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AKAH DAVID WONAH VS TECHNO OIL LIMITED

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  IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  THURSDAY 27TH SEPTEMBER 2018

SUIT NO. NICN/LA/533/2016

BETWEEN:

AKAH DAVID WONAH

                                                                       

CLAIMANT

AND

TECHNO OIL LIMITED

                                                                     

DEFENDANT

Representation:

Augustine Ikhalea appears for the Claimant

B A Otukam-Iyama, with T O Onyejiese appear for the Defendant

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 16th of August 2016, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; and copies of all the documents to be relied on  by the Claimant at the trial of the suit. The Claimant claims the following reliefs against the Defendant:

  1. A declaration that the supposed verbal suspension of the claimant which was never communicated to the claimant directly by the defendant in writing was null, void and malicious and contrary to the defendant’s employee handbook.
  2. A declaration that the claimant is entitled to his April, 2014 salary and arrears of his salary from the date of supposed suspension on 1st May, 2014 till date as the same was never formerly communicated to the claimant.
  3. An Order compelling the defendant to pay the claimant Seventy-Five Thousand Naira (N75,000.00) as a April, 2014 salary which he worked for.
  4. An order compelling the defendant to pay the claimant arrears of salary and Christmas bonuses and leave allowances to the tune of N2,100,000.00 (Two Million, One Hundred Thousand Naira) from 1st May, 2014 till date.
  5. An Order directing the defendant to pay 21%  interest on the said sum from the 18th July, 2016 till Judgment and thereafter at the rate of 10%.
  6. The sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) as cost of this action.

In response to the claim, the Defendant filed its Statement of Defence dated and filed on 29th December 2016 together with a List of Defendant’s Witnesses dated 29th December 2016, Defendant’s Witness Statement on Oath deposed to by Mrs. Folarin Elizabeth Odufuwa on 29th December 2016, List of Documents and copies of the documents to be relied on at the trial. The Defendant joined issues with the Claimant on its allegations and claims.  The Defendant counter-claimed as follows:

  1. The sum of N75,000.00 (Seventy Five Thousand Naira) being the Claimant’s one month salary in lieu of disengagement from service notice to the Defendant.
  2. Interest on the above sum at the rate of 15 per annum from 25th May, 2014, (one month after the Claimant terminated his employment with the Defendant) until judgment, and thereafter at the rate of 10% until final liquidation.

iii.                Cost of and incidental to this suit.

In response to the Defendant’s Statement of Defence, the Claimant filed its Reply to the Statement of Defence dated and filed on 13th July 2017.

Trial commenced in the suit on 22nd March 2018 and was concluded on 23rd May 2018.  The Claimant gave evidence for himself as CW1, by adopting his Witness Statement on Oath.   The Claimant was thereafter cross-examined.  During the examination in chief, the Claimant tendered in evidence the following documents:

  1. Exhibit C1 – Defendant’s letter of appointment dated 15th August, 2012.
  2. Exhibit C2 – Confirmation of employment letter dated 17th March, 2014.
  3. Exhibit C3 – Identification card issued to the Claimant by the Defendant.
  4. Exhibit C4 – Extracts of the Defendant’s Employee Handbook
  5. Exhibit C5 – Copies of pay-slip.

The Defendant’s Witness, Mrs. Folarin Elizabeth Odufuwa gave evidence as DW1 by adopting her Witness Statement on Oath deposed to on 29th December 2016 and she was cross-examined accordingly. The Defendant tendered in evidence the following documents:

  1. Exhibit D1 – The Defendant’s Employee Hand Book.
  2. Exhibit D2 – Interim Report on Police Investigations
  3. Exhibit D3 – Query issued to the Claimant.

THE CASE OF THE CLAIMANT

The Claimant’s case is that he was employed by the defendant as a Safety Supervisor vide a letter from the defendant dated 25th August, 2012 effective 18th September, 2012. He carried out his duties diligently and his employment was subsequently confirmed by the defendant vide a letter dated 17th March, 2014. His job location was at Kirikiri, where he worked in the defendant’s office. Sometime in early April, 2014, his Manager, Mr. Mudashiru Hassan called him and informed him that 8,000 litres diesel got missing overnight. The claimant states that this information was rather curious as it was not part of his job description to have anything to do with dipping and trucking of products as his primary duty was to prevent any hazard and loss of life in case of fire outbreak. The security officers worked in consonance with two Navy Officers whose primary duty was to ensure that the tank farm where products were stored was not broken into.  Curiously this two Naval officers were never questioned neither did they feature in any further investigation.  That the depot Manager, Mrs. Folake Odufuwa after carrying out all investigations along with the subordinate managers could not discover any evidence that any product was missing, and despite the fact that it was not part of his duties, still went ahead to indict him and his fellow safety officer Mr. Uche Ernest Okoh because they were not her stooges as Mr. Kelechi and Okpanachi who were the principal officers having something to do with the tank farm and products. That it was curious that he and his subordinate as Safety Supervisors were even questioned as they did not have access to the key of the products farm.  Mr Kelechi, who was in charge of “Dipping” and who took stock of the particular product insisted that quantity of products was missing in order to exonerate himself and make the security department a scape-goat. After completion of investigation at the depot level without finding any evidence of any missing product, they then notified the head office that some products got missing. The head office involved the then internal auditor of the defendant to investigate and the auditor carried out a thorough investigation including questioning all the security officers, safety officers and the officers in charge of Dipping and trucking out – Mr. Kelechi and Mr. Okpanachi respectively. The Auditor neglected or failed to question the two Naval officers whose primary duty was to ensure that product was not stolen and who were in the best position to say what happened.  The Auditor sequel to the investigation sent a report to the head office exonerating the security and safety department, but indicating that the officers in charge of trucking out and dipping should be the ones to be questioned because the security and safety officers have no access to the key of the tank farm where diesel or other products were stored.   The Auditor was relieved of his job on the premise that he gave a biased report because the report did not favour certain interests.  Mr Mudashiru Hassan who was the Manager in charge of safety and security was subsequently put on suspension because he gave a positive report exonerating the Claimant, but was later recalled. The Defendant later involved the police who carried out their own investigation and came to the conclusion that there was no evidence whatsoever to show that the tank farm was tampered with or product stolen or missing.  The Police invited him, Mr. Ernest, Mr. Otutu, the Chief Security Officer, Mr. Okpanachi in charge of trucking out and Kelechi in charge of dipping to the head office for interrogation.  At the end of the interrogation, it was alleged by the defendant that because the Claimant was familiar with Mr. Otutu, who provided security personnel for the defendant, that was why he backed the security as represented by Mr. Otutu with whom they had some issues, to the detriment of the company. Sequel to the interrogation, towards the end of April, 2014, he was verbally informed by Mr. Mudashiru Hassan, his manager to hand over all company materials in his possession and proceed on suspension until further notice.  He worked up to 25th April, 2014 before he was supposedly asked to go on suspension, and he was not paid his April, 2014 salary. Till date, Claimant has been on the supposed suspension contrary to the defendant’s employee handbook which states that cases of suspension should be treated with dispatch. The claimant states that his employment with the defendant was confirmed in March, 2014 and he was curiously supposedly suspended from duty without any written letter from the defendant in April, 2014 which raises the inference of malice on the part of the defendant as they would not confirm a staff who was involved in any kind of misconduct or had a history of insubordination.  Prior to the time material to this case he had never been cautioned or given any warning by the defendant whether verbal or written and his supposed or ostensible suspension was informed by his refusal in all good conscience to back the Defendant’s view of the security company in relation to the alleged incident leading to this suit. That, neither the officer in charge of Dipping and that in charge of trucking were ever suspended and are still in the employment of the Defendant.  Claimant states that because of Defendant’s action, he has suffered prodigiously.

CASE OF THE DEFENDANT

The case of the Defendant is that in the morning of 15th April, 2014, it was reported that a negative variance of 8,266 (Eight Thousand Two Hundred and Sixty-Six) litres of Automotive Gas Oil (“AGO”), also known as diesel, was recorded, as against the reading of the previous day. The report of the loss necessitated invitation and interrogation of its staff at its Depot, including the Claimant, by its auditors and also by the Police. Whenever a crime is committed, everyone present at the crime scene is expected to be invited for interrogation in respect thereof. The Defendant states that the Claimant was on night duty on 14th April, 2014, when its goods were stolen from its tank farm at Kirikiri, Apapa. Everyone on night duty on 14th April, 2014, including the naval security men, were invited and interrogated, as the crime could have been perpetrated by anyone within the vicinity. Investigations revealed that 8,266 (Eight Thousand Two Hundred and Sixty-Six) litres of AGO was stolen from the Defendant’s Depot, but the perpetrators could not be identified, which necessitated the Defendant to report the incident to the Police.  In the course of its investigations, the Police invited for interrogation everyone that was on night duty at the time of the theft including the Claimant, and the principal officers in charge of the Depot who were even not on night duty.  Defendant states that the theft could not have been perpetrated only by someone with keys to the Depot, and it was therefore not unreasonable or out of the ordinary to have questioned the Claimant on the stolen AGO.  Defendant states that it did incur loss by way of theft of 8,266 (Eight Thousand Two Hundred and Sixty-Six) litres of its stolen AGO, and same was not made up by anybody, whether Kelechi or otherwise. That at no time was there ever a finding that no products were stolen from the Defendant’s Depot; rather the finding necessitated a further report to the Police, who accordingly invited the Claimant and others for interrogation, but he failed to present himself. Visits by the Police to his residence were fruitless as he could not be found. While others honoured the invitation, the Claimant and Mr. Ernest Uche Okoh refused to honour their respective invitations, prompting the Police to seek their arrest without success. Defendant states that the internal auditor’s report did not exonerate anyone, as his duty was basically to ascertain if indeed there was a negative variance in the Defendant’s products, and if possible, find the culprit(s). However, while the report confirmed the theft, the culprit(s) were not identified. The auditor was not relieved of his appointment on any account, as his engagement was not for the purpose of witch-hunting anyone; rather he resigned from his employment on personal ground and had since moved on. Mr. Mudashiru Hassan was at no time suspended on account of the stolen AGO for giving a report that exonerated anyone as he was never directed to prepare any report on the matter. Defendant states that it had no issues with Mr. Otutu on the theft of the 8,266 litres of the Defendant’s AGO as alleged or at all. Defendant states that the Claimant was never suspended as alleged or at all by the Defendant; rather, the Claimant refused to present himself to the Police for further investigations and interrogation, and of his own will stopped coming to the office, prompting the issuance of an official query letter, which query could not be served on him as he stayed away from work. Defendant states that it is a very responsible corporate citizen and carries out its corporate administration in line with international best practice, and so could not and did not verbally suspend the Claimant from his duty post. The Claimant voluntarily and of his own will was “away without leave” or permission and that if the Defendant wished to suspend the Claimant, it would have issued him with appropriate letter of suspension through its appropriate officer. Defendant states that the Claimant is not entitled to his salary for the month of April 2014 as he had disengaged from employment with the Defendant without the requisite notice or payment in lieu of notice.  That, the Claimant having discovered that the Police investigations seemed to be progressively revealing his involvement, decided to abscond from his work place and from his home in order to scuttle further investigations into same, and waited for the dust to settle and then turn around to initiate this suit. It is further the Defendant’s case that Article 4.4 of its ‘Employee Hand Book’ provides for procedures for addressing employee’s grievances, which provision the Claimant ought to have availed himself of had he been actually aggrieved.  That the Claimant’s confirmation was prior to the theft of its products, and any of its staff that is involved with any criminal or gross misconduct, whatever his level or howsoever long his/her stay with the Defendant, will accordingly be disciplined. That the award presented to the Claimant, and indeed to any staff of the Defendant’s, is not a testimonial to his character, and also not a shield against interrogation or disciplinary measures. That the Claimant had no hands or say in the engagement of the Defendant’s security personnel, and also did not have any influence in whatever the Defendant decided to do with the security personnel to warrant the support or approval of the Claimant, and consequently affect his employment.

REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM

 

In Reply, Claimant states that it was Mr Mudashiru Hassan who informed him that 8.000 litres of A.G.O was stolen overnight.  Claimant states that the naval officers on duty that night were never questioned or investigated by the Defendant or the Police.   Claimant reiterates that the investigation at the Depot level revealed that no diesel product was missing and the investigation of the safety manager Mr Hassan also confirmed that no diesel product was moved that night. That the internal auditor neglected and/ or failed to question the naval officers on duty that night in the course of his investigation but that sequel to the internal auditor’s investigation, the auditor sent a report to the head office exonerating the safety department. Claimant states that contrary to the assertion of the defendant the internal auditor was sacked after he sent his report to the head office at the conclusion of his investigation, he did not resign on personal grounds.  Claimant states that while the police investigation was going on he was still working for the Defendant and he cooperated with every aspect of the investigation at all levels and further reiterate that he was never arrested or investigated by the Police. That he did not stay away from any police investigation and that assuming without conceding that he avoided Police investigation, the Defendant made his guarantor to execute a guarantor form when he was employed to the effect that the guarantor would be liable for any breach by the Claimant, the Defendant never asked his guarantor to produce him at the material time, neither was his guarantor ever invited by or interrogated by the Police. That the Police report pleaded by the Defendant ostensibly written by the police in respect of an investigation carried out in 2014 is dated 11th November, 2016 almost two years after the incident and after the Claimant filed this suit in August 2016 an apparent afterthought made in anticipation of its defence in this suit. Claimant states further that he would have honoured any invitation by the Police, if any, for further investigation because at the material time he was based in Lagos and his address and that of his guarantor was well known to the Defendant but he was never visited by the Police or invited for any further investigation.   Claimant states that he was never issued or served any query by the Defendant and any query if issued must have been issued after he was verbally suspended by the Defendant vide Mr Mudasiru Hassan without any formal official notification. That assuming without conceding that the he stopped work on his own volition as contended by the Defendant, the Defendant never attempted to contact his guarantor Mr Otutu who was well known to them being a security contractor to the Defendant as to his whereabouts.  That he is entitled to his April 2014 salary and his salary till date because his appointment was not terminated officially by the Defendant till date, he was only suspended verbally and the Defendant has not placed anything before the court showing that the Claimants appointment was ever terminated officially in consonance with its hand book. That while he was on verbal suspension as directed by the Defendant he was under the impression that he would be recalled after the conclusion of the so called Defendant’s investigation until it became clear to him that the Defendant was acting in bad faith which necessitated this suit.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

The Defendant in its Final Written Address raised the following issues for determination:

  1. Whether from the evidence led, the Claimant has established/proved his case to warrant the Honourable Court granting the reliefs claimed.
  2. Whether having terminated his employment with the Defendant without the requisite notice, the Defendant is not entitled to payment by the Claimant of one (1) month’s salary in lieu of notice.

 

On Issue 1, Defendant submits that, with respect to Relief A that Claimant failed to establish that he was indeed verbally suspended.  With respect to Relief B, Defendant argues that to grant the Relief would be rewarding the Claimant for services not rendered and indirectly reinstating an employee who has resigned his employment by wilfully stopping to be at his duty post. That, in other words, the Honourable Court would more or less be declaring the employment of the Claimant by the Defendant as valid and still subsisting. Defendant submits that Claimant has failed to establish/prove his entitlement to the declaratory reliefs being sought by him.  Defendant argues that Reliefs C, D and E, are predicated on the success of reliefs A and B, and that the failure of Reliefs A and B is fatal to the grant of reliefs C, D and E. It argues that even if granted (which they do not concede) that the Claimant was verbally suspended, that he could have mitigated his loss by seeking alternative or suitable employment.  On Relief F, Defendant submits that the failure of the Claimant to establish/prove his case implies that this claim falls on its face and cannot be granted.  Defendant further submits that the Claimant having not led any evidence in support of averments in his reply to the Statement of Defence and Defence to Counterclaim by way of a witness statement on oath, the averments therein are deemed abandoned as held in the case of Arab Chem. Ltd V. Owoduenyi (2013) 10 NWLR (Pt. 1361) 89 @ 103 Para. C.  Defendant urged the Court to dismiss the suit in its entirety as the reliefs sought have not been established/proved by any shred of evidence by the Claimant.

Issue 2 – whether having terminated his employment with the Defendant without the requisite notice, the Defendant is not entitled to payment by the Claimant of one (1) month’s salary in lieu of notice arises from the Defendant’s Counterclaim. Defendant submits that the Claimant having resigned his employment with the Defendant by stopping to resume at his duty post without prior notice to the Defendant, or payment of a sum equivalent to his salary in lieu of the notice, is liable to the Defendant in the Counterclaim. Defendant also argues that there being no evidence led in proof of the defence to the Counterclaim, same is deemed admitted by the Claimant.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

The Claimant, in his Final Written Address, raised the following issues for determination:

  1. Whether the Defendant has any valid evidence before this court
  2. Whether from the preponderance of Oral and documentary evidence before the court the Claimant is entitled to the reliefs sought in his Statement of facts.
  3. Whether the Defendant has established his counterclaim before this court
  4. Whether since the Defendant did not terminate the employment of the Claimant vide termination and/or dismissal or by any other way stipulated in its handbook can validly claim that the Claimant terminated his own employment by alleged extended absence from work.

 

On Issue 1, Claimant submits that a witness statement on oath or affidavit where the swearing clause is absent as is the case of the Defendant’s sole witness Statement on oath dated 29th December, 2016 is in non-compliance with the 1st schedule to Section 13 of the Oath Act and cannot be said to be a written statement on oath. He referred to the case of GTB Plc v. Abiodun (2017) LPELR-42551(CA) and Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 which held as follows:

Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto, where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called.” Per ELECHI, J.C.A. (Pp. 29-31, Para’s. D-D)

Claimant urges that in consonance with the above position, the Defendant’s sole witness statement on oath dated 29th December, 2016 which does not carry the swearing or oath clause in brazen non-compliance with the mandatory provisions of the Oaths Act should be held to be bare and that consequently the Defendant has no evidence to support its averments before the court.

On Issue 2, Claimant submits that from the preponderance of oral and documentary evidence before the court, the Claimant is entitled to the reliefs sought. He contends that section 4.2 of the Defendant’s handbook (Exhibit D1) which is section touching on suspension allows the defendant to do so, as it did not specify that it must be in writing and did not preclude verbal suspension. He argued that the argument canvassed by the defendant that the Claimant terminated his own employment is a ploy or an attempt on the part of the Defendant to avoid paying its indebtedness in salaries and emoluments to the Claimant a practice which is not tenable in law.  He cited the case of JEV v. Iyortom ((2016) ALL FWLR 760 at page 790 Paras B-C where the Apex Court stated that Courts are set up to do substantial justice and this can only be done by thoroughly examining the substance of the case.  He then urged the Court to consider the substance of this case and draw logical inferences in consonance with rational and reasonable human reactions in the light of the peculiar circumstances of this case.

On Issue 3 – Whether the Defendant has established its counterclaim before this court, Claimant submits that the documentary evidence Exhibits D1-D3 supplied to the Court by the Defendant does not in any way support the counterclaim of the defendant and that the documents are even at variance with the defendant’s statement on oath and oral evidence before the Court.  He urges the Court to hold that since Exhibit D3 contradicts the written statement on oath of the defendant and facts admitted by the parties in this suit, it is not genuine.

On Issue 4 – whether since the Defendant did not terminate the employment of the Claimant vide termination and/or dismissal or by any other way stipulated in its handbook can validly claim that the Claimant terminated his own employment by the alleged extended absence from work, Claimant submits that suspension does not transmit to dismissal or termination of employment and in such a scenario the employment of the employee still subsists until it is terminated and he is entitled to all benefits.

DEFENDANT’S REPLY ON POINTS OF LAW

In Reply to Claimant’s argument that Defendant has no valid defence before this Court, Defendant submits that the Act treats such omission or defect as a mere irregularity. On whether the Defendant has established its counter-claim, Defendant submits that it does not need to establish its counterclaim vide any documentary evidence since it is very clear from the Statement of Facts of the Claimant that he stopped going to work sometime in April, 2014, and claimed that he was purportedly verbally suspended by the Defendant, and prayed the Court to nullify and void same by reason of the manner it was communicated to him.  Defendant further submits that the Claimant having failed to prove the purported verbal suspension by the Defendant, the Court has no other option than to hold that the Claimant resigned his employment without giving requisite notice to the Defendant, and is therefore entitled to pay a month’s salary in lieu of notice to the Defendant.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following issues down for determination:

  1. How and when the Defendant’s employment was brought to an end;
  2. Whether the Claimant is entitled to its claim; and
  3. Whether the Defendant is entitled to his counter-claim.

On Issue 1 – How and when Defendant’s employment was determined

From the state of the pleadings and the evidence led, the facts are settled that the Claimant was an employee of the Defendant and stopped resuming at his duty post sometime in April, 2014.  Claimant alleges that he was orally suspended by the Defendant sequel to the alleged theft of Defendant’s product.  Defendant, on the other hand, alleges that Claimant absconded from work, pursuant to the allegation of theft of its products.   The question remaining is how Defendant’s employment came to an end.

Suspension in contracts of employment operates to suspend the contract rather than terminate the contractual obligation of the parties. It is a step taken in the interest of the employers business when certain issues of misconduct are being looked into and where the misconduct is proved, suspension consequent upon it, in my view relates back to the date of the misconduct – see Adekunle v. UBA PLC (2016) LPELR-41124(CA).  See   Longe v. FBN. Plc (2010) 6 NWLR (Pt. 1189) 1 S.C. where the Supreme Court held that:

… It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.” Per ADEKEYE, JSC (Pp. 80-81, paras. G-B)

In the case of Union Bank v. Salaudeen (2017) LPELR-43415(CA), the Court of Appeal held that:

In law, an employer has the power to exercise disciplinary action over his employee. Such disciplinary powers include suspension, interdiction, termination or dismissal. The power of an employer to discipline his employee cannot therefore be taken away by the Court. It is therefore trite that, he who hires can also fire. However, in the exercise of such power to discipline such employee, an employer must observe and adhere to the terms and conditions under which he entered into the contract of employment or hired the employee. Where the employer determines the employment of an employee in breach of such terms and conditions, the employer is ipso facto liable for unlawful termination of the services of the employee.

It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

As held in Adegbite v. State, (2017) LPELR-42585(SC), it is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B.

I have gone through the terms of the Claimant’s employment as evidenced in exhibit C1(the letter of offer of appointment), and exhibit C4(the Employee Handbook).  Exhibit C4 under the heading 4.2: Disciplinary Measures, 3rd bullet ‘Suspension’ provides:

                                    Suspension

Where a staff is suspected of serious misconduct e.g. fraud cases, he/she may be suspended from work until the case has been fully investigated and decided upon.  All cases of suspension will be treated with despatch.

The provision above does not envisage that suspension should operate as a termination.  It is also expressly stated that all cases of suspension will be treated with despatch.

I have also gone through the evidence of Claimant and find no proof of the suspension.  Though Claimant expressly stated the suspension was oral, therefore documentary evidence could not be produced; it was incumbent on the Claimant to prove by some other means, the oral suspension.  This could be done by calling the evidence of any other person in the company who witnessed the oral suspension.  Claimant did state that he was ‘ostensibly suspended’, yet failed to call evidence in proof of this ‘ostensible suspension’.

It is part of Claimant’s case that the suspension not being in writing violated the Defendant’s handbook.  I find no place in the Handbook where it is required that suspension must be in writing.  This point was noted by Claimant in his argument when he said,

We submit further on the issue of oral suspension that there is no law as it relates to labour law in Nigeria that seem to obviate oral suspension even section 91 of the Labour Act which defines “worker” makes provision and recognises oral contract of employment therefore verbal suspension is not precluded even if the practice is deprecated.

By this argument, Claimant queries the very foundation of his claim which seeks a declaration that the supposed verbal suspension of the claimant which was never communicated to the claimant directly by the defendant in writing was null, void and malicious and contrary to the defendant’s employee handbook by virtue of its being oral.

 Again, it is the Defendant’s policy as shown in Exhibit C4 to treat all cases of suspension with despatch.  Here, though having been suspended orally as alleged, Claimant stayed for two years 4 months without enquiring from Defendant why he had not been called back, or the result of their investigation, nor did he utilise the ‘Grievance Procedure’ of the Defendant outlined in Exhibit C4.

All these, in addition to the fact of no proof of the alleged suspension, weaken Claimant’s case.  It is an established law that in a claim that a plaintiff has the onus to prove his case based on the evidence he adduces at the trial and not to rely or capitalise on the weakness(es) in the defendant’s case even though he can always take advantage of the evidence of the defence which supports his case. See PADA v. Galadima & Anor (2017) LPELR-42761(SC).  See also Oguejiofor v.Siemens Ltd. (2007) WRN (Vol. 25) 99 at 116 Lines 25 – 35 (CA).

I find that though it has been established that Claimant stopped going to work sometime in April 2014, Claimant has not established that he stopped work by virtue of a suspension by the Defendant.

Issue 2 – Whether the Claimant is entitled to its claim

Having found that Claimant has not established that he stopped work by virtue of his suspension by the Defendant, it means that Relief A sought by Claimant fails. Relief B is dependent on the success of Relief A.  Therefore, Relief A having failed, Reliefs B – F equally fail.  Claimant has been unable to prove his case by evidence.

Issue 3 – Whether the Defendant is entitled to its Counter-claim

The third issue for determination is whether the Defendant has proved his counterclaim to be entitled to same. What then is counter claim? The Supreme Court in Maobison Inter-Link Associated Limited v. UTC Nigeria Plc (2013) LPELR-20335(SC) said thus –

… A counter claim is a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim. See Black’s Law Dictionary. Tenth Edition page 427. In other words, a counter claim is a claim by the defendant against the plaintiff in the same proceedings. It is regarded as an independent and separate             action in which the defendant/counter claimant is in the opposition of the plaintiff             and therefore has the burden of proving the counter claim to be entitled to judgment thereon.

A counterclaim is a separate and distinct action and a counterclaimant like all other claims, must prove his claim against the person being counterclaimed before he can obtain judgment on the counterclaim. There is no need citing any authority in support of this well known principle of law because there is a rain of authorities. See however Ogbonna v. A – G Imo (1992) 1 NWLR (Pt.229) 647, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260. See also Ogiren v. Olufunmilayo & Ors (2015) LPELR-24295(CA). Thus, the Counterclaimant must adduce sufficiently cogent and admissible evidence in proof of his counterclaims without which he will not be entitled to the relief sought.

The Claimant raised the issue whether the Defendant has any valid evidence before this Court, and argued that defendant’s sole witness statement on oath dated 29th December, 2016 which does not carry the swearing or oath clause in brazen non-compliance with the mandatory provisions of the Oaths Act should be held to be bare and that consequently the Defendant has no evidence to support its averments before the court.  The Oaths Law in S. 4(2) and (3) of the Act which provides that:

“S.4

  1. ……….
  2. No irregularity in the form in which an oath or an affirmation is administered or taken shall –
  3. invalidate the performance of official duties; or
  4. invalidate proceedings in any court; or
  5. render inadmissible evidence in or in respect of which an irregularity took place in any proceeding.
  6. The failure to take an oath or make an affirmation, and any irregularity as to the form of oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth.”

Specifically on the issue, Order 41 Rule 3 of the Rules of this Court provides that:

The Court may receive any Affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by mis-description of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a Memorandum to be made on the document that it has been so received.

In Uduma v. Arunsi & Ors(2010) LPELR-9133(CA), the Court of Appeal while construing a similar provision in the Federal High Court Rules and section 4(2) of the Oaths Act held:

Order 10 r 3 of the Federal High Court Civil Procedure Rules 2000 provides thus:

“The court or a judge in chambers may receive any affidavit sworn for the purpose of being used in any court or matter notwithstanding any defect by misdescription of the parties or otherwise in the title or jurat or any other irregularity in the form thereof and may direct a memorandum to be made on the document that it has been so received.”

Sections 4(2) and 4(3) of the Oaths Act provide as follows:

“4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall:

(a) Invalidate performance official duties, or

(b) Invalidate proceedings in any court or

(c) Render inadmissible evidence in or in respect or which an irregularity took place in and proceedings.

3(3) The failure to take an oath or make any affirmation and any irregularity as to the form of an oath of affirmation shall in no case be construed to affect the liability of a witness to state the truth.”

The above provisions have been judicially interpreted in ANATOGU v. IWEKA II supra cited by the learned Respondent’s counsel where Uwais JSC (as he then was) held as follows at page 573 of the NWLR:

“What then is the consequence of the failure to administer oath or affirmation on a witness before a court? The answer is given by Section 4 subsection 3 of the Oaths Act 1963 No. 63 of 1963 which provides:

“(3) The failure to take an Oath or make an affirmation and any irregularity as to form of Oath or an affirmation shall in no case be construed to affect the liability of a witness to state the truth.”

“Since by these provisions, the evidence of PW1 is to be taken to have been given as if under Oath; in other words as if he had been sworn,, then no miscarriage of justice had been occasioned by the omission to administer Oath or affirmation.” Also the Supreme Court took the same position in SOLOLA v. THE STATE (supra) where the Court held as follows:

“By Section 4(3) of the Oaths Act, the failure to administer Oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice. See the case of ANATOGU v. IWEKA II (1995) 8 NWLR Pt. 415 Pg. 547.”

From the law and the judicial interpretations given, one is bound to agree with the learned Tribunal and the senior counsel for the Respondent that the defect in the form of the written statement once it is sworn to “before a person duly authorized” is a mere irregularity which cannot affect the jurisdiction of the court since it cannot invalidate the performance of official duty, invalidate proceedings, or render the statement inadmissible as evidence.”Per OGUNWUMIJU, J.C.A.(Pp. 29-31, paras. B-A

See also the case of Nzewi & Anor v. Okeke & Ors (2008) LPELR-4659(CA) which stated that:

Section 4(2) Oaths Act which subscribes that defect in non compliance with the several methods provided in the Oaths Act is an irregularity and should not vitiate any proceedings when it is required – per OMAGE, J.C.A.(Pp.12-13, paras. G-A)

In Solola v. State (2005) 2 NWLR (Pt.937)460, the Supreme Court stated that:

By section 4(3) of the Oaths Act, the failure to administer oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice.” Per Edozie, J.S.C. (P. 16, para.G).

The Court of Appeal in Dasofunjo v. Ajiboye (2017) LPELR-42354(CA) stated on this same issue that:

The question which must be answered is whether the lower Court was right when it discountenanced the appellants Notice of Intention to defend on the premise that the affidavit in support of the intention to defend is defective and or not in compliance with certain provisions of the Oaths Act? I have carefully therefore looked at the Notice of intention to defend … and most specifically, the affidavit in support of Notice of intention to defend, shown to have been sworn at the High Court registry Ilorin Kwara State on the 8th of September, 2016. I observed that the defect therein, which forms the crux of the instant appeal is that there is no affirmation by the deponent therein to the effect that “That I depose to this affidavit in good faith and believing the content to be true and correct in accordance with the Oaths Act”.

The Court continued:

Ogunwumiju JCA, in the more recent case of Uduma vs Arunsi (2012) 7 NWLR (pt 1298) 55 @ 97 – 98, revisited the authorities on the subject including the case of NNB PLC vs IBWA Ent. (supra), the interpretation given by the Supreme Court to the provisions of Section 4(2) and (3) of the Oaths Act in the case of Anatogu vs Iweka II (1995) 8 NWLR (pt 415) 457, and Solola vs The State (2005) 11 NWLR (pt 937) 460, and conclusively arrived at the decision that:-

“The Court or Judge in Chambers may receive any affidavit sworn to for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received”.

Hitherto, the Supreme Court in the case of Anatogu vs Iweka II (supra) per Uwais JSC, referred to the provisions of Section 4 (3) of the Oaths Act, and held the view that;

“Since by these provisions, the evidence of the Pw1, is to be taken to have been given as if under oath; in other words as if he had been sworn, then no miscarriage of justice has been occasioned by the omission to administer the oath or affirmation”.

UGO, JCA poignantly resolved in the case of Aduloju vs Adejugbe & 1 or, (unreported) in Appeal No. CA/EK/65/2014, delivered on the 4th day of November, 2015,

I do not think that non-compliance of the appellant’s witness statement with the form of the 1st Schedule of the Oaths Act is such a fundamental vice that renders it completely defective. I think the provisions of Section 4 (2) and (3) of the Oaths Act are clear on it, to the effect that no irregularity in the form of an oath shall invalidate proceedings in any Court or render inadmissible evidence in or in respect of which an irregularity took place in the proceedings”.

I totally agree with their lordships. I fail to agree with the learned counsel for the respondent, and thereby the lower Court, that the failure of the deponent in the affidavit in support of the notice of intention to defend to strictly conform with the format in the Schedule to the Oaths Act, rendered the entire affidavit, and by implication the notice of intention to defend incompetent. My humble view is that affidavit having substantially conformed to the requirements of the Oaths Act, and having been duly sworn to before a recognized Commissioner of Oaths, the trial Court misconceived and misapplied the law, when it discountenanced

It is instructive to note that the said Witness Statement on Oath here in its first paragraph states:

Do hereby make oath and state that the deposition herein contained is the truth, and accordingly I state as follows:

Based on the above provisions and cases, I find that the failure to quote exactly the phrase used in the Oaths Act, not having occasioned any form of injustice, should not lead to the invalidation of the evidence.  It is also instructive to note that the said evidence was adopted in Court on oath and was subjected to cross examination.  This, in my opinion, should cure whatever defect that may have been occasioned by the improper swearing clause used.  Assuming I am wrong, however, it is hereby noted that the case of the Claimant failed for failure, on his part, to prove his case and not on the basis of the defence of the Defendant.

On Defendant’s first Relief in its counter-claim, which is for the sum of N75,000.00 (Seventy Five Thousand Naira) being the Claimant’s one month salary in lieu of disengagement from service notice to the Defendant; I do not find proof of its entitlement to the Relief.  Though by Exhibit D1/C4, the terms of employment of Claimant requires one month notice or salary in lieu, however, Defendant’s evidence with respect to the alleged absconding of duty by Claimant are not consistent to make this Court rely on it. On 17th April 2014, Defendant issued exhibit D3(Query) wherein Claimant was alleged to have absented from work ‘for the past three days.’   The three days stated therein would include the 14th of April 2014 which day Defendant stated that Claimant was on duty.  The 15th was the day of the discovery of the alleged theft over which the Claimant and other workers were interrogated.  It is therefore plausible that Claimant absconded on the days stated in the ‘Query’.  In the light of this inconsistency, I find that Defendant has not proved its entitlement to the one month’s notice or the salary in lieu of notice.  I therefore decline the order sought.

This means that the entire claim and counter-claim fail.  Parties are to bear their individual costs.

Judgement is entered accordingly.

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD

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