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National Industrial Court

Phillips Dele Okewande -VS- Consolidated Discounts Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 29thOctober 2019                     SUIT NO. NICN/LA/624/2014

 

BETWEEN

 

PHILLIPS DELE OKEWANDE                           …     CLAIMANT

 

AND

 

CONSOLIDATED DISCOUNTS LIMITED           …     DEFENDANT

 

JUDGMENT

 

1             The Claimant averred that he was an employee of the Defendant and his employment was terminated by letter dated 29th October 2014 made effective on 31st October 2014. He was paid one month’s salary in lieu of notice. By complaint dated 23rd December 2014, he commenced proceedings against the Defendant seeking certain reliefs. Upon being served with the originating processes, the Defendant filed its memorandum of appearance, defence and counterclaim. The statement of defence and counterclaim, list of witness, statement on oath of the witness, list of documents and copies of the documents were deemed properly filed and served on 20th March 2015. The Claimant filed his reply to the statement of defence and defence to counterclaim on 23rd March 2015 without accompanying statement on oath. On 25th May 2017, the Defendant was granted leave to amend its statement of defence and counterclaim and file fresh statement on oath of its sole witness. The amended statement of defence and counterclaim and supporting processes are dated 5th June 2017 but filed on 6th June 2017. By leave of court granted on 13th December 2018, the Claimant amended his originating processes which were filed on 20th December 2018 wherein he claimed against the Defendant in his amended statement of facts as follows:

  1. A declaration that he is entitled to his benefits and return on his investments with the Defendant.

  1. An order compelling the Defendant to pay him the sum of N45, 747, 287.41 [forty-five million, seven hundred and forty-seven thousand, two hundred and eighty-seven naira, forty-one kobo] being his salary, benefits and investments with the Defendant.

  1. An order restricting the Defendant, its agents, privies, assigns or Police from forcibly taking the vehicle away from him.

By leave granted on 7th March 2019, the Defendant substituted its sole witness, Mr. Adeyinka Adewusi with Mr. TarofiBabayi. Trial commenced on 7th March 2019 and was concluded on 5th April 2019. The Claimant testified for himself and tendered six documents in proof of his claim marked exhibits 1 to 6. He was thereafter cross-examined. Learned counsel for the Defendant tendered two documents through the Claimant during cross-examination marked exhibits 7 and 8. Mr. BabayiTarofi, the Chief Finance Officer of the Defendant, testified on behalf of the Defendant and tendered three documents in proof of the defence and counterclaim marked exhibits DW1A to DW1C. He was cross-examined. Learned counsel for the Claimant tendered three documents through this witness marked exhibits DW1D to DW1F. In compliance with the Rules of the Court, parties filed their final written addresses, which their respective counsel adopted as their final arguments in support of their case.

  1. In the final written address filed by the Defendant, learned counsel for the Defendant, Olasupo Adebayo Esq., raised one issue for determination, to wit:

“Whether the Claimant has been able to discharge the burden of proof as would entitlement [sic] him to the reliefs claimed in the General Form of Complaint and Statement of Facts?”

Learned counsel for the Claimant formulated two issues for determination in the Claimant’s final written address, viz:

“1.    Whether the Claimant is entitled to his benefits form [sic] the Defendant, and whether he has proved his case to be entitled to so [sic]?”

“2.    Whether the Defendant [has] proved its counterclaim?”

In my respectful view, the issues for determination submitted by the Claimant are apposite and I will adopt it with some modifications. Consequently, the issues for determination in this case are:

  1. Whether the Claimant is entitled to the reliefs sought?

  1. Whether the Defendant is entitled to judgment on its counterclaim?

  1. Issue one: Whether the Claimant is entitled to the reliefs sought?

Learned counsel for the Defendant, Mr. Adebayo submitted that there is uncontradicted evidence that the Central Bank of Nigeria intervened in the operations of the Defendant in September 2013 due to its inability to honour its obligations and appointed AMCON to take over the management, control and administration of the Defendant and AMCON injected fresh capital of N127 billion. He argued that faced with the dire financial situation of the Defendant, the CBN was compelled by statute to ensure that available assets are applied first to meet the Defendant’s obligations to its depositors and secured creditors who have priority over all other liabilities and referred to section 54 of Banks and other Financial Institutions Act. He contended that the Claimant did not join issues with the Defendant on the financial situation of the Defendant as at the time of CBN intervention up to his termination and the onus is on him to show that the Defendant has funds to pay his terminal benefits. He urged the Court to act on the audited account which was tendered in evidence and marked exhibit DW1B.He relied on FCDA v. Nzelu [2014] 5 NWLR [pt.1401] 565 at 581. It was also submitted that the Claimant did not challenge the evidence of DW1 that the Defendant was in coma when AMCON took it over and has remained in coma. It was submitted that where an adversary fails to cross-examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence; and the Court is not only entitled to accept the evidence but is bound to do so provided the evidence by its nature is not incredible. He referred toBature v. NDIC [2016] 11 NWLR [pt.1523] 287 and Adefarasin v. Dayekh [2007] 11 NWLR [pt.1044] 89in support.

 

Learned counsel argued that the Claimant relies on exhibit 4, the Board resolution, which was not shown to have been implemented by the former management or incorporated into his contract of employment before the CBN intervention. He submitted that parties are bound by the terms of their contract and no internal memo or other document can vary the salary or entitlement of an employee. The unreported case of Ikhamate Bauhaus v. Venture Capital Ltd. & Anor., Suit no. NIC/ABJ/79/2012 was cited in support. Learned counsel further submitted that the former management squandered the Defendant’s assets and there is nothing left to pay the Claimant under the terms of his contract of employment. He argued that in civil cases the plaintiff should rely on the strength of his case and not on the weakness of the defence and referred to Akande v. Adisa [2012] 15 NWLR [pt.1324] 538.

It was contended that in determining the right of the Claimant to payment of terminal benefits, recourse must be had to the facts and circumstances of the case. Osakwe v. F. C. E. Asaba [2010] 10 NWLR [pt.1201] 1 was referred to. He explained that from the evidence of DW1 there are no funds to pay the Claimant’s terminal benefits. Referring to exhibit DW1C and section 384 of the Companies and Allied Matters Act, learned counsel further argued that the claim for terminal benefits is tainted by the illegal collection by the Claimant of N7,000,000 bonus which had no basis in law or the contract of employment as the Defendant posted losses year by year. He therefore urged the Court to dismiss the claim for terminal benefits.

It was equally submitted that the claim for return on investment has no basis in law in that CDL Asset Management Limited was not made a party to the suit and the proper party to complain is Conso-Cooperative Multipurpose Society Limited which made the investment on behalf of the Claimant. He referred to section 299 of the Companies and Allied Matters Act, 2010 and the case of New Res International Limited v. Oranusi [2011] 2 NWLR [pt.1230] 102in support.

On the counterclaim, learned counsel submitted that the Claimant did not file any defence to the counterclaim and did not cross-examine the defence witness on issues raised therein. He argued that the Claimant admitted that he refused to return his official vehicle upon demand by the Defendant. Thus, the averments are deemed admitted and facts admitted require no proof. The Court was urged to so hold.

In response, learned counsel for the Claimant, Ugochukwu Nwokocha Esq., submitted that the Defendant is still in business and that there is unchallenged evidence that the Claimant was an employee of the Defendant. It was submitted that an employment relationship is contractual and any claim arising from it must be founded on the terms and conditions of the contract. He explained that the Claimant tendered exhibits 1 and 4 and DW1 tendered the staff handbook which contain the terms of the contract of service. It was contended that in determining the employment rights and obligations of the parties, the onus is on the Claimant to place before the Court the contract of employment which provides for the rights of the parties. The case of Aloysius v. Diamond Bank Plc [2015] 58 NNLR [pt.199] 92 at 137-138 was cited in support.Learned counsel argued that the Claimant has discharged the burden by the exhibits and his evidence in chief. He explained that the policy manual pages 13, 14, 17, 18, 19, 20, 21 and 22 and exhibit 4 contain the terms and conditions of employment. It was argued that the intervention of CBN and AMCON in the management of the Defendant is not sufficient to deny the Claimant of his entitlement. The Court was urged to give full weight to the unchallenged evidence of the Claimant and grant the claim. Learned counsel referred to the case of Ighsewe v. Delta Steel Co. Ltd [2008] All FWLR 741 at 763.

 

On the claim for return on investment, it was argued that the Defendant having coerced the Claimant into paying the money to its subsidiary constructively guaranteed the payment and should be liable in case of default. It was also argued that a look at the audited account, exhibit DW1B, shows that the accounts of the Defendant and subsidiaries were audited by the same firm; and the Defendant could not prove that it had no control of the funds of CDL Asset Management Ltd.

  1. I agree with learned counsel for the Claimant that there is no evidence before this Court that the Defendant has ceased to carry on business. The evidence of DW1 is that the Central Bank of Nigeria, in furtherance of its role as the prime regulator, reviewed the Defendant’s accounts and discovered financial recklessness by its top management and to prevent a massive run on the company by worried depositors and creditors, the CBN removed the entire management team and authorized AMCON to inject N100 billion capital in exchange for the shares of the Defendant; and to safeguard this investment, AMCON was authorized to take over the control and management of the Defendant. In spite of his submissions in paragraphs 4.15 to 4.17 of the Defendant’s final written address, learned counsel for the Defendant did not cite any authority to the effect that the take-over of the management of the Defendant by AMCON without more freezes the contractual rights of Defendant’s employees to terminal benefits.

On the issue of priority of debts, section 54 of the Banks and other Financial Institutions Act, CAP. B3Laws of the Federation of Nigeriais clear. It does not vitiate other claims but gives priority to deposit liabilities over other liabilities. It provides that:

“Where a bank is unable to meet its obligations or suspends payment, the assets of the bank in the Federation shall be available to meet all the deposit liabilities of the bank and such deposit liabilities shall have priority over all other liabilities of the bank.”

Juxtaposed with section 15 of the Labour Act, CAP. L1, Laws of the Federation of Nigeria, which states that wages shall become due and payable at the end of each period for which the contract is expressed to subsist, it becomes obvious that the “other liabilities” in section 54 of BOFIA cannot be read to include staff salaries and entitlements and I so hold.

        Also, the submission of Mr. Adebayo in paragraph 4.2 of the Defendant’s final written address is not supported by evidence. While DW1 in paragraph 10[ii] testified that the CBN authorized AMCON to inject N100 billion capital in exchange for the shares of the Defendant, learned counsel contended that AMCON had to inject fresh capital for the shares of the company to the tune of over N127 billion.  Counsel’s address must be based on evidence properly established in Court and any submission that is not based on the evidence before the Court goes to no issue. See Abraham N. Osadare&Ors. v. Liquidator, Nigeria Paper Mills Ltd. & Anor. [2011] LPELR-9269[CA] at page 36.

  1. Nonetheless, the law is trite that he who asserts must prove. See section 131 of the Evidence Act, 2011, which provides thus:

“[1]   Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

[2]    When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

See also the cases of Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [2018] 7 SC [pt.111] 164 at 212 and Chemiron International Limited v. StabiliniVisinoni Limited [2018] 17 NWLR [pt. 1647] 62 at 78-79.

 

Thus, the onus is on the Claimant to establish through his pleading and evidence his entitlement to judgment. The conditions of service are the bedrock upon which an aggrieved employee must found his case. They fix the rights and obligations of the parties and anaggrieved employee succeeds or fails upon the terms contained therein. See Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154 and Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1.

 

It is trite that where the Claimant successfully discharges the burden thrust on him by law, a prima facie case is made out and the burden shifts to the Defendant to adduce counter evidence to sustain its defence. Where, however, the Claimant fails to make out a prima facie case there will be nothing for the Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660at page 674 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [supra].

Parties agree that the Claimant was an employee of the Defendant and his employment was terminated on 31st October 2014 with payment of one month’s salary in lieu of notice. The Claimant’s claim is for payment of his terminal benefits, and in proof thereof, he tendered his letters of employment, promotion and termination and the board resolution of 18th September 2006 which were marked exhibits 1, 2, 3 and 4 respectively. Learned counsel for the Claimant tendered the staff policy and procedural manual through the defence witness which was marked exhibit DW1D.

In his evidence in chief, the Claimant stated that his basic salary was N6, 003,113 and he enjoyed other benefits in the sum ofN13, 173,879.45. He stated that as at 30th October 2014, his entitlement was N45, 747,287.41 made up of N1, 885, 673.28 outstanding leave allowance; N6, 028,328.67 insurance contributions; N34, 414,032.50 gratuity; N225, 000 investment in CDL assets management and N3, 194, 252.96 investment in C-CAP and CAM through Conso-Cooperative Multipurpose Society. He admitted that the Defendant gave him a Volkswagen Passat car, as official car valuedatN3, 666,700 which sum he said,should be deducted from his benefits. He also stated that the Defendant has not paid his entitlements as stipulated in the Board Resolution dated 18th September 2006. It was further stated that he made investments in CDL Assets Management and CDL Capital Market Limited which have not been settled. He acknowledged receipt of a letter from the Defendant demanding a return of the Volkswagen Passat car but stated that he is holding the vehicle as a lien for his unpaid entitlements. The letter was admitted in evidence and marked exhibit 6.

Under cross-examination he admitted that AMCON took over the assets of the Defendant in September 2013 and his salary was reduced thereafter but there was no official communication from the Defendant on the salary review. He equally admitted that exhibit 5 was acknowledged by CDL Assets Management and the cheques were made to CDL Assets Management Limited. He stated that the investment he referred to in paragraph 7[e] of his statement on oath was through Conso-Cooperative Multipurpose Society on the directive of the Defendant. He stated that there was no flier attached to his letter of termination. He acknowledged that there was no memo communicating the board resolutions to the staff. He equally admitted that he was paid bonus in 2013 but could not remember how much was paid to him and could not confirm that First Bank Nigeria Limited transferred N7, 000, 000 from the Defendant to Crystal Focus Ventures on his behalf.

  1. From the above, it is clear that the basis of the Claimant’s claims is exhibits 2, 4, 5, DW1E and DW1F. Claims 1 and 2 are for payment of his terminal benefits and return on investments. A terminal benefit has been described as a lump sum of money awarded in contract at expiration of employment. It is earned and accruable to the employee when his services are no longer required. A terminal benefit is calculable from the terms and conditions of employment. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] LPELR-8223[CA] at page 28. What is the evidence in support of the claim for terminal benefits? This is contained in paragraphs 6, 7, 8, 11 and 12 of the Claimant’s amended statement on oath and exhibits 2 and 4. Although, learned counsel for the Claimant referred to exhibit DW1D in the Claimant’s final written address, the Claimant did not plead the staff policy and procedural manual, and did not give evidence on it. Parties are bound by their pleadings and any evidence on facts not pleaded goes to no issue. See the case of Omika v. Isah [2011] LPELR-4564[CA] at page 30.This is so notwithstanding the oblique reference to the staff handbook in paragraph 3[vii] of the amended statement of defence and counterclaim and paragraph 10[vii] of the Defendant’s witness’ statement on oath.The submission of learned counsel for the Claimant on exhibit DW1D, therefore, goes to no issue as the submission of counsel cannot be a substitute for pleading or evidence. See Gbadamosi v. Tolani [2010] LPELR-3733[CA] at page 20.

Also, while exhibit 2 specifies the Claimant’s salary and allowances, it does not make provision for terminal benefits. In addition, there is unchallenged evidence that the Claimant’s salary was reviewed downwards after the take-over of the management of the Defendant by AMCON. To that extent, exhibit 2 does not represent the Claimant’s salary and allowances at the time of termination of his employment and I so hold.

  1. Exhibit 4 makes provision for staff retirement benefit scheme but, as rightly argued by learned counsel for the Defendant, the content of exhibit 4 was not incorporated into the Claimant’s contract of employment. Learned counsel for the Claimant did not counter this argument. The law is settled that where a party fails to counter any argument on an issue validly raised by the opponent, he is deemed to have conceded the issue. See Nwankwo &Ors. v. Yar’Adua&Ors. [2010] 3-5 S.C. [pt. III] 1 at 23 and Donbraye& Anor. v. Preyor&Ors. [2014] LPELR-22286[CA] at page 70. Invariably, the Claimant is deemed to have conceded that exhibit 4 was not incorporated into his contract of employment. In any event, there is nothing on the face of exhibits 1 and 2 showing that exhibit 4 was incorporated into the Claimant’s contract. Therefore, having not been incorporated into the Claimant’s contract of employment, exhibit 4 does not define the terms and conditions of that contract. Its provisions cannot, in the circumstances, be read into the contract between the Claimant and the Defendant. This is so because parties are bound by the contract they voluntarily entered into and cannot act outside the terms contained therein, neither can they read into the contract a term which is not embodied therein. See Gado v. Iliyasu [2014] LPELR-23066[CA] 19-20.

Resultantly, there is no documentary evidence in support of the Claimant’s claim for terminal benefits. The question then is whether the Claimant’s oral evidence is sufficient to provehis claim for terminal benefits? I do not think so. The evidence in support of the claim for terminal benefits is set out in paragraph 8 of his statement on oath. Item one is a claim for N1, 885, 673.28 outstanding leave allowance owed to him. The number of earned leave days were not stated. How the sum of N1, 885, 673.28 was calculated was equally not stated. It is not the business of a Court of law to speculate but to decide cases on hard facts established before it. See Iwayemi& Anor. v. Akinbo [2016] LPELR-40136[CA] at pages 22-23 and Ecobank Nigeria Limited v. Anchorage Leisures Limited &Ors. [2016] LPELR-40219[CA] at pages 34-35.

 

Item two is a claim for N6, 028, 328.67 insurance contributions. There is no paragraph of the amended statement of facts or statement on oath detailing the Claimant’s insurance contributions or the basis of computation. The term of his contract of employment entitling him to this head of claim was also not specified. The same goes for item three which is a claim for N34, 414, 032.50 gratuity for 5 years and 5 months. The basis of computation was not set out in his pleading and statement on oath. His entitlement to this sum was equally not pleaded. Courts are not father Christmas. In Congress for Progressive Change v. Independent National Electoral Commission &Ors. [2011] LPELR-8257[SC] at page 57, the Supreme Court held inter alia:

“A court of law can only pronounce judgment based on credible evidence presented and properly established before it. A court of law is not at liberty to go outside the evidence and search for extraneous evidence in favour of the parties.”

In the circumstance, I come to the irresistible conclusion that the Claimant has not provedhis claim for terminal benefits.

  1. The next head of claims is items four and five which are claims on investments made in the Defendant’s subsidiaries. Learned counsel for the Defendant argued that CDL Asset Management Limited is a separate legal entity and ought to have been made a party to this suit. It was further argued that, in any event, the proper party to complain about the investment is the Cooperative. In response, learned counsel for the Claimant submitted that the money was paid on the persuasion of the Defendant which constructively guaranteed the payment and should be liable in case of default. It was further argued that the handlers of the company were staff of the Defendant and the accounts of the subsidiaries and the Defendant were audited by the same firm. Learned counsel further argued that the Defendant could not prove that it had no control of the funds of CDL Asset Management Ltd.

The evidence in proof of this claim is paragraph 13 of the statement on oath and exhibits 5, DW1E and DW1F. In paragraph 13, the Claimant stated thus:

“13.  That I made some investments with the Defendant on its CDL Assets Management [CAM] and CDL Capital Markets Limited [C-CAP] which investments have not been settled by the Defendant.”

Exhibit 5 is the Claimant’s letter and cheques to CDL Asset Management Ltd subscribing for 225, 000 shares of the company at N225, 000. Exhibit DW1E is a memo from CDL Asset Management Limited to the Claimant on subscription of 225, 000 shares of the company. Exhibit DW1F is a memo from Conso-Cooperative Multipurpose Society to the Claimant on staff contribution towards purchase of CDL shares. The Claimant made a contribution of N2, 219, 252.96 bringing his total investment in CDL Asset Management Limited to N2, 444, 252.96. The role of the Defendant in this investment is not clear from the documentary evidence. The last paragraph of exhibit DW1E reads:

“We hereby advise you to make available your cheque for the payment on or before December 28, 2012 as directed by the Board of the company.”

There is nothing to show whether “the Board of the company” refers to the Defendant’s Board or the Board of CDL Asset Management Limited, and there is nothing in the Claimant’s statement on oath showing that he was coerced into making the investments. At any rate, there is no evidence that the Defendant guaranteed the investments.

  1. The rights of a shareholder on any investment is determined by the terms of issue and Articles of Association of the company. See section 114[a] of the Companies and Allied Matters Act, 2010which provides thus:

“Subject to the provisions of this Act, the rights and liabilities attaching to the shares of a company shall-

  1. be dependent on the terms of issue and of the company’s articles”

The terms of issue and the articles of association of CDL Asset Management Limited are not before this Court. In any event, that enquiry is beyond the jurisdiction of this Court. Be that as it may, the issue cannot be effectually resolved without CDL Asset Management Limited; which is thus a necessary party to these proceedings and ought to have been joined in the suit. The failure to join CDL Asset Management Limited robs the Court of jurisdiction to determine the claims for return on investments made in CDL Asset Management Limited. SeeShell Petroleum Development Company & Anor. v. Daniel Pessu[2014] LPELR-23325[CA] at page 57.

Also, it is not clear how the Claimant arrived at the sum of N3, 194, 252.96 as “investment in C-CAP and CAM through Conso-Cooperative Multipurpose Society”. Exhibit DW1F sets out the Claimant’s investment as N2, 219, 252.96. There is nothing in paragraphs 8 and 13 of his statement on oath to show how the sum accrued.Documentary evidence is the yardstick or hanger upon which oral evidence is assessed. See Okolie&Ors. v. Ebigbo&Ors. [2016] LPELR-40456[CA] at pages 49-50.The oral evidence in this case is at variance with the documentary evidence and must be discountenanced. See Ramonu Rufai Apena& Anor. v. Oba FataiAileru& Anor. [2014] LPELR-23305[SC] 20. The result is that there is no evidence in proof of item five. Although, there is evidence of investment of N225, 000, the terms of the investment are not before the Court to determine the conditions under which it is repayable. Reliefs one and two, therefore, have not been proved.

  1. The next relief is for an order restricting [sic] the Defendant, its agents, privies, assigns or Police from forcibly taking the vehicle away from the Claimant. This claim is in the nature of a perpetual injunction. It is trite law that a perpetual injunction will only be granted to protect a legal right. See Ojo v. Akinsanoye [2014] LPELR-22736[CA] at page 60 andOgiefo v. HRH JafaruIsesele 1 &Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

There is unchallenged evidence before this Court that the Volkswagen Passat car belongs to the Defendant. The Claimant’s evidence is that he is keeping the vehicle as a lien for his unpaid terminal benefits. I have found earlier in this judgment that the claim for terminal benefits has not been proved. Injunction is an equitable remedy and equity follows the law. An owner of a chattel has an indefeasible right to dealwith it as he considers fit. This right cannot be taken away from the Defendant under any guise. In the circumstance, the Claimant has not proved his right to continue to retain the vehicle or toan injunction.As parties have already agreed on the sum of N3, 666, 700 as the book value of the vehicle, the Claimant should pay for the vehicle or return it to the Defendant.

In the final analysis, I find and hold that the Claimant has not discharged the burden of proof thrust on him by law and he is thus not entitled to the reliefs as claimed in his amended statement of facts. Having not made out a prima facie case, there is nothing for the Defendant to rebut. Consequently, a consideration of the defence is unnecessary. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien[supra]and Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [supra].

  1. This leads me to a consideration of the Defendant’s counterclaim. By the amended statement of defence and counterclaim, the Defendant claimed against the Claimant for:

  1. The sum of N7, 000,000 [seven million naira] only being the total cumulative money paid to Crystal Focus Ventures which forms part of a series of secret, unauthorized, illegal, wrongful and inappropriate dissipation of the funds [i. e. assets] by the Claimant.

  1. Interest on the above stated sum of money at the rate of 21% from 30th October 2014 until judgment and thereafter at the rate of 10% until final liquidation.

  1. The sum of N1, 000, 000 [one million naira] only as legal cost [for] instituting this counterclaim.

The burden of proving the counterclaim rests squarely on the Defendant/counterclaimant. See section 131 of the Evidence Act, 2011, which has been reproduced above and the case of U. B. N. Plc v. Ravih Abdul & Co. Ltd. [2019] 3 NWLR [pt.1659] 203 at 224.

The evidence in proof of the reliefs is contained in paragraphs 9, 10, 11, 12, 13, 14 and 18 of the Defendant’s witness’ statement on oath. The summary of the evidence of the Defendant’s witness, Mr. BabayiTarofi, as it relates to the counterclaim is that the Claimant is indebted to the Defendant having received, for no reason whatsoever, through Crystal Focus Ventures illegal and inappropriate payment of N7, 000,000 from the funds of the Defendant, which were described in the Defendant’s books as transfer to CBN and that the Claimant’s misconduct contributed to the Defendant’s failure as a going business concern. He stated that had the Defendant been aware of the scope and how widespread these payments were, it would have summarily dismissed the Claimant and taken steps to recover the payments through appropriate legal means. He relied on the Claimant’s sworn declaration dated 16th September 2014 which had earlier been admitted in evidence through the Claimant and marked exhibit 8. He therefore prayed the Court to grant judgment to the Defendant in terms of the reliefs sought in the counterclaim.

Under cross-examination, he stated that the Claimant had no entitlement at the time he was laid off. He acknowledged exhibits 1 and 2 but stated that the Defendant ceased operations in 2013 and they were asked to liquidate the Defendant although that has not been done. He identified the Defendant’s staff handbook which was admitted in evidence as exhibit DW1D. He confirmed paragraph 10[ix] of his statement on oath where reference was made to a special purpose entity, CDL Assets Management Limited, a subsidiary of the Defendant but could not recognise the memo from CDL Assets Management Limited dated 17/12/12. The document was received in evidence and marked exhibit DW1E. He confirmed that Conso-Cooperative is a staff cooperative and not a subsidiary of the Defendant. Conso-Cooperative Multipurpose Society memo dated 31/1/13 was admitted in evidence and marked exhibit DW1F.

  1. Although, the Claimant filed his reply to the statement of defence and defence to counterclaim on 23rd March 2015, there was no accompanying statement on oath which means that the defence is not supported by evidence and thus deemed abandoned. See Action Congress of Nigeria & Anor. v. Mr. Adeyemi Harrison &Ors. [2012] LPELR-8004[CA] at pages 11-12. The effect, therefore, is that the Claimant has no defence to the counterclaim and is deemed to have admitted as true the averments in the amended statement of defence and counterclaim.Invariably, the burden of proof placed on the Defendant/counterclaimant becomes minimal. See Olaleye v. Wema Bank Limited & Anor. [2010] LPELR-4744[CA] at page 31.

  1. Let me observe the attempt by the Defendant to amend its counterclaim through its witness’statement on oath by adding new reliefs [ii] and [iii] for recovery of possession of the Volkswagen Passat car and the alternative claim for payment of N10, 000,000 being the fair market value of the car. These claims do not appear anywhere in the amended statement of defence and counterclaim. The law is settled that a party cannot unilaterally amend its process without leave of court. See Order 26 rule 2 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and the case of Ayebakuro v. Tariah&Ors. [2014] LPELR-22675[CA] at page 5. In any event, the statement on oath of the Defendant’s witness is not the place to amend the Defendant’s process. Evidence must align with the pleading, and where this is not done, the evidence will serve no useful purpose to the Claimant, in this case, the Defendant/counterclaimant. See Atamah& Anor. v. Ebosele&Ors. [2008] LPELR-3815[CA] at page 20. This is so because a claim is circumscribed by the reliefs properly claimed in the pleading, andaCourt is bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. See Gabriel Ativie v. Kabelmetal Nig. Limited [2008] LPELR-591[SC] at page 12.The result, therefore, is that the purported amendment of the Defendant’s processes through addition of new reliefs [ii] and [iii] is null, void and of no effect whatsoever and I so hold.

  1. In pleading facts relating to its claim for N7, 000,000, the Defendant made allegationsbordering on commission of a crime. In paragraph 6 of the amended statement of defence and counterclaim, the Defendant averred thus:

“6.    The Defendant states further that the Claimant had been paid and received, for no reason whatsoever, through a business name bank account of Crystal Focus Ventures, business name registered and solely operated by the Claimant, secret, illegal, unauthorized, wrongful and inappropriate payments, from the funds of the Defendant, a total cumulative [sic] sum of N7, 000,000.00 [seven million naira only] which payment forms part of a series of secret, unauthorized, illegal, wrongful and inappropriate dissipation of the funds [i.e. assets] of the Defendant by the previous management of the Defendant in flagrant violation of his duty of fidelity to his employer.”

This averment was repeated in paragraph 10 of the Defendant’s witness’ statement on oath and the standard of proof is beyond reasonable doubt.This is so whether or not the Claimant filed a defence to the counterclaim. Section 135[1] of the Evidence Act, 2011 provides that:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”

See also Alhaji Isiyaku Yakubu v. Alhaji Usman Jauroyel&Ors. [2014] LPELR-22732[SC] at page 26. Proof beyond reasonable doubt has been held to mean proof of the essential ingredients of the offence. SeeAdeyinka Ajiboye v. Federal Republic of Nigeria [2014] LPELR-24325[CA] at pages 25-26.

In this case, the ingredients include receipt of the sum of N7, 000,000.00 knowing it to be proceeds of an illegality. What is the evidence in proof of this allegation?The first is payment of the sum of N7, 000,000.00 through Crystal Focus Ventures, a business name allegedly registered and solely operated by the Claimant. Secondly, it was alleged that the transfers were described in the Defendant’s books as transfer to CBN and lastly, that the Claimant’s misconduct contributed to the Defendant’s failure as a going financial services business concern. We will take it in that order. In proving that Crystal Focus Ventures was registered and solely operated by the Claimant, the Defendant tendered exhibit 8, statutory declaration by the Claimant dated 16th September 2014. On page 2 of this document under the column “full name of company”, the Claimant stated Crystal Focus Ventures. But, under relationship of related party to the company, the Claimant wrote “joint shareholder with friends”. There is no other evidence to prove that this company was registered and solely operated by the Claimant. It is my respectful view that exhibit 8 alone is not sufficient to prove that Crystal Focus Ventures was registered and solely operated by the Claimant. It is settled law that the status of a company can only be proved by tendering its registration documents, in this case, the certificate of registration and particulars of proprietors. See Federal Board of Inland Revenue v. Integrated Data Services Limited [2009] LPELR-8191[CA] at pages 31-32.

  1. Secondly, there is nothing to show that the Claimant is the sole signatory of the account of Crystal Focus Ventures.There is nothing before me to show that the payment of the sum of N7, 000,000.00 to Crystal Focus Ventures was entered in the Defendant’s books as transfer to CBN. The relevant entries were not tendered. The oral testimony of the Defendant’s witness alone will not suffice. Documentary evidence is necessary to test the Defendant’s witness’ oral testimony. See ASCA Bitumen Company Limited v. Haruna Isah [2016] LPELR-40778 [CA] at page 23 andOtaigbe v. Bendel Cement Company Limited [2014] LPELR-22763[CA] at page 20.This was not produced and renders the testimony doubtful.

Lastly, it has not been shown that the Claimant was part of the discredited management team. His name does not appear on exhibit DW1C and there is nothing to show that he is being investigated for fraudulent transactions. The Defendant’s assertion that the Claimant’s misconduct contributed to the Defendant’s failure as a going financial services business concern is therefore without evidence. Under section 135 of the Evidence Act, 2011, the burden of proof of an allegation of crime does not shift. In Labaran Abdul v. Hon. Isa Garba&Ors. [2010] LPELR-9132[CA] at page 51, Tur, J.C.A, had this to say:

“The cardinal principle of law is that the commission of a crime by a party must be proved beyond reasonable doubt. This is the law laid down in Section 138[1] of the Evidence Act. The burden never shifts.”

In the circumstance, I find and hold that the Defendant has not discharged the burden of proof cast on it by section 135[1] of the Evidence Act, 2011 that the sum of N7, 000,000.00 was illegally paid to Crystal Focus Ventures on behalf of the Claimant.

  1. The next claim is for 21% interest on the sum of N7, 000,000.00 from 30th October 2014 until judgment and thereafter at the rate of 10% until final liquidation. The basis of award of interest in a suit is settled. The power of the Court to award interest before judgment is based on statute, contract, common law or some equitable principles. The nature of pre-judgment interest makes it mandatory that facts in support thereof must be pleaded and evidence led to support the claim. See Olam [Nigeria] Limited v. Intercontinental Bank Limited [2009] LPELR-8275[CA] at pages 60-62. There is no pleading and evidence in support of the claim for pre-judgment interest. There is a difference between pleading and reliefs claimed, one cannot be used for the other. See Matthew Iyeke& 25Ors. v. Petroleum Training Institute & Anor. [2019] 2 NWLR [pt.1656] 217 at 240. The claim for pre-judgment interest has not, therefore, been proved.

This Court is empowered by Order 47 rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award interest on any judgment sum. No monetary judgment has been entered in favour of the Defendant, consequently, the question of award of post-judgment interest does not arise.

  1. The next relief is a claim for the sum of N1, 000, 000 [one million naira] only as legal cost [for] instituting this counterclaim. This claim is in the nature of a claim for special damages which must be specifically pleaded and strictly proved. See U. T. C. Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 34. The facts giving rise to this claim were not pleaded and there is nothing in the Defendant’s witness’ statement on oath in proof thereof. This claim therefore has not been proved.

Generally, cost follows events. By Order 55 rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, award of costs is discretionary, which discretion, in all circumstances, must be exercised judicially and judiciously. The Defendant/counterclaimant has not proved its counterclaim, thus, the justification for award of cost has not been made out.

  1. On the whole, the principal claim fails in its entirety and it is hereby dismissed. Also, the counterclaim fails and it is dismissed. There shall be no order as to costs. Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

29/10/19

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