IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 22nd day of May, 2019
SUIT NO: NICN/PHC/113/2017
BETWEEN:
ADEBANJO ADEWALE OLUDOTUN…………………………………………………………..CLAIMANT
AND
CWAY PORT HARCOURT CO. LIMITED………………………….…………………….DEFENDANT
Representations:
Collins Owobu for the Claimant.
C.M. Nwaka with Fidelis Michael for the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 3rd of November, 2017 along with a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
The suit was initially before the late Justice A. Ibrahim before same was reassigned to this court sometime in October, 2018.
The Claimant is by the Complaint and statement of fact claiming against the Defendant the sum of N2,621,400.00 (Two Million Six Hundred and Twenty-One Thousand, Four Hundred Naira) being:
- the sum of N924,000:00 (Nine Hundred and Twenty Four Thousand Naira only) being general damages for unpaid commission on sales turn-over from December 2016— May 2017.
- the sum of N40,000:00 being the cost of registration and licensing of the Mitsubishi, double cabin vehicle with licensing authority, Lagos State.
- the sum of N17,400:00 being the cost of fueling the vehicle in the month of May 2017.
- the sum of N640,000:00 being the cost of leasing the vehicle for 64 days at the rate of N10,000:00 daily.
- The sum of N1,000,000:00 being general damages for the pains claimant has passed through for non-payment of claimant entitlement and cost of this action.
- 21% monthly interest on the judgment sum from the date of this action till when judgment is delivered and 25% monthly post judgment interest on the judgment sum till the judgment sum is fully liquidated.
In reaction to the claims, the Defendant on the 24th of November, 2017 entered conditional appearance and filed a Statement of Defence which was accompanied by witness statement on oath, list of witnesses, list of documents and copies of the documents to be relied upon at trial.
Trial of the case commenced on 23rd of January, 2019. In opening his case, the Claimant himself as sole witness was called as CW1 and he adopted his witness statements on oath marked as C1. Through the CW1, 10 documents were tendered and admitted in evidence as Exhibit C2 – C11. Exhibit C9 was admitted under protest.
Arising from the statement of claim and witness statements on oath of the Claimant, the case of the Claimant is that the Claimant was employed sometimes in November 2016 as the Regional Sales Manager of the defendant, in which capacity he functioned till sometimes in May 2017 when he was unjustly placed on redundancy.
He posited that by the terms of contract of employment which by the letter of employment dated 22nd November 2016, he is entitled to sales commission on all the sales made through him for the company monthly. He added that the maximum target set or given to him was sale of 20,000 packs of the Cway products in Port Harcourt with a reward of N154,000:00 upon achievement monthly. Claimant posited that he sold far beyond the sales target set or given to him by the defendant, but instead of the defendant to pay him his sales commission, they decided to hide all the information relating to the goods sold by the company through the claimant. The claimant added that from November 2016 till May 2017 when he was unceremoniously placed on redundancy, his commission on sales of N150,000:00 monthly totaling N924,000:00 was not paid to him despite the fact that all the defendant’s products in the Port Harcourt branch of the company were entirely sold through claimant within that period.
The Claimant also posited that when defendant was having challenges in marketing as a result of lack of official vehicle for marketing operations, the defendant entered an arrangement with the claimant to use his own money to buy a vehicle to ease their marketing operation. The claimant, based on the agreement between him and the defendant, used his money to purchase a Mitsubishi, double cabin vehicle for official use to enhance his productivity with the understanding that the defendant will reimburse the claimant the sum of N40,000:00 being registration cost and required documentation of the vehicle; that the defendant will be responsible for the fueling and maintenance/servicing of the vehicle as it is being used as official vehicle for the company and that the defendant will pay the sum of N10,000:00 as daily lease for any day the vehicle is used for official assignment. Claimant added that the vehicle was used for official purpose from March 2017 to May 2017 when the claimant was unduly placed on redundancy. Claimant maintained that the Defendant only paid for the servicing/maintenance but refused to reimburse the claimant the sum of N40,000:00 being registration cost and required documentation of the vehicle and the sum of N 17,400:00 being the cost of fueling the vehicle for the month of May 2017 having paid for the month of March 2017 and April 2017.
Upon cross examination of the CW1 posited that before he was employed, he and the Defendant had discussions and agreement. He was issued a letter of employment which he signed and same is dated 22nd November, 2016. He posited that he did set up marketing department but he did not bring any person into the department as he did not have the power to employ. He agreed that he signed a redundancy letter and was paid off with the sum of N722,000 by cheque. He posited that by email he had communications with one mr. Alex before he was employed. He agreed that the email communications were negotiations between himself and Mr. Alex. He denied that the money he is claiming is for sales of table water and that his claim for commission is based on what the company sold. He posited that he does not know the quantity of product sold because he was not given sales report. He also posited that by April, 2017 he was still in the employment of the Defendant and not redundant.
Upon the discharge of CW1, Claimant closed his case while the Defendant opened theirs by calling a sole witness in person of Irekpor Ose as DW1 whose witness statement on oath was adopted and marked as D1. One document was tendered through DW1 and same was admitted in evidence as D2.
Arising from the statement of defence and witness statement on oath, the case for the defendant is that the Claimant was an employee of the Defendant but that the Claimant was redundant in the defendant company whereupon by mutual consent the parties parted their ways upon jointly signing and agreeing to part ways by Redundancy letter signed on 30/5/2017 and letter to the Claimant dated 30/5/2017 titled “pending payment for Oludotun Adebanjo (RSM)”.
The defendant further posited that the Claimant was employed while the defendant was still operating at it’s former factory location which was at Boskel Road, off Aba/port Harcourt Expressway by Tempo Filing Station Port Harcourt in the hope that when the defendant completed it’s new factory site and started bottling and production of the 750ml table water at its new factory, the Claimant will be useful in setting up the marketing department of the defendant but this did not happen as planned.
The defendant moved into its new factory site also located on Boskel Road, off Aba/Port Harcourt Expressway Port Harcourt in April 2017 and started producing the 750ml table water in May 2017 after the initial test run by which time the relationship between the Claimant and defendant had broken down and the parties started negotiating the terms upon which the Claimant would exit the company early in May 2017.
The Defendant posited that the Claimant stopped work as a staff of the defendant in the first week of May 2017 when the relationship between him and the defendant ended but the Claimant insisted that the terminal date of his employment with the defendant will be 30th May 2017.
The defendant added that before the Claimant left the employment in the defendant company, the defendant did not agree on any sales commission with him and the Claimant did not sell any product as alleged or at all and did not earn any commission.
They added that both the Claimant and defendant mutually agreed that the Claimant shall be paid the sum of N722,000 in full and final satisfaction of all entitlements due the Claimant from the defendant and the defendant paid and the Claimant collected the payment and left the defendant on mutually agreed terms. The Defendant denied giving the Claimant any target and the Claimant is not entitled to any sales commission as he was employed on salary basis. The defendant also denied any agreement with the Claimant to purchase any vehicle and did not have an agreement to reimburse the sum of N45,000 nor agreed to pay the Claimant N10,000 daily lease for the vehicle. The defendant maintained that they reimbursed the Claimant the cost of fueling and maintenance of the Vehicle as agreed. The defendant relies on the defence of accord and satisfaction to posit that the Claimant is not entitled to any claim.
Upon cross examination, DW1 posited that he is not aware that the vehicle was used for the company’s operations but he admitted remembering that the Defendant paid money for maintenance and fueling of the vehicle. He posited that the vehicle was not recorded for official assignments. He stated that he is not aware that there was arrangement for fueling and maintenance. He posited that the company has official vehicle but the Claimant went to bring his own car. He admitted that the MD issued the redundancy letter to the Claimant and the employment of the Claimant came to an end by the letter on the 30th of May, 2017. He also admitted that by the letter of employment of the Claimant, it was stated that the Claimant will be paid commission. He confirmed the MD’s email as exhibit C9 and admitted that the company keeps records but he is not in the department to provide the record of sale.
Upon discharge of the DW1, the Defendant closed their case and case was adjourned for adoption of final written address.
The Defendants filed their final address on the 28th of March, 2019 and same was adopted by counsel to the Defendant, C.N. Nwaka Esq., on the 29th of April, 2019. Arising from the said final address, counsel to the Defendant formulated two issues for determination to wit:
(a) Whether the Claimant was employed as a staff on salary or on commission basis?
(b) Whether the Claimant is entitled to his monetary claim?
In arguing issue one, counsel contended that the letter of employment dated 22/11/2016, Exhibit C3 shows that the Claimant was employed as Regional Sales Manager on a total salary package of N150, 000 monthly. Counsel added that the Defendant sells its products through independent distributors who come to the factory to carry products on cash and carry basis. He posited that there is no dispute as to the fact that the claimant was employed on salary basis and was not owed any salary.
Counsel further posited that there is inconsistency in the testimony of the Claimant as the Claimant claimed unpaid commission on sales turn-over from December 2016 — May 2017 amounting to N924.000. However, while at paragraph 3 of his statement on oath and paragraph 4 of the statement of claim the claimant averred that he is entitled to commission on all sales by him, during cross- examination on 7/2/2019, the claimant claimed that he is entitled to commission on all sales made by the company. Counsel contended that the said material contradiction and inconsistency in the evidence of the CW1 shows that the court must disbelieve the evidence of the claimant and hold that he is not a witness of truth. Counsel cited the case of Union Bank of Nigeria Plc vs. Clean Vision and Company Limited (2015) LPELR- 25900 (CA).
Counsel further posited that in view of the Claim by counsel to the Claimant that their client have record relating to the demand made, the Claimant refused to tender the said record and if such record exists, it would have been against the Claimant if tendered. He cited section 149(d) of the Evidence Act.
Counsel further contended that the evidence of the parties show that at the point of disengagement of the claimant, the parties signed exhibits C4 (redundancy letter) and exhibit C2 — letter dated 30/5/2017 wherein the claimant signed and collected his total entitlement of N722, 000. There was no mention of any outstanding entitlement of sales commission. The claim for sales commission is therefore an afterthought which the claimant failed to establish as a valid claim. In civil matters, the Onus of Proof is on a balance of probabilities. The claimant failed to prove his claim on a balance of probabilities and it deserves to be dismissed.
He concluded on the issue by urging the court to hold that the claimant was employed on salary basis to set up the marketing department of the Defendant for the sale of 750ml table water in the new factory site but he could not achieved that task before he left the company in May 2017.
In arguing issue two, counsel submitted that the claimant is not entitled to his claim of N924, 000 alleged commissions because he failed to show that he was entitled to any such commission. He added that the Claimant failed to establish that he earned any commission for sales of the 720ml of table water or other product through his personal effort.
With regards to claim of N40,000 cost of registration and licensing of the Mitsubishi double carbin vehicle, N17, 400 cost of fuelling and N640, 000 cost of leasing the vehicle at the daily rate of N10, 000, counsel contended that in the absence of any evidence showing that the claimant and defendant agreed to refund the claimant the alleged N40, 000 cost of registration/licensing, N17, 400 cost of leasing etc, the claimant cannot recover any of those monetary claims. He added that the claim of the Claimant is in contract and the claimant must prove a valid contract to be entitled to the remedy claimed.
With regards to claim for general damages of N1 million as well as interests, counsel contended that the position of the law on wrongful termination of employment and available remedy lies in damages calculated on the basis of what the employee would have earned for the period of agreed notice for terminating the employment. He cited the case of Oforishe vs. Nigerian Gas Co. Ltd (2017) LPELR 42766(SC).
Counsel posited thereon that the Claimant did not allege that his employment was unlawfully terminated or that he was entitled to notice or payment in lieu of notice but he willingly signed the redundancy agreement and signed and collected the agreed pay off of N722, 000. He added that interest is only payable on the agreement of the parties or by statute. He cited the case of Minaj Holdings Ltd vs. Asset Management Corporation of Nigeria (2015) LPELR 24650 (CA).
Counsel concluded by urging the court to resolve the issue in favour of the defendant. He also concluded that the claim of the claimant lacks merit and should be dismissed.
In reaction to the defendant’s final address, Claimant filed his final address on the 18th of April, 2019 and same was adopted by counsel to the Claimant, Collins Owobu Esq., on the 29th of April, 2019. Arising from the said final address, counsel to the Claimant formulated two issues for determination to wit:
- Whether from the evidence before the court the claimant have proved his case on the preponderance of evidence and balance of probabilities to enable the court grant the reliefs sought.
- Whether the claimant is entitled to general damages and interest considering the circumstances of this case.
In arguing issue one, counsel referred to paragraph 4 of the letter of employment of the Claimant tendered and admitted as Exhibit C3 and contended that the provision expressly shows that part of the remuneration of the claimant was sales commission. Counsel also posited that by exhibit C9, both parties agreed to the percentage.
Counsel further submitted that the work of the Claimant as Regional Sales Manager is to formulate a policy to capture independent marketers and to introduce the product to the independent marketers. Counsel maintained that it is therefore absurd for the defendant to argue that the marketers were independent marketers.
Counsel added that as a regional sales manager, all sales transaction passes through the office of the claimant. Therefore, whatever turn over or sales the company registered in the region during the period of his employment is deemed to emanate from the activities of the claimant. He posited that there is no contradiction in the evidence of the claimant in respect of his claim on commission on turn-over and for a piece of evidence to be contradictory it must state the opposite of what was earlier said as minor discrepancies does not amount to contradiction. He cited the case of ELIJI KINGSLEY EZE VS THE STATE (2013) 16 NWLR IPT 1380) @ 416 PARA D-G.
Counsel submitted that the evidence proffered in Exhibit C3 and C9 satisfied the requirement of proof in civil case and that the standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. He cited the case of STERLING BANK PLC Vs FALOLA (2015) 5 NWLR (Pt 1453) 405 AT 430 PARA E-F and urged the court to hold that there was agreement on payment of sales commission.
Counsel further contended that from the evidence before the court, the defendant refused to produce the record of sales for the period under dispute despite NOTICE to PRODUCE given in paragraph 7 of the statement of fact and paragraph 6 of the witness deposition.
Counsel argued that the law is trite that a party who refused to produce a document where such document is in custody of the person, is assumed that if produced, the document will be against the party who refused to produce it. Counsel relied on section 167 (d) of the Evidence Act.
Counsel also contended that the defendant have not proffered any evidence to prove that the claimant was employed to set up the marketing department of the defendant for the sale of 750ml table water in the new factory site and that he who alleges must prove. Counsel cited the case of MR. FORT IF:DANYI DIKE & ANOR VS KAY-KAY CONSTRUCTION LTD (2017) 14 NWIJR (PT. 1584) 1 @ 120 PARA. E-F.
Counsel further contended that there is nothing in Exhibit C2 which suggest that the N722,000:00 which was paid to the Claimant was the full and final payment to the claimant.
Counsel also added that in respect to reliefs b, c & d in the complaint, though there is no written agreement between the claimant and the defendant, but from the evidence before this court, it is obvious that there was oral agreement for the purchase and use of the vehicle. Counsel maintained that this is supported by the conduct of the parties.
He also posited that by paragraph 4 (d) of the statement of defence, the defendant admitted reimbursing the claimant for the cost of fueling and maintenance of the vehicle. He posited that this goes to show that the vehicle was in the use of the company and concluded that facts admitted need no further proof.
With regards to issue two, counsel submitted that the general principle is that assessment of general damages is based on the loss sustained by the injured party which loss was either or otherwise unavoidable consequences of the breach.
Counsel added that in the instant case, the claimant made a claim for general damages for the pains he passed through for non-payment of his entitlement and also claimed for interest. He added that the law is settled that if in a case of a commercial nature in which money should have been paid sometimes ago and was not paid it ought to carry interest and the person deprived of the money must be compensated. Counsel cited the case of UNION BANK OF NEGETUA PLC VS AWMAR PROPERTIES LTD (2018) 10 NWLR PT t626 PAGE 64 ( 9 1-92 PARES H-A
Counsel concluded by urging the court to grant the general damages and interest on the judgment sum.
By way of reply on point of law filed by the Defendant on the 29th of April, 2019, counsel to the Defendant C.N. Nwaka esq, posited that Claimant having alleged that he is entitled to sales commission on monthly turnover for all sales made through him and not the general sales of the defendant has the burden of proving the sales having averred that he has the said record of sales made by him.
Counsel added that failure to present the proof also affects the strength of Exhibit C3 and C9. Counsel argued that the Claimant must fail or succeed on the strength of his case and not on the weakness of the defence. Counsel cited the case of SAKA BURAIMOH V. TUNDE ALEJO (2015) LPELR-41795(CA)
In other respect, counsel repeated the arguments in the final address and concluded by urging the court to resolve all the issues for determination in favour of the defendant and dismiss the claim with cost.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law of the Defendant, the sole issue for the determination of this suit is to wit:
- Whether or not the claimant is entitled to the reliefs sought in view of the facts, evidence led and circumstances of this case?
Before addressing the sole issue, it is incumbent upon this court to address the status of the exhibits C9 which was admitted under protest.
With regards to the said exhibit C9, the contention of Counsel to the Defendant is that same was not frontloaded while the counsel to the Claimant responded that same was not frontloaded due to an omission.
In view of the contention, I have taken a look at the said Exhibit C9 and found that same is a copy of several email communications between a certain Alex and the Claimant. I have also taken another look at the list of document and found that same was listed as No.8 (h) on the list of documents as part of the documents to be relied upon by the Claimant.
With regards to the objection to admitting the document on the basis of failure to frontload, without much ado, I must state that this court had in the case of Eddie Sunday v Halliburton Energy Services Nigeria Limited (Unreported) Suit No: NICN/PHC/61/2017, delivered on 30th April, 2019 reiterated that the legal position is that documents should not be rejected for failure to frontload same, particularly in view of the fact that the Evidence Act does not make frontloading a document a prerequisite for admissibility. Reliance was placed on the position of the law in OGBORU V. UDUAGHAN (2011) 2 NWLR 538 where the Court of Appeal posited that:
“…there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice.” PER DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G).
I find it apposite to adopt the said liberal approach in the instant case having considered the said document to be relevant and pleaded. Consequent upon the foregoing, the contention of counsel to the Defendant is misconceived and the said Exhibit C9 is admitted in evidence.
I then proceed to resolve the sole issue which is “whether or not the claimant is entitled to the reliefs sought in view of the facts, evidence led and circumstances of this case”. The relief sought by the Claimant is for a total sum of N2,621,400.00 particularised under reliefs (a) – (e) as N924,000.00 being commission on sales turn over; N40,000.00 being cost of registration and licensing; N17,400.00 cost of fueling; N640,000 cost of leasing vehicle for 64 days and 1 million naira as general damages.
The Claimant also claims interest on judgment sum from date of action and post judgment interest on the above sum.
In view of the Claim, I must state that the monetary claims, apart from that of general damages of N1,000.000.00, are in the form of special damages. The law is trite as to the nature of special damages as the court in the case of ISC Services Ltd. v G.C Ltd. (2006) 6 NWLR (Pt.977) pg.481 held that:
“Special damages are damages or losses that are ascertainable and their value known. They are the type which the law will not infer from the nature of the act and they are not the type that will normally follow in the ordinary course of events. The law therefore requires they must be claimed specially and proved strictly.” Per GALINJE, J.C.A. (P.47, Paras.C-D)
In view of the position of the law that special damages are to be specifically pleaded and proved, it is apposite to state that the burden of proof is on the claimant to strictly prove that he is entitled to the claim of the particularized sums of monies. The court is not in a position to carry out assessment or exercise discretion in the absence of such proof. This was emphasised in the case of Egom v. Eno (2008) 11 NWLR (Pt.1098) where the court held that:
“In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A)
Having established that the burden is on the Claimant to prove that he is entitled to the said sum, I must reiterate that the said burden is to be discharged on a balance of probability as the court in the case of S.T.B. Ltd. v. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt. 366) 757 at 770 – 771 Paras. H – A (CA). held that:
“It is now very axiomatic that proof of issues in a civil case is on a balance of probabilities. Where there is nothing to put on the one side of the imaginary scale of justice, minimum evidence on the other side satisfies the requirement of proof even where strict proof such as proof of special damages is the matter. See Mogaji v. Odofin (1978) 4 SC 91; Odulaja v. Haddad (1973) 11 SC 357; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352.” Per Aderemi JCA.
It is in the light of the forgoing that I proceed to consider each of the monetary claim of the Claimant in relation to the evidence before the court and the circumstances of the case.
With regards to the claim for “the sum of N924,000:00 (Nine Hundred and Twenty Four Thousand Naira only) being general damages for unpaid commission on sales turn-over from December 2016— May 2017”. Foremost, I reckon that the claimant tagged the said claim as general damages, however, the said sum is claimed upon a computation of N154,000.00 sales commission for the months of December 2016 to May 2017. The claim by its nature is therefore specific rather than general.
That said, the highlight of facts relating to the claim for sales commission is that the Claimant posited that he was the Regional Sales Manager of the Defendant and by virtue of that role, the defendant gave him a target of 20,000 packs of CWAY products with a reward of N154,000 upon achieving the target monthly. Claimant posited that he sold far beyond the target but the Defendant failed to pay him the said commission. The Defendant in reaction posited that their products were sold via independent marketers and there was never an agreement between the Claimant and the Defendant on sales commission and neither did the Claimant make any sale nor earn any commission.
In addition to the facts, the contention surrounding the claim is that the Claimant, particularly through his counsel posited that by Exhibit C3 and C9 which are his letter of employment with the Defendant and correspondence between himself and the defendant, he is entitled to monthly commission of N154,000.00. The Claimant during cross examination posited that exhibit C9 was negotiations between himself and a certain Mr. Alex. He also posited that the commission he is claiming is from what the Company sold through him as Regional Sales Manager.
In view of the forgoing, the strength of the Claimant’s claim for commission lies on the content of Exhibit C3 and C9. A look at Exhibit C3 shows that same is a letter of employment dated 22nd November, 2016 and addressed to the Claimant. By the said letter, the Claimant was employed as a Regional Sales Manager.
By paragraph 4 of the said Exhibit, the Claimant was notified that:
“A total salary package of N150,000.00 (One Hundred and Fifty Thousand Naira only) shall be paid to you monthly. Sales commission will also be provided as agreed.”
The foregoing provision on its own shows that the Claimant was informed that he will be paid sales commission although the paragraph did not suggest how the commission is to come about except that the paragraph says “as agreed”. The question that necessarily follows is where or when was the agreement on commission made and is the said agreement before the court? answering the question leads to the consideration of Exhibit C9 which is a collection of email correspondence between the Claimant and a certain Mr. Alex spanning between 7th September, 2016 and 19th April, 2017 a portion of the email related to discussions on the terms of the employment of the Claimant between the Claimant and the said Mr. Alex starting from the email dated 7th September, 2016. The email dated the 14th of September, was from the said Mr. Alex through his email account (husl@cwaygroup.com) to the Claimant’s mail account (mydotun@yahoo.com). The said email reads:
“Dear Banjo,
Morning. Thanks for your amil(sic) and sorry for later(sic) reply.
- your initial position will be regional sales manager of cway table water
- your starting salary will be 150,000.00 Naira/month(including house and transport allowances)
- commission.”
Immediately following ‘commission’ is an irregular table which suggests the computation of commission. By the said table I find that the reward for achieving above target to be N154,000 and the target is indeed 20000 packs.
The finding notwithstanding, the Claimant posited that he achieved above target from December, 2016 to May 2017. The Claimant did not present any evidence to prove how he achieved the said target, rather he relied on the NOTICE TO PRODUCE issued for the record of sale for the months of December 2016 and January to May, 2017 given to the Defendant through paragraph 7 of his statement of fact. Counsel to the Claimant contended that upon failure of the Defendant to produce the said document, the Court can hold the document against the defendant. Reacting to the issue of notice to produce, counsel to the Defendant posited that since the Claimant has through the demand letter written by his lawyer asserted that he has the record of sales made through him, then he should have tendered same and relied on it. Counsel to the Claimant cited section 167(d) of the Evidence Act.
I have considered the provision of the said section of the Evidence Act and find it apposite to reproduce same for sake of clarity.
Section 167: The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The effect of the forgoing provision is for the court to consider the Defendant to be withholding evidence and to consider the evidence so withheld to be against the defendant.
In view of the forgoing provision, the question that necessarily arises is what is the effect of failure to comply with a notice to produce. In other words, will the failure to comply with a notice to produce lead to the invocation of the forgoing provision on presumption of withholding evidence? The court extensively answered the question in the case of CHUKWUKA v. NDUKA & ORS. (2008) LPELR-3985(CA) when it held that:
“What is the effect of a Notice to produce a document? Does failure to produce the document mean that the person to whom such Notice to produce the document was given knows that if he produced the document it would be detrimental to his case? In other words does failure to produce the document warrant the invocation of section 149 (d) of the Evidence Act. I think not. The position of the law is very well amplified in the case of BUHARI v. OBASANJO (2005) 13 NWLR (PART 941) 1 at 198 where the Supreme Court said as follows- “A party on whom a Notice to produce a document is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act. In other words the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document, if he can or of proving its contents. Consequently the non-response to a notice to produce a document will not cause the Court to invoke the presumption of withholding of evidence under section 149 (d) of the Evidence Act against the defaulting party. (UBN Plc) IDRISU (1999) 7 NWLR (PART 609) 105; GBADAMOSI v. KABO TRAVELS LTD (2000) 8 NWLR PART 668 243 referred to) (Pp 236) paragraphs A – C; 262 – 263, paragraphs H-A.”Per ALAGOA, J.C.A (Pp. 29-30, paras. B-A).
In view of the forgoing authority, I have taken a review of paragraph 7 of the statement of fact and find that the notice to produce is for the original copy of the record. The Claimant has not presented a secondary copy before this court and has failed to prove the content.
Consequently, it is without doubt safe to conclude that while the Claimant through the letter of employment is entitled to a sales commission, the Claimant has failed to prove that he indeed achieved the target which earns him the reward of N154,000 for each of the months for which he claims the said reward. Being a specific claim, it cannot be imagined that the Claimant must have earned it, it must be strictly proved, although on a balance of probability. The court is not oblivious of the position of the law that the standard of proof is upon a balance of probability in civil cases, however, exhibit C3 and C9 merely establishes that the Claimant would be entitled to Commission if earned. The slightest proof of the fact that the Claimant earned the specific commission out of the three categories outlined is not before the court and that leaves the claim without an iota of proof.
Consequently, the claim for the sum of N924,000:00 (Nine Hundred and Twenty Four Thousand Naira only) being general damages for unpaid commission on sales turn-over from December 2016 – May 2017 fails for lack of proof and same is accordingly refused.
I then proceed to consider the claims for “the sum of N40,000:00 being the cost of registration and licensing of the Mitsubishi, double cabin vehicle with licensing authority, Lagos State”; the sum of N17,400:00 being the cost of fueling the vehicle in the month of May 2017 and the sum of N640,000:00 being the cost of leasing the vehicle for 64 days at the rate of N10,000:00 daily.
The facts relating to the foregoing claims is that the Claimant posited that when the Defendant was having challenges in marketing as a result of lack of official vehicle for marketing operations, the Defendant entered an arrangement with the Claimant to use his own money to buy vehicle to ease the marketing operations. The Claimant added that he bought the car on the understanding that the defendant will reimburse him the sum of N40,000:00 being registration cost and required documentation of the vehicle; that the defendant Will be responsible for the fueling and maintenance/servicing of the vehicle as it is being used as official vehicle for the company and that the defendant will pay the sum of N10,000:00 as daily lease for any day the vehicle is used for official assignment.
Claimant posited that the Defendant paid for the maintenance but failed to pay the registration fee, the fueling cost for May, 2017 and the cost of lease for 64 days.
The defendant on their part denied entering an agreement with the claimant on purchase of the vehicle to be used for the company as the Claimant registered the said vehicle in his own name. The Defendant however posited that they reimbursed the Claimant the cost of fueling and maintenance of the vehicle as agreed therefore they are not owing the Claimant at all.
Counsel to the defendant contended that the claimant must prove a valid contract to be entitled to the remedy claimed. While Counsel to the Claimant contended that there was oral agreement between the Claimant and Mr. Alex in relation to the vehicle and Exhibit C2 shows that the monies for fueling and cost of registration was pending and was withheld without reason.
Placing the above facts and contentions in the light of the evidence before the court, I find that Exhibit C9, the correspondence that ensued between the Claimant and the Defendant relates to discussions over the purchase of a vehicle. By the email dated Feb, 3 2017, the Claimant wrote to the GM of the Defendant and gave attention to Mr. Alex. The mail was headed ‘purchase of vehicle for official use’. The Claimant stated that:
“Sequel to our last discussion about the above on 26/01/2017. I wish to inform you that I have secured a Mitsubishi, double Cabin in Lagos. Details of the Vehicle is below:..”
He added:
“I have not made payment yet. As I need to reconfirm where CWAY will come in as regard the following:
- registration and required paper (documents)
- vehicle fueling (already agreed in meeting held on 26th January, 2017)
- vehicle maintenance & servicing (already agreed in meeting held on 26th January, 2017).
The cost of the vehicle registration and required papers (i.e. private number plate) is N40,000 in Lagos. The cost is higher in Port Harcourt, about N45,000 to N48,000.”
Perhaps the Defendant did not respond to the mail and that led the Claimant to write again of Feb, 8 2017 reiterating the cost of registration, highlighting the documents to be issued for the vehicle and stating that it will be advisable to register the vehicle in Lagos and concluded that:
“once you are Ok with this let me know. So I can arrange the purchase of the vehicle. The seller may change his mind if (sic) keep on delaying”.
Exhibit C9 does not contain any discussion on lease of the Vehicle at N10,000 daily. It also does not indicate that the parties eventually came to an agreement on the payment of the cost of registration. It however indicated that there was an arrangement as to fueling and maintenance of the vehicle.
Taking further evaluation of the evidence before the court, Exhibit C2 concretises the fact that there was an agreement on the fueling and maintenance of the vehicle as the said exhibit dated the 30th May, 2017 outlines the pending payments for the Claimant. The outline included vehicle fuel expenses put at the a sum of N17,400 and vehicle maintenance due every 3 months (March – May) put at 12,000. The said sums were included in the total sum of N779,400 to be paid to the Claimant but the Defendant deducted the N17,400 for vehicle fuel expense and also deducted the sum of N40,000 for registration documents for Mitsubishi L200 (FKJ772ER) Vehicle which is the vehicle in question.
The said N40,000 was not outlined as part of the pending payment and the reason why same was deducted is not stated.
Upon further evaluation, I find that the Defendant tendered through the Claimant Exhibit C11 which is the copy of a bank Cheque to prove that the sum of N722,000 was paid to the Claimant, while the Claimant tendered Exhibit C8 to prove that he expended monies on fuel for the month of May. The three fuel receipts tendered are dated 4/5/17, 13/5/17 and 22/5/17.
In view of the foregoing evaluation, it is beyond conviction that the Claimant and the Defendant had an arrangement for the Vehicle purchased by the Claimant to be fuelled and maintained by the Defendant and the Defendant indeed paid the cost of maintenance up-to May, 2017 as clearly shown in Exhibit C2.
With regards to cost of registration of the Vehicle, there is no iota of proof that there was an agreement that the Defendant would bear the said cost of registration. The said sum is not captured as part of pending money to be paid and it is uncertain why same was deducted from the total sum paid to the Claimant eventually. Consequently, the Claim is not established and same is accordingly refused.
With regards to the Claim for the sum of N640,000:00 being the cost of leasing the vehicle for 64 days at the rate of N10,000:00 daily, the Defendant denied any such agreement while counsel to the Claimant contended that since the defendant failed to open up on the amount payable as lease, the only option open to the court is to accept the N10,000:00 daily claim for the use of the vehicle and as the consideration for the use of the vehicle by the defendant.
Having evaluated the evidence before this court, I must state that there is no scintilla of evidence to support the fact that there was an agreement for the sum of N10,000 to be paid on daily use of the vehicle and the court cannot make an assumption of such agreement simply because the Defendant failed to open up on amount payable. Such assumption has no basis in law and same is not justifiable. Consequently, the claim for the sum of N640,000:00 being the cost of leasing the vehicle for 64 days at the rate of N10,000:00 daily fails for lack of proof and same is accordingly dismissed.
With regards to the cost of fueling the vehicle for the month of May, 2017 the Claimant successfully proved that he expended the sum of N17,400 on fuel via Exhibit C8. The Defendant also captured the said sum in the outlined pending payment but however deducted same in the final payment. Although, it is also uncertain why same was deducted, but the fact that there was such arrangement for the payment and the Defendant had acknowledged that same was pending for payment, the burden shifted unto the Defendant to posit why the sum was deducted. Consequently, the Claimant is entitled to the payment of the sum of N17,400:00 being the cost of fueling the vehicle in the month of May 2017 and the said claim is accordingly granted.
The next claim is for the sum of N1,000,000:00 being general damages for the pains claimant has passed through for non-payment of claimant entitlement and cost of this action.
With regards to the nature of general damages, the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) held that:
“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B).
The claim for the general damages by the Claimant is predicated on alleged pain he passed through for non-payment of his alleged entitlements. In view of the claim, I have reviewed the entire facts before the court and found that the Defendant made attempts to pay the Claimant his entitlements as outlined in Exhibit C2 and upon the evaluation of the evidence before the court, it is found that the cost of fuel which was deducted is the sum which the Defendant breached its payment as same was originally reckoned as a pending payment. That notwithstanding, the defendant’s act of failing to pay the said sum led to this suit and has the capacity of causing the claimant damage.
Consequent upon finding that the defendant wronged the Claimant to the extent of refusing to pay the cost of fuel, the sum of N100,000.00 as general damages is awarded in favour of the Claimant and against the Defendant.
With regards to cost of action, it must be borne in mind that cost is awarded at the discretion of the court as it was held in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) that:
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).
In view of the forgoing authority and a careful consideration of the entire circumstance of the case, I do not find it appropriate to award cost as both parties should bear their respective cost.
The next claim which is relief (f) is for interests on the judgment sum awarded as arising from the monetary claims. The claim is put at 21% monthly interest on the judgment sum from the date of this action till when judgment is delivered and 25% monthly post judgment interest on the judgment sum till the judgment sum is fully liquidated.
With regards to the claim, it must be reiterated that the claims awarded amongst those sought by the Claimant are the sum of N17,400 as cost of fuel and N100,000.00 as general damages. That said, the grant of the claim on interest is predicated on the forgoing monetary claim and same is to be granted at the discretion of the court as Order 47 Rule 7 of the Rules of this Court stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.
In consideration of the foregoing provision, the claim for interest is in two phases i.e. pre-judgment and post-judgment. In view of the foregoing provision, the 21% monthly interest on the judgment sum from the date of this action till date of judgment is not within the purview of the rules of this court and same is accordingly refused. The second phase of the Claim is 25% monthly post-judgment interest on the judgment sum till the judgment sum is fully liquidated is within the purview of the provision although same is put on a monthly computation as against the annual computation by the rules of this court.
Consequent upon the forgoing, relief ‘f’ is granted to the extent that this Court orders the monetary claims awarded to the Claimant to be paid within 10 days of the delivery of this judgment after which same shall attract 25% interest per annum.
That said, the sole issue is resolved in favour of the claimant partly to the extent at which the reliefs sought by the Claimant have been granted while same is resolved against the Claimant in the extent to which other reliefs sought have been refused.
In the final analysis, the case of the Claimant is found to be meritorious at the extent to which reliefs (c), (e) and (f) have been granted and fails to the extent to which other reliefs have failed.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE
