Pharm. Obateru Olufemi Abidemi -VS- Fidson Healthcare Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATED: 17^th FBRUARY 2020 SUIT NO.: NICN/AK/06/2018

BETWEEN

PHARM. OBATERU OLUFEMI ABIDEMI ………… CLAIMANT

AND

FIDSON HEALTHCARE PLC ………… DEFENDANT

REPRESENTATION:

Rotji E. Nyokke Esq. for the Claimant

Olalekan Akinrinsola, Esq. for the defendant

JUDGMENT

The claimant instituted this action vide a Complaint filed before this court on the 30^th January, 2018, claiming against the Defendant as follows:

(a) A DECLARATION that the refusal, neglect and or failure of the defendant to release to the claimant his original certificate of Bachelor of Pharmacy deposited with the defendant at the time of employment having resigned over eight years ago after it was demanded for is unlawful and a flagrant violation of the claimant’s right to his personal property.

(b) A DECLARATION that the refusal, neglect and or failure of the defendant to release to the claimant his original certificate of Bachelor of Pharmacy after it was demanded for amounts to Detinue.

(c) AN ORDER OF COURT directing the defendant to release to the claimant his original certificate deposited with the defendant at the time of entry into the employment of the defendant.

(d) The Sum of Five Million Naira (N5,000,000.00) only being general damages for the violation of his fundamental rights by the refusal to release to the claimant his original certificate of Bachelor of Pharmacy after almost 9 years after he resigned from the employment of the defendant and negligently caused the claimant psychological trauma, mental pains, distress, suffering, embarrassment and inconvenience.

The claimant filed along with the complaint the statement of facts, statement on Oath, list of witnesses and documents to be relied on.

The claimant’s case is that he was employed by the defendant vide a letter dated 31^st August, 2007, and as a condition for the employment, he was required to deposit his Bachelor of Pharmacy degree certificate with the company, which he did and same was duly acknowledged by the defendant. He pleaded that on the 28^th of December, 2009, he resigned his appointment and the defendant accepted the resignation vide letter dated 5^th February, 2010. The claimant averred that he wrote three letters to the Defendant between 2013 and 2016 demanding for the return of his original certificate which is in the custody of the defendant to no avail. He also pleaded that his fundamental right was violated by the defendant and he has suffered psychological trauma, mental pains, distress, embarrassment and inconvenience as a result of the defendant’s refusal to release his certificate, whereof he claims against the defendant as aforestated.

The defendant filed its statement of defense in this suit after regularizing same, which was deemed properly filed on 3^rd May, 2018. The defendant denied all material allegations in the statement of facts, and averred that the claimant was employed as a Medical Representative by the company vide a letter dated 31^st August, 2007, which contains the terms and conditions of his employment. It was averred further that one of the terms of the employment is that the original degree certificate of the claimant must be deposited with the Defendant to serve as security against theft of the defendant’s funds and other sharp practices. The defendant pleaded further that the claimant accepted the conditions and endorsed the acceptance column of the letter of employment.

The defendant stated that as a Senior Medical Representative, the claimant had three channels of distribution: (a) Seed stock (b) Trade, and (c) Institutions. The defendant alleged that on several occasions, the claimant sold goods to customers and refused to remit the proceeds to the company as a result of which, he was asked to proceed on two weeks suspension without pay with effect from 7^th July, 2009. It is the defendant’s case that the claimant suddenly resigned his appointment on the 28^th of December, 2009, with an outstanding indebtedness of N9,234,163.00.00k after reconciliation of the accounts.

The defendant denied accepting the resignation of the claimant and averred that the persistent refusal of the claimant to liquidate his indebtedness left the defendant with no other option but to report the case to the Police. The defendant further pleaded that its refusal to release the claimant’s original certificate is because of his continued indebtedness to the company and denied violating the right of the claimant. It thereafter urged the court to dismiss this action with cost, as it is frivolous, misconceived, and a gold digging exercise.

COUNTER CLAIM

The defendant filed a counter-claim along with his defence wherein it averred that the claimant is owing the company a sum of N9,234,163.00k being unremitted proceeds from the sale of drugs sold by the claimant, and seeking the following reliefs:

(a) The sum of N9,234,163.00 being proceeds from the sale of drugs by the Claimant to the Defendant but which he has willfully refused to remit to the Defendant despite repeated demands.

(b) Interest on this sum at the rate of 25% per annum from the 21^st of March, 2016 till judgment is delivered and thereafter at 23% per annum until the judgment debt is paid.

The claimant filed his reply to the statement of defence and defence to counter-claim on the 10^th May, 2018, wherein he denied the assertions therein.

He averred that the defendant’s customers have paid the sum claimed by the defendant directly to the defendant through cheques or direct transfer. He specifically denied the averment in paragraph 13 of the defence and stated that he did not refuse to remit the proceeds of the goods he sold to the defendant and was never queried for same. He denied receiving any e-mail asking him to proceed on two weeks suspension, but confirmed that he gave a month notice in his resignation letter to the defendant, and same was received and accepted by the defendant through the proper channel.

The claimant averred further in his reply, that he only resorted to filing a suit against the defendant when the company failed to respond to his numerous letters, and the defendant used the Police to arrest and handcuff him from Osogbo to Ibadan. He denied being indebted to the defendant and averred that there is no basis for the continued detention of his certificate after he has made a formal demand for it.

DEFENCE TO THE COUNTER-CLAIM

The claimant denied all the averments contained in the counter-claim, and pleaded that the counter-claim of the defendant is statute barred and as such this court lacks jurisdiction to hear and determine same. He added that the counter-claim is frivolous, gold digging, misconceived and is liable to be struck out with substantial cost.

Trial commenced in this suit on the 9^th of May, 2019 with the claimant testifying for himself as CW1, he adopted his witness statements on oath and tendered several exhibits which were admitted and marked Exhibits OT1 – OT11 (i – viii). He was cross examined and thereafter closed his case. The defendant on its own part opened its defence on the 17^th June, 2019, by calling one Bunmi Ajagunna, a Business Manager of the Defendant as DW1. He adopted his witness statements on oath and tendered several Exhibits which were marked Exhibits FD1 – FD12. DW1 was also duly cross-examined and the defence also closed its case. The suit was adjourned for adoption of final written addresses and parties adopted their final written addresses on the 18^th of November, 2019 and the case was adjourned for judgment.

The defendant’s final written address was filed on 10^th September, 2019 wherein Olalekan Akinrinsola, Esq. of counsel for the defendant formulated two (2) issues for determination to wit:

Whether the Claimant has proved his case to entitle him to the reliefs sought and;
Whether the Defendant is entitled to the counter claim sought.

On issue one, learned counsel submitted that for the Claimant to be entitled to grant of declarative reliefs, he must establish before the court that he is entitled to such reliefs, and on this the Claimant has failed. He cited the case of OYINLOYE VS. ESIKIN (1999) 10 NWLR (Pt. 624) 540 at 549.

Learned counsel submitted that it is not in contention that the Claimant submitted his certificate to the defendant, or that the Defendant is in possession of the certificate, but the point of dispute is whether or not the Claimant is entitled to have his certificate returned after his resignation from the defendant.

The defence counsel submitted that the Claimant has failed to establish the manner in which his legal right was breached by the Defendant, having admitted that it was part of the terms of his employment that his certificate will be deposited with the Defendant. He relied on Exhibit FD11 and posited that it is the law that admitted facts requires no further proof, citing Section 123 of the Evidence Act, 2011 and Komolafe v. State (2018) LPELR-44496 SC, amongst others.

He argued that the evidence of the Claimant is unreliable and misleading, the Claimant having led evidence in this suit that his account was cleared at the point of his exit from the employment in year 2009, and contradicted this same assertion with the content of Exhibits OT6 and OT11 (i – viii) before this court. He argued that by Exhibit OT6, the Claimant made payment to the Defendant after he supposedly resigned, and added that Exhibit OT11 (i-viii) which came into existence after the claimant’s purported clearance by the Defendant all points to the fact that the Claimant is either lying or the said documents are not genuine. He added that the claimant admitted under cross examination that he still made payment to the Defendant after his exit from the employment, and posited that oral evidence cannot be allowed to vary or add to documentary evidence. He relied on Section 125 of the Evidence Act, 2011 and Omiyale v. Wema Bank Plc (2017) 12 NWLR (Pt. 1583) 300 at 309. John Okorishe v. Nigerian Gas Company Ltd (2017) LPELR-42766SC and the locus classicus case of Macfoy v. UAC Ltd (1962) AC 152.

Learned counsel pointed out that the defendant denied the authorship of Exhibit OT5, but the Claimant surprisingly never made any attempt to clarify the allegation surrounding the said Exhibit. He stated that it is trite law that the burden of proof in a civil suit is on the party who makes the assertion, citing Mogaji v. Odofin (1978) 4 S. C. 91, and concluded that Exhibit OT5 is not a reliable document and did not emanate from the Defendant.

Learned counsel argued that the contradictions in the evidence of the Claimant are not minor discrepancies that can be overlooked by this Court and relied on the Apex Court’s decision in the case of EMEKA v. OKORAFOR (2007) 11 NWLR PT 1577 410. He submitted that a witness cannot be allowed to approbate and reprobate at the same time and cited several authorities.

Learned counsel argued that the Claimant’s certificate was lawfully withheld by the Defendant, and the parties in this suit clearly understood the policy of the Defendant on same. He stated further that the terms and condition between the parties were agreed upon right from the onset and the court is enjoined to enforce the mutually agreed term of the defendant, he cited UBN v. Odusote Bookstores Ltd (1995) 9 NWLR (421) 558. He argued further that the failure of the Defendant to respond to the ultimatum of the claimant in Exhibit OT8 cannot constitute a waiver or act as a substitute for the facts on ground.

On issue two, counsel submitted that it is trite law that a counter claim is an independent and distinct action, and cited Jeric (Nig.) Ltd. V U.B.N. Plc (2000) 15 NWLR (Pt. 691) 447 at 463. He submitted that the Defendant is entitled to the reliefs in the counter claim, as the evidence available in this suit has established the fact that the Claimant converted the company’s money. He added that it is a principle of law that a party can rely on both oral and documentary evidence of his adversary in support of his case and relied on UMAR V. GEIDAM (2019) 1 NWLR (PT.1652) 29, and Section 21 (1) of the Evidence Act, 2011.

The defence counsel submitted that Exhibits OT6, OT7 and FD7 all supported the counter claim of the Defendant, and the attempt of the claimant to discredit Exhibit FD7 cannot stand, giving that the Claimant did not categorically deny the averments in the counter claim. He added that it is trite law that general traverse is evasive, and the plaintiff’s averment must be met by the Defendant’s frontally and categorically, otherwise it is deemed admitted. He relied on the case of ATUCHUKWU V. ADINDU (2012) 6 NWLR (PT.1297), and argued that the Defendant has discharged the onus placed on it by law through credible and cogent evidence to support the counter claim.

He disputed the argument that the claim is statute barred, and submitted that the correspondence between the parties kept the claim alive. He finally urged the Court to dismiss the claims of the Claimant for being unmeritorious while granting the counter claim.

The claimant’s final address filed on the 4^th of October, 2019, and adopted at the hearing, formulated three issues for determination, to wit:

1) Whether from the totality of the pleadings and evidence on record (oral and documentary) the claimant has proved his case on the preponderance of evidence and is entitled to the entire reliefs sought?”

2) Whether the Counter-Claim of the defendant/counter-claimant is not statute barred and liable to be dismissed?

3) Whether the defendant has proved its Counter-Claim and is entitled to a judgment in their favor?

On issue one above, Rotji E. Nyoke Esq of counsel for the claimant submitted that whoever desires a court to give judgment to any legal right or liability, on the existence of facts which he asserts, must prove that those facts exist. He cited Sections 131 (1), 132 and 133 of the Evidence Act 2011; and the case of U.I.T.H.M.B Vs AJIDE (2006) ALL FWLR (Pt. 326) Pg. 282 at 304, H.

Learned Counsel submitted further that from the evidence available in this case the claimant has been able to establish the fact that his original certificate is with the defendant and the defendant has refused/neglected to release the certificate despite the demand for same. He state the requirements in an action for Detinue citing Wema Bank Plc v A.T. & E. Co. Ltd. (2017) All FWLR (Pt. 881) 1007 at 1034 A.C, and submitted that the claimant has fulfilled the requirements to succeed in an action for Detinue.

The claimant’s counsel queried whether the defendant is justified to keep the original degree certificate after a demand for its release. He also pointed out that the Claimant resigned in 2009 (Exhibit OT4) and his resignation was accepted in 2010 vide Exhibit OT5, he added that the claimant thereafter wrote several letters to the defendant on the issue of his alleged indebtedness without any response from the defendant. However in 2016, the defendant wrote Exhibit OT7 to the Claimant, to which he responded with Exhibit OT8, learned counsel pointed out that the assertions in Exhibit OT8 were not in any way denied by the defendant, rather, the Defendant admitted same in Paragraph 22 of the Statement of Defence and paragraph 22 of the deposition of DW1, lending credence to the assertion of the Claimant that he met with an agent of the defendant, who exonerated and cleared him. He submitted that it is settled law that silence in circumstances in which reply is obviously expected, as in the instant case, raises an irrefutable presumption of admission by conduct. He cited Zenon Pet. & Gas Ltd. v. Idrisiyya (Nig) Ltd (2006) All FWLR (Pt 312) 212 at 2140, D-E. and the case of Doyin Motors Ltd. V. SPDC (Nig) Ltd &ors (2018) LPELR – 44108(CA), Rotji E. Nyoke, Esq. for the claimant submitted that although the defendant denied accepting the Claimant’s resignation, it failed to proof that the resignation was rejected for any reason.

Learned Counsel submitted on the claim for N5,000,000.00 (Five Million Naira) general damages that the power to award damages by the trial court is exercised in the circumstances of a judicious estimation of the loss to the victim once a breach of right has been established. He submitted that the claimant has proved his case before the court on the preponderance of evidence in this case and is therefore entitled to all the reliefs sought.

On issue two, which is on whether the counter claim is statute barred, learned counsel argued that the contention that an action is statute barred is in effect a postulation that the Court has no jurisdiction to hear and determine a suit, which in this instance suit is the defendant’s Counter-Claim. He maintained that the Counter-Claim in this suit is statute barred as it was filed outside the 6 years limitation period allowed by the Limitation law of Ondo State. He reasoned that it is in evidence that the Claimant resigned from Defendant’s Company by a letter dated 28^th December, 2009, effective 28^th January, 2010 and this fact is undisputed. He submitted that in determining whether an action is statute barred, the court is expected to examine the Writ of Summons and the Statement of Claim to ascertain when the cause of action arose. He added that in the instance suit, the process to consider in determining when the cause arose is the Counter-Claim, and cited Ayonromi v. NNPC (supra) at 206, para. G and surmised that by paragraph 3 of the Defendant’s Counter-Claim, the cause of action arose on 29^th April, 2010, while the claim was filed on 30^th April, 2018, i.e. 8 years after the cause of action arose.

In support of this contention, learned Counsel cited Section 4 (1), (a) and (d) Limitation Law of Ondo State; which provides that an action founded on simple contract or recovery of monetary sum shall not be brought after the expiration of six years from the date the cause of action arose. He also cited FMC Corp. v. SCOA Pet. Services Ltd. (2016) All FWLR (Pt. 828) 852, and stressed that the effect of not filing an action within the period provided by the Limitation Law is that the right is extinguished. He further posited that a Limitation Law removes the right of action, the right of enforcement, the right of judicial relief and leaves the plaintiff with a bare and empty cause of action which cannot be enforced, citing Yare v. N. S. W. I. C. (2013) All FWLR (Pt. 709 at 1057, C-D; 1060, D-E. He urged the court to hold that the Counter-Claim is incompetent and liable to be dismissed.

Learned counsel submitted further that DW1 called by the defendant does not have personal knowledge of the facts upon which he testified, and by his deposition, his entire testimony was based on “available record in the defendant’s office and I verily believe same to be true…” He added that Exhibit FD2 tendered by the DW1 has no relevance or value in this case and in the same vein, he contended that Exhibits FD3 and FD4 supports the case of the claimant in that he submitted his original certificate to the defendant citing Exhibit OT3. The claimant’s counsel pointed out that Exhibits FD5 and FD6 tendered by DW1 are unsigned documents and therefore worthless. He added that Exhibits FD7, FD8 and FD9 tendered by DW1 are contradictory and self-defeating, pointing out that the Exhibits revealed 3 different versions of the alledged indebtedness of the claimant. He therefore surmised that the documents are self- contradictory and have destroyed what they seek to prove. He cited Olly v. Tunji (2012) All FWLR (Pt. 654) 39 at 65, C- and urged the court to hold that the defendant has failed to prove its case on the balance of probabilities.

On the defendant’s contention that Exhibit OT 5 did not emanate from the defendant, counsel stated that the document was signed and dated 5^th February, 2010 and is on a letter headed paper of the defendant, and any contrary assertion is an allegation of forgery which must be proved beyond reasonable doubt. He cited Section 135(1) of the Evidence Act, 2011, and added that Exhibit OT5 enjoys a presumption of regularity, in the absence of proof to the contrary and relied on Section 167 (c) and 168 (1) and (2) Evidence Act, 2011.

In response to the defendant’s argument that the exchange of correspondences between the parties stopped the time from running under a limitation law, Counsel argued that this is erroneous and cited S. P. D. C. N. L. v. Ejebu (2013) All FWLR (Pt. 703) 2029 at 2043, B-C.

The claimant’s counsel concluded that the claimant led credible, cogent and believable evidence in support of his case and urged the court to grant all the claimant’s reliefs and dismiss the counter-claim with substantial cost in favor of the Claimant.

The Defendant’s reply on points of law was filed on the 15^th of November, 2019. Learned defence counsel countered the claimant’s argument that the defendant is deemed to have admitted the contents of the Exhibits OT6, OT8 and OT9, and submitted that it is fallacious and the court cannot infer admission by conduct in this instance. He referred to Section 4 and 5 of the Evidence Act, 2011 and the cases of: Ogunanuhu & ORS V. Chiegboka (2013) LPELR – 1998 – SC P23 PARAS D-G per Galadima JSC.

In reply to the issue of forgery of Exhibit OT5, counsel stated, that the defendant pleaded those facts in paragraph 18 – 19 of the statement of defence, and supported same with evidence of its sole witness in paragraphs 18 – 19 of the Defendant’s witness statement on Oath. He submitted that these evidence were never discredited nor attacked, and that proof beyond reasonable doubt does not connote proof beyond all shadow of doubt. He cited OLOWU v. BUILDING STOCK LTD (2018) 1 NWLR (Pt. 1601) 345 at 364 and Section 139(2) of the Evidence Act, 2011. Learned defence counsel referred to the admission of the claimant that staff and employment matters is being handled by Human Resources Department of the defendant and it is the practice of the Defendant to include the name and designation of the author in any correspondence emanating from the Company.

On the evidence of DW1, defence counsel argued that the defendant being a corporate body can call any witness in support of its case, whether or not the witness has personal knowledge or not. He cited SALEH v. B.O.N. LTD (2006) 6 NWLR (Pt. 976) 316 at 326 – 327.

He maintained that there is no contradiction as to the actual money converted by the claimant and referred to Exhibit FD8 and the evidence on record that, the payment made by the claimant along with the reconciliation in Exhibit OT10 and OT11 reduced the sum claimed by the defendant. He referred the court to paragraph 23 of the statement of defence and paragraph 23 of the deposition of DW1 and reiterated that the claimant admitted in Exhibit OT6 and under cross-examination, that he made payment after his exit which reduced the amount stated in Exhibit FD8. He therefore argued that the defendant can rely on the evidence of an adverse party that supports his case, citing UMAR v. GEIDAM (2019) 1 NWLR (Pt 1652) 29.

Learned counsel also referred to the claimant’s admission in Exhibit FD8 that he was indebted to the Defendant and posited that facts admitted needs no further proof. He submitted further that neither the defendant nor its agent exonerated the claimant from any liability and the defendant did not at any point concede to being liable for Detinue. He relied on the decision UNIPETROL (NIG) PLC v. BURAIMOH (2004) 15 NWLR (Pt. 897) 641 at Para F – C, and submitted that the Defendant has the right to retain the claimant’s certificate because he did not successfully disengage from the defendant. He cited Mohammed M. Alhassan V. Ahmadu Bello University Zaria & Others (2009) LPELR – 8138, and added that paragraphs 5 and 9 of Exhibit OT6 constitutes an acknowledgment of the debt by the claimant and therefore revived the defendant’s cause of action with regards to the counter-claim being statute barred.

I have read all the processes filed in this suit, listened to the witnesses called and have studied and listened to the arguments of counsel on both sides in their final addresses. I have thereafter formulated four (4) issues that will best determine this case to wit;

Whether or not the claimant in this case is entitled to the return of his degree certificate from the defendant in view of the contract of employment.
Whether or not the counter-claim of the defendant is statute barred.
Whether or not the defendant is entitled to the reliefs in the counter claim.
Whether or not the claimant is entitled to his other reliefs in his claim.

On the first issue, the law is clear that where an employee contends the mode of termination of his employment, he retains the duty to prove that he was in the employment of the defendant and this he does by placing before the court the documents regulating his employment and by proving the infringement or breach of the terms. See Katto v. CBN [1999] 6 NWLR (Pt.607) 390. In the case of Layade v. Panalpina World Transport Nig. Ltd [1996] 6 NWLR (pt.456) 544 the court held that;

“in all contracts of employment, the Courts must be wary of looking outside their terms for the terms that govern the relationship between the employer and the employee, and where the terms spell out unambiguously how and when to terminate the employment and the termination is carried out in the manner provided by the terms, that termination is not wrongful. Parties must be bound by their contract and to look outside the terms of the contract to avoid termination makes no meaning of the contract”.

The law is trite that parties are bound by the terms of agreement freely entered into by them. See Olude v. Adeeso [2015] LPELR-25587 (CA), Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA). Okonkwo v. CCB (Nig) Plc [2003] 8 NWLR (Pt.822) page 382. Thus, the function of Court is to interpret the contract of employment in enforceable terms without more, See Arta Industries Limted v. N.B.C [1997] 1 NWLR (Pt. 483) Pg 593, para F. It is also the indisputable position of the law that for an employee to be successful in a claim for breach of contract of employment, the following conditions must be satisfied:

He must be in the employment of the employer.
He must place the terms and conditions of the Employment before the court.
The breach of the stated term of his employment.

The above conditions are predicated on the principle that a contract of employment is the bedrock upon which the claim of an employee rests, See Federal Mortgage Finance Ltd V. Hope Offiong Ekpo 2004 NWLR Pt 856 @100, where Ekpe J.C.A, held;

“It is the law that, he who asserts, must prove the positive of his assertion, if he is to succeed. When an employee or a former employee as in this case, complain that his employer or former employer as the case may be, is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the onus:- (a) To place before the court the staff conditions of service or the terms of the contract of employment, and (b) To prove in what manner the said staff conditions of service or the terms of contract of service were breached by the employer”

The claimant pursuant to the above tendered Exhibits OT1(letter of appointment) and OT2 (letter of confirmation of appointment). It is undisputed that Exhibit OT1 is the contract of employment between the parties in this suit and one of the conditions of the employment is that the claimant must deposit his credentials with the defendant, and this is well captured in paragraph 2 of Exhibit OT1, which reads as follows;

“………Your employment is subject to a satisfactory medical examination report, provision of three (3) credible referees, submission of original copy of degree certificate(s) for safe keeping and two guarantors acceptable to us. The guarantors shall execute a deed of guarantee in our favour…..”

The claimant pursuant to the above condition, deposited his degree certificate with the defendant and same was duly acknowledged by the defendant in Exhibit OT3. The content of Exhibit OT3 reveals the following;

June 26, 2008

We write to acknowledge the receipt of the following credential (original certificate) from MR OLUFEMI ABIDEMI OBATERU

BACHELOR OF PHARMACY

This is kept in the custody of the Company. This policy applies to all the Sales/Medical Representatives employed by the company

………………………

We undertake to return the credential to the staff if a due need arises, or upon successful disengagement from the services of the Company.

RECEIVED BY,

For: FIDSON HEALTHCARE PLC,

Sgd

ERNEST ONYEJEKWE.

Human Resources Manager

However, the point of dispute and the claimant’s grouse in this case is that upon his resignation, the defendant refused to release his credentials to him, while the defendant’s contention is that the claimant’s credentials can only be released upon a successful disengagement from the employment. The defendant also alleged that the claimant is still indebted to it from its record of accounts, thus the company is entitled to hold on to his certificate until he settles the indebtedness. The question that is in need of a resolution from the foregoing is the meaning of the phrase “successful disengagement”. A disengagement is capable of different meanings such as disconnect, detachment, release, separation or resignation etc. There are plethora of authorities on when an employee is deemed to have resigned his appointment, see Chief Akindele Ojo Samuel V. Oyedele Samuel Olugbenga (2009) 24 WRN 168, particularly at page 176, where Fabiyi J.C.A held as follows;

“It is clear to me that a notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. Refer to W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258. Put bluntly, resignation takes effect from the date notice is received by the employer or its agent. See Adefemi v. Abegunde (supra) at p. 28. In Benson v. Onitiri (supra), Ademola, OF (as then called) pronounced as follows:- “Further, it is clear on the authority of Riodan v. The War Office (1959) 3 All E.R 522, 588 that resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice”

It is based on the above reasoning that I hold that the phrase successful disengagement in an employment relationship is untenable, mainly because the right of an employee to resign from his employment is an absolute right that cannot be taken away under any guise. In other words, once an employee resigns and the notification is received by the employer, the employment is automatically terminated, and no other condition can be attached to its determination. Assuming even that the phrase “successful disengagement” was included in the contract of employment, this cannot preclude the claimant from resigning his appointment, as it will amount to forced labour and unfair labour practise which this court is mandated to guard against.

Moreover, a scrutiny of Exhibit OT1 reveals no such term as “successful disengagement” as what is contained in the said Exhibit is the term the employment is subject to;

“……..submission of original copy of degree certificate(s) for safe keeping ……” There is no way “safe keeping” can be termed to be “successful disengagement” and the attempt of the defendant to introduce this term into the contract of employment is tantamount to introducing a term extraneous to the contract of employment, which this court will not countenance. The defendant has argued and pleaded Exhibit OT3 in support of its case to withhold the degree certificate of the claimant’ I find that Exhibit OT3 is the acknowledgment of the submission of the certificate of the claimant, and cannot be interpreted to form part of the contract of employment, a document is said to speak for itself, and no oral evidence can be used to contradict the content thereof see Section 125 of the Evidence Act 2011 and the case of Teju Investment and Property Co. Ltd v. Subair [2016] LPELR-40087 (CA) the Court of Appeal per Sankey, J.C.A held thus;

“..it is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such a document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded…”

In addition to the above, I find that the right of the claimant to his credentials is immutable and cannot be taken away from him especially after the employment relationship has ceased. Allowing otherwise will amount to self-help by the employer, which is capable of being abused and a breach of the right of the employee to his personal property which is unlawful see Mr. Christian Spiess v Mr. Job Oni (2016) LPELR-40502(SC) wherein the Apex Court per Muhammad JSC that:

“My noble lords, Law is meant to provide peace, security, protection, concord and purposeful co-existence amongst citizens. No reasonable society will encourage resort to self-help for whatever reason and not certainly on mere suspicion.”

It is premised on the above that I find that the oral evidence of the defendant and Exhibit OT3 cannot vary the contract of employment i.e. Exhibit OT1 before this court and the refusal of the defendant to release the claimant’s degree certificate to him after his resignation is unlawful. I so hold.

On the second issue, which is whether the defendant’s counter- claim is statute barred or not. It is the claimant’s contention that the cause of action in this case arose on the 29^th April, 2010, while the counter claim of the defendant was filed on the 30^th of April 2018, eight years after the cause of action arose, and as such the claim is statute barred by virtue of Section 4 (1) (a) and (d) of the Limitation Law of Ondo State. The claimant added that by virtue of the above provisions, no action shall be commenced by a party 6 years after the cause of action arose in cases of simple contract or tort or any action to recover any sum of money. The defendant however countered this by arguing that the correspondence between both parties kept the claim alive, and that since the claimant had acknowledged his indebtedness to the defendant, the right of action will accrue from the date of the acknowledgment of the debt as provided by the Limitation Law.

I find that it is settled law that in the determination of whether a claim is statute barred or not, the court will only look at the complaint and statement of facts and in this particular instance, the counter claim of the defendant. An action is said to be statute barred when it is barred by the provision of the law or an enabling statute i.e. once the time limit in which certain actions or steps should be taken has lapsed, see Araka V. Ejeagwu [2000] 12 SC (Pt.1) 99; Daewoo Nigeria Ltd V. Project Masters Ltd [2010] LPELR-4010 (CA). Woherem J.P V. Emereuwa & Ors [2004] 6-7 SC 161; andMil. Admin, Ekiti State V. Aladeyelu [2007] 14 NWLR (Pt 1050 619; where the Supreme Court held that;

“For the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. I will however add, where one has been filed, it is from either or both these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs ‘cause of action’ . When that ascertained date is compared with the writ of summons or originating process filed in the Court. it can then be determined whether the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain the same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently, the Court is without jurisdiction to entertain same”

The vital question to ask in this case is, when did the cause of action arise?, a cursory look at the Complaint and the Statement of Facts before this Court reveals that this suit was filed on the 30^th of January, 2018, while the counter claim was filed 30^th April, 2018. It is on record that the defendant in this case predicated the counter-claim on Exhibits FD6 and FD8, dated 25^th June, 2009 and 29^th April, 2010 respectively, as pleaded in paragraph 3 of the counter claim. It is therefore deducible from the defendant’s averment that as at 29^th April, 2010, the defendant was aware that it has a cause of action against the claimant and as such, the cause of action can be narrowed down to April 2010. In other words, it is determinable that time started to run as soon as the cause of action arose in April, 2010. The settled position of the law is that further negotiations will not freeze time under a limitation law see Eboigbe v. NNPC [1994] NWLR (Pt.347) 649; however, the exception to this rule is if there is an admission of liability in the course of negotiation between the parties see Teigboren v. The Governor of Delta State & Ors [2014] LPELR-23220 (CA). In the instant case, the defendant’s contention is that Exhibit OT6 written by the claimant’s solicitor and dated 16^th May, 2013, is an admission of the claimant’s indebtedness to the defendant, and thus the defendant argued that the counter-claim is not statute barred. I have read Exhibit OT6 and I find it difficult to agree with the defendant’s counsel that Exhibit OT6 is an admission of indebtedness to the defendant by the claimant. I must say that there is nothing in this document that will amount to an admission, and for the sake of clarity, I will here reproduce the second paragraph of Exhibit 0T6 which reads;

“We have been informed and indeed confirmed that our client worked with your company between September, 2007 and December, 2009 when he resigned his appointment. During the pendency of his appointment with your company there were issues concerning his account which to the best of his knowledge have been resolved as at then.”

The defendant on its own part relied on paragraph 5 of Exhibit OT6, to support the contention that the claimant admitted his indebtedness to the company. The content of same is as follows;

“It is our considered opinion that the company needs first to reflect the payments so far made by our client and reconcile their account and permit me to say put their house in order before going on a wild goose chase which may not be in the best interest of the company or any other person at the end.”

A careful scrutiny of the two paragraphs above clearly reveals that the claimant rather than admitting any indebtedness to the defendant/counterclaimant, denied same and put the defendant to task to proof same. The words”….there were issues in his account which to the best of his knowledge have been resolved as at then…..” “…..reflect the payments so far made by our client and reconcile their account and permit me to say put their house in order before going on a wild goose chase…….” is informative and negates any admission. An admission of liability must be categorical and assertive to qualify as such, the content of Exhibit OT6 clearly reveals that it is not an admission of any indebtedness and cannot in the instant case freeze the time under the Limitation Law. In all, I find that that the cause of action in the counter-claim arose in 2010, and this action was instituted on the 30^th of January, 2018, while the counter-claim was filed on 30^th April, 2018, a period of approximately eight (8) years after the cause of action arose. It is therefore clear from the above stated that the defendant’s counter claim is clearly outside the six (6) year limitation period prescribed under Section 4(1) (a) and (d) of the Limitation Law of Ondo State, for an action in simple contract, tort and any action to recover any sum of money. The resultant effect of the above reasoning is, the counter-claim of the defendant is statute barred and is liable to be dismissed. Consequently, I find that the counter claim of the defendant in this suit fails as it is statute barred by virtue of Section 4(1) (a) and (d) of the Limitation Law of Ondo State, and is hereby dismissed. I so hold.

Notwithstanding the fact that I have held that the Counter- Claim of the defendant in this suit is statute barred, I will for the sake of evaluation of all the issues raised in this suit go on to consider the merits of the counter- claim of the defendant. The defendant counter-claims against the claimant for the sum of N9,234,163.00k being unremitted proceeds from the sale of drugs by the claimant. The claimant denied this claim by asserting that he is in no way indebted to the defendant. In proof of its case, the defendant placed reliance on Exhibits OT6 and FD 1-12. However, out of these documents, I find that Exhibits FD5 and 6 are unsigned. It is trite law that an unsigned document is worthless and commands no judicial value, where such document has been admitted in evidence it will be discountenanced. I will therefore will not ascribe any evidential value to the said Exhibits, See George Ikeli & Anor. V Terungwa Agber (2014) LPELR-22653(CA). I therefore hold that Exhibits FD5 and 6 being unsigned are worthless and are hereby consequently discountenanced.

The defendant’s reliance on the other Exhibits in proof of its Counter- Claim will now be examined. The defendant placed reliance on the purported admission of the claimant in Exhibit OT6, but I have held earlier that the said Exhibit OT6 contains no such admission and therefore cannot help the defendant’s case in this regard. Exhibit FD7 which is an email the defendant stated was sent to the claimant directing the claimant to proceed on suspension for his failure to recover N2,630,910.00, was also in contention as the claimant denied receiving same, during the course of trial. I find that Exhibit FD7 is an allegation against the claimant on his lack of efforts to recover a sum of N2,630,910.00, standing against the claimant, and cannot qualify as evidence of the claimant’s indebtedness to the defendant. A document is stated to speak for itself, an allegation of failure to recover a sum of money is clearly different from an indebtedness. On Exhibit FD8, I find that it is a list of names with sums outstanding against each customer’s accounts totaling N10, 591,833. Exhibit FD9 is the defendant’s letter of demand to the claimant for the payment of N9,234,163.00. I have evaluated the evidential value of these documents above, and I find that they fall short of the standard of proof required to prove the defendant’s counter-claim. In addition, these documents revealed contradictory sums and no evidence was proffered that the sum claimed was traced to the claimant or is in his possession. The defendant also did not deem it fit to call any of the customers listed in proof that they made payments to the claimant and he refused to remit same in proof of the alleged conversion of the remittances due to the defendant against the claimant. Meanwhile the claimant asserted and led evidence that each customer have their own accounts with the defendant and pay directly to the defendant, an assertion the defendant failed to traverse either expressly or by implication. The aggregate of the findings above is that the preponderance of the evidence in this suit is against the defendant’s conter-claim. In the light of this, I find that the defendant has failed to establish its counter-claim against the claimant in this suit and the counter- claim consequently fails as it is untenable and unmeritorious. I so hold.

Finally, on the fourth issue identified by me, i.e. whether the clamant in this suit is entitled to the reliefs sought in his claim before this court. The claimant in reliefs (A) and (B) seeks a declaration that the refusal of the defendant to release his original certificate despite his demand for it amounts to a violation of his right to personal property and a declaration that the defendant’s action amounted to Detinue. These reliefs are declaratory reliefs. It is trite law that declaratory reliefs are sought to make the court declare as established a legal and factual state of affairs in respect of a cause of action and the court will only grant a declaratory relief upon presentation of good and sufficient evidence. See Abeje v Alade (2010) LPELR-3561(CA). I have held earlier that the action of the defendant in withholding the credentials of the claimant in this suit is unlawful, therefore I find that relief A succeeds. I so hold.

The claimant also made heavy weather of a claim in Detinue, Detinue was defined by the Supreme Court in Julius Berger Nigeria Plc. v R.I. Omogui (2001) LPELR-1638(SC), as an action in rem for wrongful refusal to deliver chattel despite demand, in which the plaintiff may sue (1) for the value of the chattel as assessed and damages for the detention; (2) for return of the chattel or recovery of its value as assessed and also damages for the detention; and (3) for the return of the chattel and damages for its detention.

Although this relief is in tort, which ordinarily is outside the jurisdiction of this court, Section 254C (1) (a) of the 1999 Constitution confers jurisdiction on this court over civil matters relating to or connected with any labour, employment matters arising from the workplace and any other matters incidental or connected therewith amongst others. In the instance case it is undisputed that the subject matter of this suit arose from and is connected with the claimant’s employment under the defendant, and the court is seized of the jurisdiction to consider and pronounce on same. Furthermore, the position of the law is that where there is a right, a party must have a means of ventilating his grievance and is entitled to a remedy if injured in the process. Also, for an action in Detinue to succeed, the claimant must prove (1) that he is entitled to custody of the thing, the recovery of which he seeks, (2) that he has made a formal demand for the thing, and (3) the defendant has refused to return the chattel. See Chigbu v Tonimas Nigeria Ltd. & Anor. (2006) NWLR (Pt. 984) 189. Having held above that the defendant’s detention of the claimant’s degree certificate despite demand for same is unlawful, I am convinced that the claimant has established his claim against the defendant. Therefore, I find that the claimant’s legal rights to his certificate has been breached by the defendant’s unlawful detention of his personal property which will entitle him to a remedy in law. See Promasidor (Nig.) Ltd & Anor v Ashikia (2019) LPELR-CA/L/381/2013.

It is premised on the above that I hereby declare that the refusal, neglect and or failure of the defendant to release to the claimant his original certificate of Bachelor of Pharmacy is unlawful and a violation of the claimant’s right to his personal property. I so hold.

Flowing from the above, the claimant’s relief (C) succeeds and the defendant is hereby ordered to release the claimant’s original Bachelor of Pharmacy certificate deposited with the defendant at the time of his employment within the next 72 hours. I so hold.

On the claim for general damages, I find the 2019, Court of Appeal decision in Promasidor (Nig.) Ltd & Anor v Ashikia (SUPRA), very relevant in this suit, wherein Ogakwu J.C.A held as follows;

“The primary object of an award of damages is to compensate the Claimant for the harm done to him. See B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and AJAYI vs. AKAWA (2018) LPELR (44933) 1 at 28. In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage the loss which flows naturally from the defendant’s act. It does not have to be specifically pleaded. It suffices if it is generally averred. The general damages are presumed to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of exact calculation. It is quantified by relying on what a reasonable man’s judgment would be in the circumstance: ………..It was therefore proper for the lower Court to award the damages for the proven wrong done to the Original Claimant.”

The law is that an award of general damages lies primarily within the domain of the Court. In the discharge of this judicial function, an estimation of the loss suffered by the plaintiff is required to compensate the plaintiff for the loss suffered and it flows naturally from the wrong of the defendant. It is therefore in due consideration of the established fact that the defendant unlawfully detained the claimant’s degree certificate for over 10 years after his resignation, thus hampering his chances of getting another job that I am inclined to award general damages in favour of the claimant. The claim for general damages therefore succeeds and the defendant is hereby ordered to pay to the claimant the sum of N4,000,000 (Four Million Naira) as general damages for the unlawful detention of his Bachelor of Pharmacy Certificate. I so hold.

In conclusion, I find that the claimant’s action succeeds and for the avoidance of doubt, I declare and order as follows:

The refusal of the defendant to release to the claimant, his original Bachelor of Pharmacy certificate is unlawful.
The defendant is hereby ordered to within 72 hours of this judgment, release to the claimant, his Bachelor of Pharmacy certificate.
The defendant is hereby ordered to pay to the claimant the sum of N4,000,000 (Four Million Naira) as general damages.
All judgment sums awarded in this suit shall be paid within 30 days failure upon which it will attract a 10% interest per annum.

A cost of N200,000.00k cost is hereby awarded against the defendant.

COUNTER CLAIM

The Defendant’s counter-claim fails and is dismissed.

Judgment is accordingly entered

HON. JUSTICE A. A. ADEWEMIMO

PRESIDING JUDGE