EJIMOFOR NGOZI EUCHARIA -VS- ACE INTERNATIONAL TRAINING

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: 20^th day of November, 2019 SUIT NO: NICN/PHC/93/2017

BETWEEN

EJIMOFOR NGOZI EUCHARIA——————————–CLAIMANT

AND

ACE INTERNATIONAL TRAINING CENTER LTD

ENGR. FESTUS EDIAE ——————-—————-DEFENDANTS

Representations:

Uche Ogwudu with Uzor Anyalechi for the Claimant.

A.B. Adesemoye with A.M. Akinrindoye, G.P. Gabriel and S.E. Iji for the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 28^th of September, 2017 along with a verifying affidavit, statement of facts, list of witnesses, witness statement on oath, schedule of documents and copies of the listed documents to be used at trial.

The suit was originally before the late Hon Justice A. Ibrahim, PhD. before it was assigned to this court sometime in October, 2018.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

(An Order for the payment of) the total sum of N2, 774,560.00 (Two Million, Seven Hundred and Seventy-Four Thousand Five Hundred and Sixty Naira) only, made up as follows:

Salary arrears for 21 months X N100, 000.00 =N2,100,000.00
Commission for JAMB payment N2,19 1,200.00 x 5% = N 109,560.00
Commission for NOUN payment N10,500.000.00 x 5% = N525,000.00
Commission for Lulu Briggs Foundation payment=N40, 000.00

In reaction to the claims, the Defendant filed memorandum of appearance on the 16^th of January, 2018 along with statement of defence, counter claim, list of witnesses, witness statement on oath, list of documents and copies of same.

Upon the Defendant filing the foregoing processes, the Claimant on the 28^th of January, 2018 filed an amended reply to the statement of defence and defence to the Counter-claim which were accompanied by a further witness statement on oath and additional list of document.

Trial commenced before this court on the 12^th of February, 2019 with the Claimant opening her case. The said Claimant was herself called as the sole witness as CW1 and she adopted her witness statements on oath marked as C1 (a) and C1(b). Through the said CW1, 9 documents were tendered in evidence and admitted as exhibits C2 – C10.

Arising from the statement of facts and witness statements on oath, the case for the Claimant is that she met the 2^nd Defendant sometime in 2010 and helped him incorporate a company (the 1^st Defendant) upon which she was offered employment by the 1^st Defendant through a letter dated the 16^th of June, 2014. The Claimant added that in her capacity as secretary, she drafted several agreements, memoranda and other documents between the 1^st Defendant and several organizations and she signed the documents whenever she is required. Claimant averred further that one of the terms of her employment was that she would receive 5% commission from any business she brought to the defendants consequent upon which she brought her friend, one Moses Akuha who introduced JAMB to the defendants. She averred that JAMB later used the center of the 1^st Defendant for its examinations in 2015 and paid Two Million One Hundred and Ninety-One Thousand Two Hundred Naira (N2,191,200.00) to the Defendants but the defendants did not pay her the agreed commission of 5% of the payment which stood at One Hundred and Nine Thousand Five Hundred and Sixty Naira (N109,560.00) only. Claimant added that in 2016 she brought the National Open University of Nigeria (NOUN) through her contact, Mr. James Ikagu and the University used the Center and paid the sum of Ten Million Five Hundred Thousand Naira (N10, 500, 000.00) only to the Defendants but the Defendants also failed to pay her the 5% commission of N525, 000.00 as stipulated in her employment letter. Claimant posited that she also introduced Chief Tamunonye Briggs to the Defendants who in turn brought O.B Lulu Briggs Foundation who paid N800,000.00 to the defendants for a seminar for the youths of Abonema community in Akuku-Toru LGA, Rivers State and yet her commission of N40, 000.00 was not paid. Claimant further averred that she was never paid any salary throughout her employment by the defendants and each time she demanded for same, 2^nd Defendant would plead with her to exercise patience until things improved. She later resigned on the suggestion of the 2^nd Defendant and the offering of another job with another company wherein 2^nd Defendant had interest. Claimant admitted that she is to forfeit one month salary in lieu of notice of resignation to the Defendants as her resignation took immediate effect.

Upon cross examination, CW1 posited that she is a lawyer and was the Company secretary of the 1^st Defendant from inception while admitting that she prepared exhibit C10 on the 4^th of June 2014 although her letter of employment took effect on 16^th of June, 2014, she was orally employed on the 1^st of June 2014. CW1 also posited that she was given two copies of Exhibit C2 while she signed the second copy in acceptance and also signed exhibit C9 and C10. She stated that she has 3 different signature while she uses one signature for the company documents. She posited that she knows James Ikagwu and she brought the said James Ikagwu to the Defendant while he introduced the Open University to the Defendants. She admitted that James Ikagwu did not award any contract to the Defendants but merely introduced the University to the Defendant. She admitted further that Chief Briggs was a family friend and did not award any contract to the Defendant as he only introduced the Defendant to Lulu Briggs Foundation while Moses also did not award any contract but introduced the Defendant to JAMB. She admitted that all three were facilitators and posited that Defendants never gave her money for accommodation nor furniture. She also stated that she was not engaged in private legal practice while in the employment of the Defendant as she was at work daily while the Defendant was her only source of income but she was not paid quantum meruit for services rendered. She posited that her office was close to the MD’s office and was later given another office where she was before leaving in May, 2017. She concluded that her employment was confirmed but she left some of her documents in the office due to the circumstance of her leaving the employment.

Upon the discharge of CW1, the Claimant closed her case while the Defendants opened theirs by calling one witness in person of Festus Ediae as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 2 documents were tendered and admitted in evidence as Exhibit D2 and D3 while Exhibit D2 was admitted under protest.

Arising from the statement of defence and witness statement on oath, the case for the Defendants is that while an offer of employment was made to the Claimant, same was never accepted hence there was no official contractual relationship of employer/employee or master and servant relationship with the claimant as the claimant was neither employed and or confirmed as an employee of the Defendants. The Defendants added that 2^nd Defendant only met the Claimant in the year 2012 when he, on behalf of himself and other promoters of the 1^st Defendant engaged the services of the claimant for the incorporation of the 1^st Defendant which services was fully remunerated and paid for by the defendants. They added that the Claimant did not accept the employment as she was a practicing legal practitioner who prefer to render services on individual engagement or as requested by 1^st Defendant and on ground that she chooses to render services to the 1^st defendant on the understanding that when the 1^st Defendant was buoyant enough to pay a reasonable amount of money as salaries, she can accept to work for the 1^st Defendant and she offered to rather assist the 1^st defendant by only charging concessional fees whenever her services was required on the condition that the Defendants grant to her a soft loan to secure a well-furnished accommodation and to meet other family and domestic expenses upon which she was loaned the sum of $2,580.94 to pay her brother’s school fees in the United States of America; the sum of N350,000.00 to secure an accommodation and the sum of N300,000.00 to purchase a set of furniture for her residence. The Defendants posited further that Mr. Moses Akuha, Mr. James Ikagu and Chief Tarnunonye Briggs never paid any money or monies whatsoever to the 1^st defendant in respect of any job and or contract from JAMB, National Open University of Nigeria (NOUN) or 0. B. Lulu Briggs Foundation and added that the 2^nd Defendant never advised the claimant to resign any appointment with the 1^st Defendant as there was nothing to resign when in the first place there was no employer/employee relationship between the claimant and the 1^st Defendant and concluded that the Claimant is not entitled to any of the reliefs sought.

Upon cross examination, DW1 confirmed that Exhibit C2 emanated from his office but the Claimant never accepted it while he paid $2,580.90 for the Claimant’s brothers’ school fees. He stated that the company was not buoyant and he also gave N300,000 loan in cash. He added that the good will was done even though the Claimant was not in his employment. DW1 also stated that Mr. Moses was paid while Dr. Briggs is not in Nigeria and never paid. He confirmed that Exhibit D3 is his statement of account and added that he doesn’t have evidence to prove that the Claimant was involved in private practice.

Upon discharge of DW1, the Defendants closed their case and matter was adjourned for adoption of final written address. Consequently, the Defendants filed their final written address on the 23^rd of July, 2019 and arising therefrom, counsel to the Defendant A.B. Adesemoye Esq. formulated two issues for determination to wit:

Whether or not there was an employment or contractual relationship between the claimant and either or both defendants on account of Exhibit C2 to warrant the grant of the reliefs claimed by the claimant.
Whether or not the defendants’ counter claim can succeed having regards to the available evidence before the court.

In arguing issue one, counsel posited that there had been a relationship between the Claimant and the 1^st Defendant from the inception of the registration of 1^st Defendant before the Claimant was offered the employment letter dated the 16^th of June, 2014. Counsel referred the court to exhibits C8, C4, D1, C9 and C10.

Counsel further posited that there is no evidence that the Claimant has ceased to be the Company’s secretary which she was from inception while exhibit C2 only attempted to set new terms which was unsuccessful.

Counsel submitted that the Defendants pleaded that the claimant did not accept the terms and conditions of Exhibit C2 as required and further pleaded in paragraph 15 of the statement of defence without any challenge and led uncontroverted evidence in proof that the claimant was not in the full employment of the 1^st Defendant as Company Secretary/Legal Adviser and did not render any service as such but rendered services which were fully paid for whenever engaged. He added that this was the position of the parties prior to and after issuance of Exhibit C2. Counsel cited the case of AMADI v NWOSU (1992) LPELR-442 (SC) on the effect of failure to cross-examine a witness on material point.

Counsel argued further that the Claimant failed to prove sufficiently that she accepted the terms and conditions of Exhibit C2 by signing and returning to the 1^st Defendant the attached copy of the said letter. He added that the claimant neither pleaded nor tendered a photocopy or an acknowledgement of receipt of the copy signed by her and the date and time of signing and returning same. Counsel cited the case of Kate Enterprises Ltd v Daewoo Nigeria Ltd (1985)2 NWLR(Pt. 5)116 and Edosomwan v Ogbeyfun (1996)4 NWLR (Pt. 442 Pg. 226.

Counsel argued further that Exhibit C2 which is a letter of offer of employment can only crystallize into a contract of employment if and only if it was accepted as prescribed by Exhibit C2. He added that the law is clear that for there to be a contract, there must be a valid offer and acceptance among other requirements and an offer must be accepted in the manner prescribed in order to crystallize into a contract. He cited the cases of Nneji v. Zakhem Con. (Nig.) Ltd (2006) 12 NWLR (Pt. 994) Pg. 297; Bilante International Ltd. V. NDIC (2011) LPELR-781(SC).

Counsel also argued that the purported staff identity card, Exhibit 4 was concocted for this case by the claimant as it is on the face of it not issued nor signed by the defendants to infer that it emanated from the defendant and this negates that acceptance of the contract even by conduct.

Counsel argued further that assuming without conceding that there was a binding contract, Claimant did not prove by evidence any business contact initiated, contacted and brought in by her as the claimant only pleaded and led evidence that the business with JAMB, National Open University of Nigeria (NOUN), 0. B. Lulu Briggs Foundation were brought by Mr. Moses Akuha, Mr. James Ikagu and Chief Tamunonye Briggs respectively.

He contended that the failure of the Claimant in this case to effectively deny all the claim of the defendants in paragraph 17 of the statement of defence and counter claim that she did not directly or indirectly initiate, contacted and or made any business contact for and on behalf of the 1^st Defendant with any person or group of persons (corporate or otherwise) and in particular; JAMB, National Open University of Nigeria (NOUN), 0. B. Lulu Briggs Foundation is fatal to her case. He cited the cases of Owosho & Ors v. Dada (1984) NSCC 568 and Cappa & D’Alberto Ltd. v Akintilo [2003] 9 NWLR (Pt.824)49.

In arguing issue two, counsel reproduced the counter claim and submitted that defendants (claimants by counter claim) pleaded and led evidence in proof of paragraphs 8, 9, 11 and 12 of the statement of defence that Defendants accepted the Claimant’s counter offer by granting her an interest free loan of $2,580.94 dollars to pay her brother’s school fees in the United States of America and the sum of N350,000.00 (Three Hundred and Fifty Thousand) Naira to secure an accommodation and that the defendants also on claimant’s request offered a loan of the sum of N300,000.00 (Three Hundred Thousand) Naira to purchase a set of furniture for her residence and further that the claimant was also given the cash sum of N350,000.00 (Three Hundred and Fifty Thousand) Naira as loan to secure an accommodation, by the defendants on the claimant’s request.

Counsel added that the Defendants also pleaded and led evidence in proof of paragraph 12 that the Defendants have consistently requested the claimant to pay back the said loans without any success and that the said loans are up till now due for repayment and unpaid by the claimant.

With regards to the admissibility of exhibit D2, counsel posited that based on sections 1 and 6 of the Evidence Act, 2011, the hall mark of admissibility of evidence is governed primarily by relevancy and by Paragraphs 8, 9, 10, 11, 12 of the statement of defence and paragraph 22 of the counter claim, the Defendant pleaded avalanche of facts pointing at exhibit D2 to make it relevant.

Counsel also argued that it is trite that by section 89 (h) of the Evidence Act 2011, secondary evidence may be given of the existence, condition and contents of a document when, inter alia, the document is an entry in a banker’s book. He cited the case of IBWA Ltd v Imano (Nig.) [2001] FWLR (Pt. 44) 421 SC.

Counsel also referred to Order 1 rule 9 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and section 12 (2) (a and b) of the National Industrial Court of Nigeria Act 2006 to contend that the court is not also bound by and may depart from the strict application of the rules of evidence in the interest of justice.

Counsel concluded by urging the court to dismiss the entire claim of the claimant and grant the counter claim of the Defendants.

In reaction to the final address of the Defendant, Claimant filed her final address on the 14^th of August, 2019 and arising therefrom, counsel to the Claimant, Uche Ogwudu Esq. formulated a sole issue for determination to wit:

Whether from the evidence adduced before this Honourable court, the Claimant has satisfactorily proved and shown that she is entitled to her claims in this suit.

In arguing the lone issue, counsel submitted that the Claimant has fully discharged the burden of proof placed on her by law and has thereby established her claim against the Defendants. He added that the law is very clear that he who asserts must prove. Counsel cited the cases of Akande vs. Adisa (2012) 15 NWLR (Pt. 1324) Pg. 538, B.E.G.H. Ltd & 2 Ors vs. U.H.S & L Ltd (2011) 7 NWLR (Pt. 1246) Pg. 247 at 250-252 and Sections 131, 132 and 133 (1) of the Evidence Act 2011.

Counsel added that the Claimant relied all through her case on oral and documentary evidence and satisfactorily through cogent and credible evidence established her case while submitting that the Claimant successfully established the nexus between her evidence in this suit and the Exhibits tendered in proof of her case.

He cited the case of Jim Adun v. Amen Osunde & Ors. (2003) 16 NWLR (Part 847) 643 at 668 on the meaning of ‘proof’ while he listed the exhibits tendered by the Claimant and restated the testimony of the Claimant in the course of cross examination to posit that the evidence of the Claimant is uncontroverted.

Counsel also restated the testimony of DW1 under cross examination to posit that there are contradictions in the statements of DW1 and added that the deposition of DW1 is not tied to any document.

Counsel added that by Section 167(d) of the Evidence Act, 2011, evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Counsel argued that where a party’s case is hinged or predicated upon a piece of evidence which is not produced, the case of that party would be fatally affected and submitted that in this case, all the vital pieces of evidence were not produced by the defendant because they would be unfavorable to him if produced. Counsel cited the cases of Adegbo vs. Ogbanje (2014) 10 NWLR (Pt. 1416) 557 paras F-H, Ogwuru vs. Cooperate Bank of Eastern Nig. Ltd (1994) 8 NWLR (Pt. 365) 685andAnike vs. SPDCN Ltd (2011) 7 NWLR (Pt. 1246) 227 at 240 paragraphs E-C.

Counsel further submitted that from the state of the pleadings and evidence before this Honourable Court, the Defendants have failed to prove and/or discharge the evidential burden imposed on them by the provisions of Section 131 and 132 of the Evidence Act, 2011. Counsel cited the cases of Abacha Foundation vs. UBA Plc (2010) 2-3 MJSC 107 and B.E.G.H Ltd & 2 Ors. vs. U.H.S & L. Ltd (2011) 7 NWLR (Pt. 1246) 247 at 284 — 852.

Counsel concluded by urging the court to find and hold that the Claimant has discharged the burden imposed on her by law and accordingly, grant her the claims in this suit or the reliefs against the Defendants.

In reaction to the foregoing, Defendant filed a reply on point of law on the 20^th of August, 2019 wherein counsel to the Defendant repeated the authorities and arguments made in respect to acceptance of Exhibit C2.

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 Defendant’s 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, the issues for the determination of the substantive suit is to wit:

Whether or not in view of the circumstances of this case and the evidence before the court, a valid contract of employment exists between the Claimant and 1^st Defendant.
Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

Before I address the said issues, I find it apposite to determine the status of the exhibit D2 which was admitted under protest in the course of trial upon the contention of counsel to the Claimant that the said document has failed to conform with section 84 of the Evidence Act, 2011. Counsel to the Defendant reacted by contending that the said document has been referred to in several paragraphs of the statement of defence making it relevant to this suit and same was pleaded and frontloaded. He added that this court is by the Rules governing same allowed to depart from reliance on the rules of Evidence.

Consequent upon the foregoing contention, I have taken a look at the said Exhibit D2 and find that same is a Guaranty Trust Bank statement of account in the name of the 2^nd Defendant and same being the account referred to specifically in Paragraph 10 of the statement of defence and which the Defendants intended to rely on in proof of certain monies paid to one Samuel Chinonso Ejimofor. I also find that being a statement of account, same bears the stamp of the issuing bank and bears the signature of the issuing banker.

Consequently, the said document is without a doubt relevant to this suit and same have been pleaded as it is indeed trite that relevancy is what most governs admissibility. See OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA). Upon the finding that the said document is relevant, this court is inclined to exercise its discretion as provided by section 12 (2) (b) of the National Industrial Court Act, 2006 which permits this court to depart from the rule of evidence in the interest of justice.

Consequently, I find the said Exhibit D2 to be relevant and same is accordingly admitted in evidence.

I then turn to issue one which is formulated in view of the contention between the parties to the effect that while the Claimant maintains that she was employed by the 1^st Defendant, the Defendants posited that the Claimant was offered employment but she did not accept same. The resolution of the foregoing is imperative as the claims of the Claimant rests squarely on same especially as it relates to payment of salaries.

In this regard, I find it apposite to start the resolution by stating that in order to take cognizance of employer-employee relationship between the parties before the court, there must have been in existence an enforceable contract of employment as posited by the Supreme Court in the case of IYERE V. BENDEL FEED AND FLOUR MILL LTD. (2008) 18 NWLR (Pt. 1119) 300 S.C. where the court held that:

“it is important to state that although much of modern employment law is contained in statutes and statutory instruments, the legal basis of employment (by whatever means) remains the contract of employment between the employer and the employee. The contract of employment is important in itself, in that it may give rise to a common law action for its enforcement or for damages for its breach.” Per Muhammad, J.S.C. (P. 21, Paras. B-D).

In view of the foregoing, the law is settled that there are basic elements of contract generally be it commercial contract or contract of employment and the position of the law was reiterated by the Supreme Court in the case of ABBA v. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2013) LPELR-20338(SC) where the court posited that:

“Before there is a contract there must be a definite offer by the offeror (the appellant) and a definite acceptance by the offeree (the respondent), and contracts are enforceable when there is consideration. Consideration is something that indicates conclusively that the promisor intended to be bound. Consideration is thus mandatory for enforceability. Consideration must move from the promisee and it need not be adequate but must have some value in the eyes of the law. An offer must be accepted before there is a valid contract. See College of Medicine v. Adegbite 1973 5 SC p. 149 Majekodunmi v. NBN 1978 3 SC p. 119. The above is the traditional view. There are some contracts where it is difficult to identify offer, acceptance, consideration, e.g. multi-partite contracts, and settlement contracts. In such a situation a valid contract exists when the parties are ad idem on all the terms of their agreement, and this is established by all sides to the agreement appending their signatures to the contract document.” Per RHODES-VIVIOUR, J.S.C. (Pp. 32-33, Paras. G-E)

Arising from the foregoing and putting the instant case into perspective, the question that arises is whether there was a valid offer made by the Defendant to the Claimant and whether the Claimant accepted the said offer?

To answer the said the first limb of the question, the Claimant posited that sometime in 2012, she introduced 2^nd Defendant to a legal practitioner who incorporated the 1^st Defendant and she was named the secretary of the said 1^st Defendant. She added that the 1^st Defendant did not start operations until 2014 and that was when her position as secretary was formalized by an offer of employment through a letter dated 16^th June, 2014 and she drafted several documents for the Defendants in her capacity as secretary while she was never paid salary from the said June 2014 until she resigned her employment on the advice of the 2^nd Defendant who offered her a similar position in another company with better salary.

The Defendants on the other hand posited that the Claimant did not accept the offer made to her as required by the letter of offer issued on the 16^th of June, 2014 as she chose to render services to the Defendant and charged concessional fees on the understanding that when the 1^st Defendant is buoyant enough to pay a reasonable amount as salary, she can accept to work for the 1^st Defendant.

By way of evidence, Claimant tendered a copy of the letter of offer of employment dated the 16^th of June, 2014 as exhibit C2; a copy of I.D. card bearing the name of 1^st Defendant and the name of Claimant as Company secretary.

Considering the fact that the first limb of the question arising from the formulated issue is whether a valid offer was made to the Claimant, I find it apposite to reproduce the relevant portion of the said letter of offer of employment which reads thus:

EJIMOFOR, NGOZI EUCHARA

No 34b Chief Benson Street

Rumuola

Port Harcourt.

Dear,

OFFER OF EMPLOYMENT

We are pleased to inform you that after due deliberations over your application, ACE INT’L TRAINING CENTER LTD have decided to offer you employment as a COMPANY SECRETARY/LEGAL ADVISER with effect from the 16th Day of June, 2014.

The terms and Conditions are specified below:

1 ALLOWANCE

You shall be placed on a monthly salary of #100,000.00 (One hundred thousand naira) only. You shall receive 5% commission on any business contact initiated, contacted and brought in by you.

…

If this offer is acceptable to you under all the terms and conditions stated above, please indicate by signing and returning to us the attached copy of this letter.

In view of the foregoing, Exhibit C2 clearly shows that an offer of employment was indeed made to the Claimant on the 16^th of June, 2014 and the concluding part of the letter is where the crux of the matter lies as it is in respect of the second limb of the question raised on the issue formulated.

The said paragraph which reads, “If this offer is acceptable to you under all the terms and conditions stated above, please indicate by signing and returning to us the attached copy of this letter” is a condition upon which the crystallization of the offer into a contract of employment is predicated. This is because it is only when an offer is accepted that it crystalizes into an enforceable contract. The Court of Appeal in the case of OJO v. ABT ASSOCIATES INCORPORATED & ANOR (2014) LPELR-22860(CA) reiterated the position of the law that:

“An acceptance of an offer is the reciprocal act or action of the offeree to the offeror in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. Putting it in another language acceptance is the act of compliance on the part of the offerree with the terms of an offer. It is the element of acceptance that underscores the bilateral nature of a contract. An acceptance of an offer may be demonstrated (a) by conduct of parties or (b) by their words or (c) by documents that have passed between them” Per AKOMOLAFE-WILSON, J.C.A. (Pp. 31-32, paras. G-G).

In the instant case, the Claimant was required to indicate her acceptance by signing and returning an attached copy of the letter. This means that the Defendants prescribed the mode of acceptance in which case the court in the case of BILANTE INTERNATIONAL LTD. V. NDIC (2011) LPELR-781(SC) posited that:

“It is settled law that where an offeror has prescribed a method by which an acceptance of the offer is to be communicated, the offeree must adopt only that method as any other method will render the purported acceptance ineffective.” Per ONNOGHEN, J.S.C. (Pp. 25-26, Paras. G-A).

It is upon the foregoing that there lies a controversy before this court as the Claimant posited through her reply to the Defendants’ statement of defence that she indeed signed the acceptance copy and handed same to the 2^nd Defendant while the Defendants insisted that she never did. While I reckon that the Claimant did not present an acknowledged copy that can prove that she indeed returned a signed copy in acceptance, I am mindful of the fact that the paragraph merely required her to return a signed copy. I also reckon that the claimant gave the Defendants notice to produce the said returned copy.

It is in the light of the foregoing that the testimonies of witnesses before the court is considered along with general circumstances of the case and other pieces of evidence before the court to determine whether or not there was an acceptance giving rise to a contract of employment between the parties.

Upon consideration of other pieces of evidence before the court, I find that Claimant tendered Exhibit C4 which is a copy of the I.D. card which the Claimant posited was handed to her. With regards to this piece of evidence, counsel to the Defendant contended that the card was made for the purpose of this suit as it bears no signature of an authorized officer.

The said argument is of no consequence as the said I.D. card bears no date of issuance to ascertain when it was made. Also, the rear of the card states that it is ‘signed by management’. The contention consequently does not displace the Claimant’s position that the card was issued to her in June 2014.

Claimant also tendered exhibit C9 and C10 which she posited were documents prepared by her for the Defendants and which she signed as secretary when required. The said Exhibit C9 is a copy of a memorandum of understanding between the 1^st Defendant and one Costech Computers Ltd while C10 is also a memorandum of Understanding between Nubi Educational Counseling Ltd and the 1^st Defendant. Exhibit C9 is dated 6^th August 2014 while Exhibit C10 is dated the 4^th of June, 2014.

Upon an evaluation of the said documents, I find that they do not in themselves establish that they were prepared by the Claimant as they are not franked, however, I reckon that there was no denial by the Defendants that the Claimant prepared the said documents. Although, the Defendant posited that the Claimant rendered services for the Defendant and charged concessional fees, it was not stated by the Defendants what those jobs were and how much was paid for the services.

In addition, Exhibit C10 suggests that the Claimant rendered services to the 1^st Defendant prior to the issuance of the letter of offer of employment while Exhibit C9 suggests that she rendered services to the 1^st Defendant after the offer of employment was issued.

This court is also mindful of the fact that the Claimant tendered exhibit C8 which is the Corporate Affairs Commission Form 2.1. wherein the Claimant was named the Company secretary from inception. Although the said CAC form does not in itself constitute an employment of the Claimant, however, there is no other evidence before the court showing that the Defendants have changed or appointed someone else as secretary after making the offer of employment on the 16^th of June, 2014 and the implication of which is that the Claimant remains the secretary of the 1^st Defendant.

In addition, Exhibit C3 which was tendered by the Claimant is also a letter of offer of employment issued to the Claimant by Marine Blessing Ltd dated the 1^st of April, 2016 and signed by the 2^nd Defendant. The said letter bears similar wordings as Exhibit C2 except for the fact that the salary stated in Exhibit C5 is N250,000.00 and without provision for commission of 5% while the salary stated in exhibit C2 is N100,000.00.

In view of the foregoing, I must state that the standard of proof required in civil proceeding is on balance of probability or preponderance of evidence and the court in the case of OKORIE v. UNAKALAMBA & ANOR (2013) LPELR-22508(CA) has provided an exposition on the meaning of preponderance of evidence when the Court held that:

“How then is a case proved by preponderance of evidence or balance of probability? The Black’s Law Dictionary, 8th Edition at page 1220, has proffered an answer that preponderance of evidence is the burden of proof in most civil trials, in which the jury is instructed to find for a party that, on the whole, has the stronger evidence, however slight the edge may be. Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Per AJI, J.C.A. (Pp. 40-41, paras. G-D).

In the instant case, the evidence before the court, the testimony of the Claimant before the court and the general circumstances of the case is sufficient to incline the fair and impartial mind of this Court to take the side of the Claimant in believing that she indeed signed and returned the acceptance copy and same crystalized the offer made by the Defendants into a valid contract of employment making the terms therein binding on the parties.

In other words, the Claimant upon a preponderance of evidence has established the fact that she was offered employment by the 1^st Defendant and the said offer of employment was duly accepted and same was returned to the Defendant by her thereby creating an employer-employee relationship between the parties.

Consequently, issue one is resolved in favour of the Claimant to the effect that in view of the circumstances of this case and the evidence before the court, a valid contract of employment exists between the Claimant and 1^st Defendant.

That said, I then turn to issue two which touches on the reliefs sought by the Claimant and the resolution of which largely depends on the determination of issue one above.

The reliefs sought by the Claimant arose entirely from the terms stated in Exhibit C2 which this court has held to be binding on the parties. Notwithstanding the bindingness of the said terms of employment, it is still incumbent on the Claimant to prove that she is entitled to the claims made. In this regard, the court in the case of Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 held that:

“Under our system of procedure the duty of the person who asserts is to prove. This burden must be fully discharged so that the trial Court will be satisfied as to the genuineness of the plaintiff’s claim. The burden of proof will not shift unless the defendant admits the claim of the plaintiff, in which case, there may be no full dress hearing. However, if the plaintiff’s case is not proved then the burden of proof remains undischarged and it will be of no help to rely on the weakness of the case for defence”. PER BELGORE, J.S.C. (P.36, Paras.C-E.

In the instant case, the relief sought by the Claimant is for a total sum of N2,774,560.00 part of which is a claim for salary arising from her letter of offer of employment wherein she was offered to be paid the sum of N100,000.00 per month. While Claimant alleged that from the month of June when she was issued with the letter of offer of employment till the 1^st of April, 2016 when she was issued another employment with Marine Blessing Ltd by the 2^nd Defendant, she was not paid salary. She tendered through the 2^nd Defendant as DW1, the First Bank statement of account of the 1^st Defendant as Exhibit D3.

Arising from the said statement of account which establishes transactions on the account from the 7^th of January, 2014 to 14^th of April, 2016, there is no narration of salary being paid to the Claimant in the sum of N100,000.00. This in addition to the fact that the Defendants have not in any way posited that salaries were at any time paid to the Claimant makes for sufficient proof that the Claimant is entitled to the claim for salaries for 22 months spanning from June 2014 to March 2016. The Claimant however computed for 21 months on the basis that she resigned the employment of the 1^st Defendant upon the advice of the 2^nd Defendant to join Marine Blessing Ltd and consequently ought to relinquish one month salary in lieu of notice.

Consequent upon the foregoing, the Claimant having established that her salary is the sum of N100,000.00 through her letter of offer of employment and having established via exhibit D3 that throughout her period of employment, the Defendants failed to pay her any salary, the Claimant is found to be entitled to the claim for the sum of N2,100,000.00 as arrears of salary and the 1^st Defendant is hereby directed to pay the said sum to the Claimant.

The rest of the claims made by Claimant is for Commission for JAMB payment at N2,191,200.00 x 5% = N 109,560.00; Commission for NOUN payment N10,500,000.00 x 5% = N525,000.00 and Commission for Lulu Briggs Foundation payment =N40, 000.00. The said claims are predicated on the assertion by the Claimant that one of the terms of her employment is that she will be entitled to 5% commission on any business which she brings for the Defendants and she averred to the effect that she introduced three different persons who in turn facilitated the contracts upon which she is claiming 5%.

The Defendants contended that the Claimant did not directly or indirectly initiate, contact nor made any business contact for and on behalf of the 1^st Defendant and the persons mentioned by the Claimant never paid any money to the 1^st Defendant.

In view of the foregoing, it is incumbent on the Claimant to prove that she indeed brought the business for the Defendant and to also establish by evidence the sum agreed on the contract and that same monies were paid to the Defendants.

Upon the evaluation of the evidence before the court, there is no such evidence to establish the foregoing as the only evidence in relation to the claim for commission is the paragraph stating the entitlement in the letter of offer of employment which does not in itself prove that the Claimant indeed made the business contact upon which she is claiming commission. This is in addition to the fact that the sums claimed as 5% of a certain sum are specific damages which requires strict proof. See ABI v. CBN & ORS. (2011) LPELR-4192(CA).

In the absence of sufficient proof, the claims for the sums of N109,560.00, N525,000.00 and N40, 000.00 as 5% commission fails and they are accordingly dismissed.

Consequent upon the foregoing, issue two is resolved in favour of the Claimant in the extent to which her claim for salary has been granted and resolved against her in respect of the claim for 5% commission.

In the final analysis, the case of the Claimant is found to be meritorious in the extent to which part of the reliefs sought have been granted while the rest of the claims lack merit and is accordingly dismissed.

Judgment is accordingly entered in respect of the substantive suit.

I make no order as to cost.

I now turn to the Counter Claim of the Defendant which is generally regarded as an independent suit as the court in Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, held that:

“It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”.

As an independent claim, the Defendant counter-claims against the Claimant as follows:

a) refund/repayment of the interest free loan of $2,580.94 (five(sic) Thousand, Five hundred(sic)) dollars granted to the defendant to pay her brother’s school fees in the United States of America and the sum of N350,000.00 (Three Hundred and Fifty Thousand) Naira to secure an accommodation.
b) refund/repayment of the interest free loan of the sum of N350,000.00 (Three Hundred and Fifty Thousand) Naira to secure an accommodation.
c) refund/repayment of the interest free loan of the sum of N300,000.00 (Four Three Hundred Thousand) Naira granted to the defendant to purchase a set of furniture for her residence.
d) 10% post Judgment interest annually on the total sum claimed until liquidation thereof.

The facts relating to the counter Claim is that the Defendant posited that the Claimant made an offer to the Defendants to loan the sum of $2,580.94 to pay her brother’s school fees and also asked for the sum of N350,000.00 to secure an accommodation while also taking another loan of N300,000.00 to purchase furniture for her residence. The Defendants posited that the N2,580.94 dollars was sent to the Claimant’s brother in the USA through the 2^nd Defendant’s GTbank dollar account while the other sums were given to the Claimant in cash.

The Claimant in reaction contended that she never made any such offer for paying her brother’s school fees nor any money for accommodation and purchase of furniture. She averred that her brother travelled to the USA in 2007 while the 2^nd Defendant got to know that her brother was in the USA sometime in 2014 and decided to meet him upon which they both had some kind of business relationship such that as recent as 2016, her brother was helping the 2^nd Defendant to buy some equipment from the USA. She posited that her brother has been working and only recently got an admission in 2018 to study in the USA. She added that her brother is self-sufficient and has bought properties in Rivers state.

While I have earlier captured the arguments of counsel to both parties with regards to the Counter-claim, I have also considered and evaluated the evidence before the court in relation to the counter claim and arising therefrom, I find that the sole issue for the determination of the Counter Claim is to wit:

Whether or not the Defendant/Counter-Claimant is entitled to the reliefs sought.

In the determination of the reliefs, I must also posit that the burden is on the Counter-Claimants to prove that they are entitled to the reliefs sought as the court in AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) held that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence.” Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).

In an attempt to discharge the said burden of proof, Defendant tendered Exhibit D2 which is a GTbank statement of dollar account of the 2^nd Defendant wherein six transactions were ticked, five of which were on the 1^st of August 2014. The first of the said transactions is for the sum of $2500 and the narration reads “SWIFT TRANSFER FX TRF – (EDIAE FESTUS E/SAMUEL CHINONSO EJIM) SCHOOL FEES”. The rest of the transactions were charges following the first transfer which included commission, vat, correspondent charge and swift charge.

The foregoing was the only piece of evidence placed before the court by the Defendant/Counter-Claimant in respect of what the Defendant claimed to be loan offer to the Claimant.

While the Claimant acknowledges that her brother’s name is Samuel Ejimofor, she has denied taking a loan from the 2^nd Defendant and that the 2^nd Defendant has never asked her to pay back any such loan.

I also take cognizance of the fact that the Claimant tendered Exhibit C7 which are copies of Deed of conveyance of properties purchased by her brother, Chinonso Samuel Ejimofor in 2012 and 2017. She also tendered exhibit C6 which is an email correspondence between the said Chinonso Samuel Ejimofor and Festus Edaie, the 2^nd Defendant wherein they were communicating in respect of certain equipment which are in high demand.

In view of the foregoing, it is clear to all and sundry that there is no evidence before the court with regards to a loan agreement between the Claimant and the 2^nd Defendant and the money transferred from the 2^nd Defendant’s dollar account was not transferred to the Claimant with a narration indicating that same is a loan. The transfer was rather made to the Claimant’s brother while the Defendants have failed to establish the fact that the said money was transferred to the brother on the request of the Claimant.

In addition, exhibit C6 establishes the fact that there is a relationship between the 2^nd Defendant and Chinonso Samuel Ejimofor, whom the 2^nd Defendant transferred money to which creates a possibility that the money could have been transferred to the said Chinonso Samuel Ejimofor without the knowledge or consent of the Claimant.

Aside from the money transferred to Chinonso Samuel Ejimofor through 2^nd Defendant’s dollar account, the Defendants have failed to establish the fact that any money was given in cash to the Claimant upon which the Claimant acknowledged same as loan for accommodation or purchase of furniture.

Consequent upon the foregoing, there is no gainsaying that the Defendant/Counter-Claimant has woefully failed to establish the fact that they are entitled to the claims sought in reliefs (a), (b) and (c) and they are accordingly refused.

With regards to relief (d) which is for post judgment interest at 10%, it is clear that the said relief is dependent upon the court granting one or all of the monetary claims made by the Defendant/Counter-Claimant. Upon the refusal to grant any of such monetary claims as made in reliefs (a), (b) and (c), it is axiomatic that there is no basis upon which post judgment interest can be granted. Consequently, the said relief (d) is bound to fail and same is accordingly refused.

Having addressed all the reliefs sought by the Defendant/Counter-Claimant, the sole issue formulated for the determination of the counter claim is resolved against the Defendant/Counter Claimant to the effect that in view of the evidence before this Court, the Defendant/Counter-Claimant is not entitled to any of the reliefs sought.

In the final analysis, the counter-Claim of the Defendant lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered in respect of the Counter-claim

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.