instant case, procedural prudence entails that both the main claim and counter-claim are to be taken together and a holist Judgment delivered which would also address issues covering the counter-claim.
By such often practiced procedural approach, one is not expecting that after delivery of the Judgment, the Judge will set up and open the matter once again for another hearing for the counter-claim, requiring same evidence anchoring the main claim to be regurgitated and witnesses recalled and re-heard for the determination of the counter-claim on the same subject matter, merely because, in principle, the counter-claim is said to be a separate Suit. I struggle to associate with such submission, and decline to uphold it. Same is accordingly discountenanced. I so hold.
In the interest of justice, I would rather hold that both the main claim and the counter-claim have been heard since all necessary processes are already in the court’s file and formed part of the record of proceedings on the matter. I could not and did not close my eyes to the said court processes, particularly the Witness Statement on Oath of the Defendant/Counter-Claimant of the DW which was said to have been omitted to be adopted.
I take this approach in the interest of justice in accordance with S.12 of the National Industrial Court Act (NICA) 2006, requiring the court to eschew sheer technicality and embrace doing substantial justice, and also for the simple legal reason, that a court of law is empowered to make use of processes and materials in its records to arrive at efficacious resolution of any issue under consideration. See: Dorothy Adaeze Awogu v.TFG Real Estate Limited (Unreported Suit No. NICN/LA/262/2013, the Judgment of which was delivered on 4th June 2018 by Hon.Justice B.B Kanyip, PhD, PJ Lagos Division) wherein the court clarified the application of S.12 NIC Act 2006 to ameliorate the technical effects of defective Witness Statement on Oath during trial. I adopt the views expressed therein by my Lord Kanyip PJ.
Accordingly, I decline to visit the full effects of the omission by the Defendant/Counter-Claimant to adopt the witness statement of on oath in respect of the Counter-Claim, which is in the record of the court and which contents are well covered in the earlier adopted witness statement on oath in respect of the defence, and formed the basis of Issue iii joined by the parties and slated by both counsel for determination. In Umezinne v. FRN [2013]13NWLR (Pt.1371)CA269@ P.289, Paras.C-F, it was held thus: “A Judge can suo motu make reference to the case file before him and make use of any document he finds necessary in the file in determining the appeal”. See also: Fumudoh v.Abore [1991] 9NWLR (Pt.214); Agbaisi v.Ebikorefe [1997] 4NWLR (Pt.502)630; Texaco Nig.Ltd v.Lukolo [1997]6NWLR (Pt.510)651; Wellington v. Registered Trustees of the Ijebu-Ode Goodwill Society [2000]3NWLR (Pt.647)130; Abodun v. Attorney-General of the Federation [2007]15 NWLR (Pt.1057)359.
I am further strengthened on this position as the Claimant in fact joined issues with the Defendant/Counter-Claimant on the reliefs sought for in the said Counter-Claim regarding whether or not the Defendant is still in employment of the Claimant, which the Defendant/Counter-Claimant’s counsel himself raised as issue (iii) -Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment. That is the essence of the counter-claim initiated by the Defendant which is now to be considered and determined based on the evidence and records of the court in the proceedings.
The issue (iii) – Whether the defendant/counter claimant is not in law a bonafide employee of the claimant, his appointment having not been formally terminated in line with the condition provided for in the defendant’s letter of employment, is now due for determination for purpose of resolving the Counter-Claim. Gleaning from the Final Written Addresses inclusive of Reply on Point of law, filed and exchanged between both counsel, hard line positions were maintained by both of them on the issue of the correct legal status of employment relationship between the Defendant and the Claimant after the incident of February 2015.
Whereas the Claimant’s counsel maintained that the contract of employment has been discharged by the act of the Defendant abandoning his duty post after the approval of his 7 days casual leave as requested for in exh.CO3, the Claimant counsel following the testimony of the Defendant that he was instructed not to return to work until the head office resolves the issue, canvassed that the Defendant’s employment is still subsisting, hence his counter-claim for outstanding monthly salaries for the period he was kept out of office . This payment, the Claimant’s counsel hotly contested and insisted that it is not to be paid since the Defendant did not work for the Claimant, covering the period from February 2015 when the incident took place and October 2015 when this suit was commenced, totaling 9 months, and that he abandoned his duty post.
Under cross-examination, the Defendant had testified that he actually returned back to work on 28th February 2015 but was orally directed to go home, which directive he complied with. He stated in his pleadings and Witness Statement on Oath that he was not paid salary since February 2015. Of course, that was the core claim of his Counter-Claim. From the testimony, he got to know about his termination of employment on March 23 2015, when he stated he was called to meet with the Admin Manager of the Claimant to collect his Termination letter in Taraba.
The relevant part of his testimony is as follows: When asked under cross-examination: ‘Take a look at the ‘exh.CO3 (Application for leave), since you wrote the application for leave did you ever return to duty in the office of the Claimant.” He answered: “Yes, I returned to duty up to 28th Feb 2015, when I was told to stop coming to work until the issue of the allegation of misappropriation of fund is resolved at the head office. On 23rd March, 2015 the Branch Manager, called me on phone and directed me to call the Admin Manager of the Claimant. When I called him, he told me to come and meet him somewhere in Taraba, so that I can sign my letter of termination of my employment. I finally met with him and the police with him arrested me and handcuffed me. And I was detained for 3 days in police cell. I was almost forgotten at the police until I contacted my lawyer who advised the company to withdraw the complaint at the police and reinstate me back to work…”
From the records, no evidence was shown that the termination letter exists, as it was not tendered by the Claimant and there was no evidence that it was handed over to the Defendant during the meeting in Taraba in March 2015 which ended up being an arrangement for the Defendant/Counter-Claimant’s arrest and detention by the police. The Claimant commenced this suit in October 2015.
From the analysis, I find that it is not correct that the Defendant abandoned his work and duty post for over one year as submitted by the Claimant’s counsel in his Final Written Address. The Defendant’s employment was neither terminated nor was he formally sent on suspension pending investigation.
As at the 28th February 2015 when Defendant was said to have been directed to stay away from office, there was no issue of any further investigation on the matter. What was outstanding was recovery of the sum as per his undertaking to pay/ refund the missing funds as in exh.CO1-CO3. I so hold.
I also find that it is not correct that he abandoned work at all other than some fraction period of about 7 days between the time he left for casual leave on 14/2/15 and the 21/2/2015 he ought to return back, but he returned on 28/2/15, but was asked to go back. If the Claimant wanted to exercise its entitled disciplinary powers over its erring employee, the Defendant would have been punished for over-staying the casual leave by one week (7days).
No disciplinary action was taken, and thus, the Claimant waived its right to invoke appropriate disciplinary measure within the ambit of its powers over its employees. Rather, from the evidence adduced, I find that the Claimant’s oral directive through the Branch Manager to the Defendant to return home was not in respect of delayed resumption of duty after leave, but on a purported investigation of the matter already concluded as at that date of the said directive.
By exh.DO1 the Defendant was employed vide a letter of Offer of Appointment dated 6th January 2008 and his employment confirmed by Exh, DO2 dated October 8 2009, with effect from 1st October 2009. Average salary of the Defendant per month was said to be N50,000.
Exh.DO1 provides for a termination clause, which states: “After confirmation either party shall be required to give 30 days notice to terminate this contract or payment in lieu of notice”. There is no evidence that this provision of exh.DO1 was complied with. The Claimant rather claimed that the Defendant abandoned his duty post thereby relieving them of the obligation to give termination notice. By such submission, it is the Defendant that ought to give the notice or pay the salary in lieu. But that is not my finding.
I had earlier made a finding that the Defendant did not abandon his duty post. He was rather orally directed to stay away from work, which at most amounts to suspension, but not pending investigation or pronounced as punishment for the missing funds. At that relevant time (February 28 2015), investigation into the missing funds has been concluded and admissions made and decision taken by Claimant to opt for recovery of the fund from the Defendant (as in exh.CO1-CO3).
What is then the status of an employee undergoing suspension? The law is that suspension does not terminate an employment relationship, rather it keeps the relationship in abeyance pending final termination or resumption of the normal employer/employee relationship. See: Longe v. First Bank Plc [2010] 6 NWLR (Pt.1189) SC1; Adekunle v. UBA Plc (2016) LPELR-41124 (CA).
Although Suspension is disciplinary measure exercised by an employer under its overriding ambit of management control over its employees, yet labour & employment legal regime recognizes two classes of suspension-one pending investigation and the other as a punishment for a disclosed infraction of rules of engagement by an employee.
Thus, as an employee under suspension is still invariably a staff of the employer, the suspended employee’s entitlement to remuneration is however dependent on whether the suspension is pending investigation or punishment for alleged infraction- breach of discipline or any other offence. If it is pending investigation, the employee is deemed to be relieved of working by the employer who did not provide him work and is entitled to full remuneration unless there is an express provision in the condition of service providing that the suspension would be without pay or with half pay. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004. I so hold.
Again, the jurisprudence of labour & employment adjudication frowns at prolonged suspension of employee by employer whether for investigation or as a punishment, as it tends to keep an embattled employment in abeyance without meaningful and utilized relationship. In my view, such sour and frosty relationship ought to be severed or resolved to return to normalcy soonest! See: ACB v. ufondu [1997]10 NWLR (Pt.523)CA169.
I find that no such evidence of the Defendant’s suspension (being out of duty for 9 months: feb-oct.2015) as a punishment is before the court, and no evidence of his valid termination of employment was available. It is clear from the pleadings and evidence led by the parties that the employer/employee relationship between the Claimant and the Defendant was in writing. (See: exh. DO1–Offer of Appointment dated 6th January 2008 and exh. DO2- Confirmation of Appointment dated October 8 2009).
What is started in writing ought to end in writing or in absence of ending in writing, be treated as an act of repudiation of the contract, which would amount to wrongful termination of an employment governed by common law master-servant relationship, as in the instant case, which invariably, is assuaged in damages. See: Ogumka v.CAC (2010) LPER-4891(CA).
This leaves the court with the option to conclude that the Defendant was not properly terminated but was on suspension between the periods of February 2015 to October 2015, when the Claimant formally filed the Suit, which act could signify that the relationship has been severed/ terminated. To that effect, period of payment would amount to 9 months x N50, 000.00 totaling N450, 000.00 (four hundred and fifty thousand naira, which the Defendant/Counter-Claimant was owed, and now entitled to. I so hold.
Again, was the relationship severed in accordance with the contract of the employment? Pleadings and evidence presented point to the contrary. That brings the issue as to entitlement of the Defendant to 30 days salary in lieu of notice into fore for proper evaluation. Defendant/Counter-Claimant’s counsel had canvassed that the procedure of how the Defendant/Claimant’s employment could be terminated was not followed in bringing down the employment relationship by the Claimant. Claimant’s only answer was that the Defendant absconded from work and abandoned his duty post, which proposition has been found to be incorrect and discountenanced.
Even a perfunctory perusal of exh.DO1 (Offer of Appointment dated 6th January 2008) would reveal an express provision for termination of the employment, which clearly states: “After confirmation either party shall be required to give 30 days notice to terminate this contract or payment in lieu of notice”. Exh.DO2 (Confirmation of Appointment dated October 8 2009) shows that condition of confirmation of the employment which would premise the application of the said termination clause has been fulfilled upon confirmation of the employment in October 2009, which is over 7 years before the incident of the contract repudiation by the Claimant.
This shows that the Claimant exercised its right to bring the employment relation to an end but failed to follow the procedural requirement of service of notice or payment of salary in lieu. I so hold. This means that the Defendant is liable to pay one month salary in lieu of notice to the Defendant, which sum is N50, 000.00 (fifty thousand naira). I so hold.
On the Counter-Claimant’s Relief (c ) for 20% interest payment on the accrued salaries, no evidence was presented to support this claim., and no particulars was presented in the pleadings to justify the entitlement. The claim for interest not been sufficiently pleaded and supported by evidence fails on its own, and is accordingly discountenanced and dismissed. I so hold.
The Counter-Claimant’s Relief (d) is for the sum of N900, 000.00 as general damages for the hardship and psychological traumas the action of the Claimant/Defendant to Counter-Claim caused the Defendant/Counter-Claimant.
General damages is awardable perse upon breach, the couching of this relief seems to be Special damages as it purports to suggest some other basis anchoring the award for damages other than that the Defendant to the Counter-Claim breached the terms of the contract of employment.
No detailed particulars of the state of hardship and psychological trauma was presented in the pleadings and evidence led at the trial to establish. Besides, the assessed damages for breach of the contract based on master-servant relationship which is one-month salary in lieu of notice has been awarded to the Counter-Claimant in this Judgment, thus it would amount to double compensation if another sum is awarded in the name of general damages. See: Obot v. CBN [1993] 8NWLR (Pt.310) SC140; Ado v. Commissioner of Works, Benue State & Ors. [2007]15 NWLR (Pt.1058)CA 429
Relief (e) of the Counter-Claim is for cost ‘of this litigation’. ‘This litigation’ should mean the case before this court, where both parties litigated. The Counter- Claimant without providing any details of cost or evidence to establish same wants the court to award cost of the whole litigation to him alone.
Similarly, the Claimant had also in its Relief (e) asked for the cost of the suit. Again, without providing details of pleadings or evidence in support thereof, both parties feel that the issue of cost is just asked for and awarded as a matter of course and as a mere formality. But then, the Relief would collapse on either side. As done to the Claimant, the Relief bordering on cost of the litigation hereby fails and is accordingly discountenanced and dismissed. I so hold.
On the whole, the Defendant/Counter-Claimant succeeds, as per Relief (a) and (b). Accordingly, Judgment is entered in favour of the Counter-Claimant in the sum of N450,000 (four hundred and fifty thousand naira) being amount representing the Counter-Claimant’s unpaid salaries for 9 months from February 2015 to October 2015 at N50,000 per month, and the sum of N50,000 (fifty thousand naira) being the Counter- Claimant’s entitlement for one month salary in lieu of notice of termination of the employment.
The Defendant/Counter-Claimant is therefore entitled to payment of Judgment sum totaling the sum of N500, 000.000 (five hundred thousand naira). I so hold.
To give effect to the terms of the Judgment entered for both the Claimant and Defendant/Counter-Claimant, the sum of N500,000.00 (five hundred thousand) judgment sum awarded in favour of the Defendant/Counter-Claimant shall be deducted from the total judgment sum of N812,518.40 (eight hundred and twelve thousand, five hundred and eighteen naira forty kobo) awarded in favour of the Claimant, leaving a total sum of N312.518.40 (three hundred and twelve thousand, five hundred and eighteen naira forty kobo) payable to the Claimant by the Defendant.
For clarity and avoidance of doubt, the terms of this Judgment are as follows:
1. For the reasons advanced in the body of the Judgment, the Claimant’s Relief (a) succeeds. Judgment is hereby entered for the Claimant in the sum of N812, 518.40 (Eight Hundred and Twelve Thousand, Five Hundred and Eighteen Naira, Forty kobo) being the total amount of money misappropriated/embezzled by the Defendant in the course of employment as the Accountant at the Yola Branch of the Claimant.
2. For the reasons advanced in the body of the Judgment, the Claimant’s Reliefs (b),( c) , (d) and (e) are unsuccessful and are accordingly, hereby discountenanced and dismissed.
3. For the reasons advanced in the body of the Judgment, the Defendant/Counter-Claimant’s Reliefs (a) and (b) are successful. Accordingly, Judgment is entered in favour of the Counter-Claimant in the sum of N450,000 (four hundred and fifty thousand naira) being amount representing the Counter-Claimant’s unpaid salaries for 9 months from February 2015 to October 2015 at N50,000 per month, and the sum of N50,000 (fifty thousand naira) being the Counter- Claimant’s entitlement for one month salary in lieu of notice of termination of the employment. The Defendant/Counter-Claimant is therefore entitled to payment of Judgment sum totaling the sum of N500, 000.000 (five hundred thousand naira).
4. For the reasons advanced in the body of the Judgment, the Defendant/Counter-Claimant’s Reliefs (c),(d) and (e) are unsuccessful. Same are accordingly, hereby discountenanced and dismissed.
5. To give effect to the terms of the Judgment entered for both the Claimant and Defendant/Counter-Claimant, the sum of N500,000.00 (five hundred thousand) judgment sum awarded in favour of the Defendant/Counter-Claimant shall be deducted from the total judgment sum of N812,518.40 (eight hundred and twelve thousand, five hundred and eighteen naira forty kobo) awarded in favour of the Claimant, leaving a total sum of N312.518.40 (three hundred and twelve thousand, five hundred and eighteen naira forty kobo) payable to the Claimant by the Defendant.
6. Payment of the sum of money due in this Judgment shall be made by the Defendant/Counter-Claimant to the Claimant vide a Bank certified cheque within one (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sum due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
————————————-
HON. JUSTICE N.C.S OGBUANYA
PRESIDING JUDGE
13/6/18
