Kolapo Kolade -VS- Governor, Ekiti State & 2 ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED: 18^TH NOVEMBER, 2019 SUIT NO: NICN/AK/05/2019

BETWEEN

KOLAPO KOLADE …… CLAIMANT

AND

GOVERNOR, EKITI STATE
ATTORNEY GENERAL, EKITI STATE ……. DEFENDANTS
EKITI STATE GOVERNMENT

REPRESENTATION:-

KOLAPO KOLADE APPEARS FOR HIMSELF (CLAIMANT)

OYINADE OLATUNBOSUN, ASST. CLO, EKITI STATE, FOR THE DEFENDANTS.

JUDGMENT

The claimant by a complaint on the 18^th February, 2019 instituted this action against the defendants wherein he claimed against the defendants as follows:

(a) AN ORDER of this Honourable Court directing the Defendants to immediately/forthwith pay to the claimant the sum of N5,765,944.16 (Five Million, Seven Hundred and Sixty Five Thousand, Nine Hundred and Forty Four Naira, Sixteen Kobo) only being the acknowledged indebtedness of the Defendants to the Claimant.

(b) AN ORDER of this Honourable Court directing the payment of interests on the acknowledged indebtedness of the Sum of N5,765,944.16 at the rate of 21% per annum from 3^rd October, 2018 until judgment is given and at the rate of 10% per annum until full and final liquidation.

(c) ORDER of this Honourable Court directing the payment of the Sum of N1,000,000.00 only being the costs of this action which includes the solicitor’s fees, the cost of filing the action, transportation to and from Ado Ekiti, Ekiti State and other incidental and Sundry expenses.

The claimant filed along with the complaint all the accompanying processes i.e. the statement of facts, witness statement on Oath, list of witnesses and documents to be relied upon.

The claimant’s case is that he was appointed into the cabinet of the Ekiti State Government by the incumbent Governor of the State as a Commissioner in 2015, and later served as Attorney General and Commissioner for Justice in the erstwhile administration from 2017 until the end of the tenure of the administration in 2018. He averred that at the expiration of the tenure on the 15^th October, 2018, his accrued salary for 4 ½ months, inclusive of allowances and other benefits totaling the sum of N5,765,944.16 (Five Million, Seven Hundred and Sixty-Five Thousand, Nine Hundred and Forty-Four Naira, Sixteen Kobo only) net of all deductions were left unpaid.

The claimant pleaded that the indebtedness was duly acknowledged by the defendants, but his demand for the payment of the amount from the defendants was to no avail, in that the Defendants failed, refused and neglected to pay his outstanding entitlements.

WHEREOF the Claimant claims against the Defendants as aforestated. On the 26^th day of February, 2019, the Defendants filed a Memorandum of Conditional Appearance and on the 22^nd May, 2019, they filed their Statement of Defence with other accompanying processes.

The defendants denied paragraphs 9, 10, 13, 14, 15, 16 and 19 of the claimant’s statement of Facts. They admitted that the claimant served as a Commissioner in the former administration which was fond of paying both workers and public office holders in a haphazard manner and neglected its financial obligations as and when due. This fact they stated is clearly uncontested from paragraph 8 of the claimant’s statement of facts.

They pleaded further that the former administration owed salaries ranging from 5 months to 8 months to varied categories of workers including public office holders at the end of its tenure and added that the Letters acknowledging the indebtedness to these office holders were written so that such amount can be easily claimed from successive administration.

The defendants averred that the salary arrears claimed in this suit has not been paid to anyone, except for the arrears paid in December 2018, and this is well known to the claimant. They added that the present administration commenced payment of salaries from October 2018, leaving the arrears to be paid at intervals and as at when the state is buoyant enough. They further averred that the claimant’s claim is premature given that the claimant will be paid the arrears as soon as the defendants commence payment of the arrears to all its workers.

The defendants finally urged the court to dismiss this suit for being frivolous, vexatious, an abuse of judicial processes and lacking in merit.

The claimant filed a reply to the defendants’ statement of defence and an additional statement on oath on 31^st May, 2019. In his reply, the claimant averred that the arrears allegedly paid in December 2018 to workers in the state was not paid to him and this he alleged was done out of malice because he served under the previous administration.

The claimant denied operating his law office while serving as Commissioner for justice, and added that even if he did, this will not preclude the defendants from meeting their obligations to him. He averred further that payment of his salaries and allowances is not contingent upon the payment to other workers.

Asides the above processes, and before opening the trial in this case, it is imperative to point out that a Notice of Preliminary Objection was filed against this suit by the defendants, on 22^nd May, 2019, challenging the jurisdiction of the court to entertain this action and this was heard by the court. The claimant in response to same filed a Reply on point of law on the 31^st May, 2019. The defence counsel moved his application on the 3^rd June, 2019, thereafter counsel for the parties adopted their written addresses on the objection, and the court reserved ruling on same till final judgment. Premised on the above, I will now go ahead to read my Ruling on the defendants’ Preliminary objection.

RULING

The Defendants’ preliminary objection was dated 20^th May, 2019 and filed 22^nd May, 2019, and was brought pursuant to Order 17 Rule 9 of the National Industrial Court (Civil Procedure) Rules 2017 and the inherent jurisdiction of the court and on the following grounds:

The action is premature
The entitlement being claimed by the claimant has not been paid to any public officer in Ekiti State
The action is grossly incompetent before this honourable court
The action is speculative, pre-emptive, frivolous and malicious.

Attached to the defendants’ objection is a 12 paragraph affidavit deposed to by Adekunle Mosunmola, of the Department of Political and Economic Affairs, Governor’s Office, Ekiti State, and a written address both dated 22^nd May, 2019. The defendants also placed reliance on all processes filed by the claimant in this suit.. In the address, learned counsel for the defendants distilled two issues for determination, which are;

Whether the claimant has a cause of action in instituting this matter in view of the facts of this case
Whether the claimant’s action is not premature, pre-emptive, speculative, frivolous and vexatious

On issue one, counsel submitted that from the affidavit in support of the preliminary objection, the defendants have not in any way committed any wrongful act against the claimant because the amount claimed as outstanding salary arrears has not been paid to anyone in the service of the State. Learned Counsel cited Registered Trustees of the Redeemed Christian Church of God & 2 Ors. v Honourable Olubode Bankole (2011) 14 WRN 138 @ 156 Line 35.

The defence counsel further contended that a cause of action will only arise if and when the defendants neglect to pay the outstanding salaries of the claimant and it is proven that others were paid. He therefore surmised that this court lacks the vires to entertain this suit, and urged the court to resolve issue one in favour of the defendants.

On issue two, learned counsel submitted that the claimant’s suit lacks merit because no wrong resulting in a loss or injury has been committed by the defendants against the claimant. Learned counsel concluded by urging the court to dismiss the claimant’s case and upholding the defendants’ preliminary objection.

In his response to the preliminary objection raised by the defendants, the claimant formulated two issues for determination:

Whether the preliminary objection itself is competent
Whether there is anything in the preliminary objection that robs this honourable court of jurisdiction.

On issue one, the claimant submitted that the preliminary objection violates Order 15 Rule 1(a) and Order 30 Rules 2(1) (a) and (2) of the rules of this court because it was filed without leave of court, and almost three months after the defendant’s had entered an appearance, contrary to the 14 days mandated by the above cited rules of this court. Counsel therefore prayed that the objection be dismissed with cost. He relied on the cases of Williams V. Hope Rising Voluntary Funds Society (1982) 2 SC 140; Alhaji Idris Adamu & Ors. V. Hajiya Jummai Bashiru & Ors (1997) 10 NWLR (Pt. 523.

The claimant further argued that the notice of preliminary objection is incompetent on the ground that same was not signed by an identified person, on this he cited Tanimu v Rabiu (2007) All FWLR (Pt. 900) 391 at pages 410-412.

On issue two which is whether there is anything in the preliminary objection that robs this court of jurisdiction as conferred on it by the Constitution of the Federal Republic of Nigeria. It is claimant’s argument that this court is properly constituted, as the subject matter is within its jurisdiction and the case was initiated by the due process of law, more over there is no feature in the case preventing this court from exercising its jurisdiction

The claimant in response to the 1^st ground of objection raised by the defendants that this suit discloses no cause of action, argued that what the court needs to do to ascertain whether there is a cause of action is to look at the claim as contained in the complaint and statement of facts. He submitted that a look at the originating processes, particularly paragraphs 5 to 18 of the statement of facts reveals that the claimant has a cause of action.

The claimant submitted that having decided the issue of whether the claimant has a cause of action, the second issue raised by the defendants alleging that this suit is premature, pre-emptive and vexatious is bound to fail as it is founded upon the first issue. The Claimant in conclusion, submitted that the preliminary objection is vexatious, malicious and a clear case of standing the law on its head, thus same should be dismissed with cost.

In resolving the issues involved in this case, I find it pertinent to decide on the issue of jurisdiction first and foremost as it is the bedrock upon which the adjudicatory power of the court rests, and any decision arrived at by the court without the requisite jurisdiction is null and void ab initio.

The defendants raised an objection to this court’s jurisdiction to entertain this suit on the ground that the claimant has no cause of action and further argued that the action of the claimant is premature, preemptive, frivolous and vexatious. The claimant on his own part argued that the notice of preliminary objection is incompetent on the following grounds:

a)That the notice of preliminary objection was out of time and without the leave of court being sought and obtained.
b)That there is no nexus between the signature and the name on the seal attached to the notice of preliminary objection.

The competence of the preliminary objection as contested by the claimant will here be examined before delving into the merits of the objection itself.

The claimant relied on Order 15 Rule 1(a) and Order 30 Rule 2 (i) and (ii) of the National Industrial Court (Civ. Pro.) Rules 2017, in attacking the competence of the defendants Notice of Preliminary objection, the cited Order is to the effect that a defendant who intends to defend an action in this court must file his statement of defence along with the preliminary objection (where he intends to raise same) within 14 days from the date of receipt of the claimant’s originating processes except if he obtains the leave of court.

A look at the record of this court reveals that leave was granted to the defendants to file their statement of defence (which includes this preliminary objection) on 3^rd of June, 2019 and same was thereafter deemed properly filed and served. Above all, it is the position of the law that a preliminary objection can be raised at any time or any stage of the proceedings see Alabi & Ors V. Oyewunmi & Ors. (2015) LPELR-24271 (CA) where Abiriyi JCA held as follows:

‘’It is now trite law that the issue of jurisdiction can be raised at any stage of the proceedings in the lower court, in the Court of Appeal or even in the Supreme Court’’

Thus there is nothing stopping the defendants from raising an objection to the jurisdiction of the court at any stage of the proceedings. I must pause here to state that the above rule of court cited by the claimant is for administrative convenience of court and to fast track the trial of cases and is not meant to forestall the parties from raising any objection as to the competence of the court to adjudicate over a matter. It is based on this premise that I find that the claimant’s argument on this issue is untenable and unmeritorious and is hereby discountenanced.

On the second ground raised by the claimant in contesting the competence of the preliminary objection i.e. that the Notice of Objection was not signed by an identifiable Legal Practitioner. This will call for a thorough perusal of the process in question. The defendants’ preliminary objection filed on 22^nd May, 2019, reveals a list of names, and the first name so listed and emboldened therein is that of Olawale Fapohunda Esq. the Attorney General of Ekiti State, also the seal affixed to the notice of preliminary objection has the name Olawale Fapohunda Esq. on it. Thus there is no doubt that the identity of the person who signed the process in question is Olawale Fapohunda Esq. See Daniel Ihibe Omede v Umion Bank of Nigeria Plc. (2013) LPELR-22793(CA) where Abdullahi JCA, held as follows:

‘’All processes filed in Court are to be signed as follows: a) The signature of counsel, which may be any contraption, b) name of the counsel clearly written, c) the party counsel represents, d) name and address of law firm.

Also in Williams v Adold/Stamm Int’l (Nig.) Ltd. (2017) 6 NWLR (Pt. 1560) Pg. 1 at 19-20, it was held by the apex court that;

“A process prepared and filed by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his firm where he carries out his practice. The grouse of the respondents appeared to be that there was no mark beside either of the two names to identify which of them signed the process however the name Ladi Williams, though handwritten, was very clear and legible. The court was satisfied that there was no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name of Chief Ladi Rotimi Williams SAN did not mislead the respondents or the court as to who signed the process and such omission cannot invalidate it.”

The signature of Olawale Fapohunda Esq is clearly evident in the process in question so also his office and seal, which leaves no doubt as to the identity of the counsel that signed the process. In the light of the foregoing, I find that the notice of preliminary objection is competent and properly signed. In all I find the contention as to the competence of the preliminary objection untenable and same is hereby discountenanced.

After resolving the competence of the defendants’ Preliminary objection, I will go ahead to treat the grounds of the objection as raised by the defendants. In doing so I have formulated a sole issue that will best determine the objection i.e.

Whether or not this court possesses the requisite jurisdiction to entertain this suit.

The 1^st ground of the objection is whether the action of the claimant discloses a cause of action. A cause of action is well defined in the case of Mulima v Usman (2014) 16 NWLR (Pt. 1432) 160 at pg. 198 Paras. F-H, where the Supreme Court defined it as a combination of facts and circumstances giving rise to the right to file a claim in court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed. See also CRU Tech v Obeten (2011) 15 NWLR (Pt. 1271) 588.

It is trite that in determining whether a claimant’s action discloses a cause of action, the court will necessarily restrict itself to the plaintiff’s statement of claim without recourse to the defendant’s statement of defence. See Mulima v Usman (SUPRA) pg. 199 Paras. A-B and Seagull Oil Ltd. v Moni Pulo Ltd. (2011) 15 NWLR (Pt. 1271) pg. 525 at 548.

The case of the claimant is that he served as a commissioner in Ekiti State by virtue of which he is entitled to salaries and other entitlements of which the defendants have failed or neglected to pay him the arrears of his entitlements since he left office in October, 2018. The facts in this case prima facie discloses that the claimant has a perceived right of which a breach thereof entitles him to approach the court for redress. Premised on this, I find that this action discloses a cause of action of which the adjudicatory power of court can be invoked for a remedy. I so hold.

The defendants in their 2^nd ground of objection contended that, on the assumption that the claimant’s action discloses a cause of action, same is premature, preemptive, frivolous and vexatious. The claimant in his pleadings averred that he left office since the 15^th day of October, 2018, and as at the time, he was owed salaries and entitlements totaling N5,765,944.16 (Five Million, Seven Hundred and Sixty-Five Thousand, Nine Hundred and Forty-Four Naira, Sixteen Kobo only) net of all deductions.it is the claimant’s case that the defendants acknowledged their indebtedness to him, whereupon he caused two letters of demand to be written to the defendants without any positive response from them, consequent upon which he initiated this suit.

It is well tried and tested principle of law that the termination of employment brings closure to a master-servant relationship. See Afribank (Nig) Plc. v Osisanya (2000) 1 NWLR (Pt. 642) pg. 599.

Furthermore, in cases for payment of wrongfully withheld salaries, the cause of action accrues when the salaries are due for payment. See L.U.T.H v Adewole (1998) 5 NWLR (Pt. 550) 406. It is revealed in Exhibit LP3 that the tenured appointment of the claimant expired on 15^th October, 2018, and it was on that day that the claimant’s severance and furniture allowances became due and actionable. See Emiko Eyasan v NNPC (2012) LPELR 19667 CA.

It is therefore evident from the above stated that there is a perceived infringement of the claimant’s legal right which is actionable and behooves on the claimant to seek and call on the adjudicatory power of court to determine same, knowing that he is no longer in an employment relationship with the defendants in this case. I find on the whole that the claimant has shown enough cause for this suit to be heard and determined on its merits. It is based on the above reasoning that I hold that the preliminary objection lacks merit and consequently fails and is accordingly dismissed. I so hold.

No order as to cost.

Ruling is entered.

JUDGMENT

This suit was initiated vide a complaint and Statement of Facts filed on the 18^th February, 2019, against the defendants for the reliefs aforestated.

I have stated earlier that the claimant and defendants filed all their processes in this suit in compliance with the rules of this court and I have also summarized the cases for both parties in this Judgment. I will therefore proceed with the case made out during the course of trial in this case without much ado.

Trial commenced in this suit on 3^rd June, 2019 with the claimant testifying for himself as CW1, he adopted his written statement on oath and his additional statement on oath, CW1 also tendered several exhibits which were admitted without objection and marked exhibits LP1-LP5, thereafter the defence counsel sought an adjournment which was granted by the court and the claimant was cross examined on 3^rd July, 2019, and thereafter closed his case. On the 10^th of July, 2019, the defence opened their case by calling Adekunle Mosunmola of the Department of Political and Economic Affairs, Governor’s Office, Ekiti State as DW1, she adopted her witness statement on oath, and did not tender any exhibit, she was also duly cross-examined and the defence closed. The court subsequently adjourned the case for adoption of final written addresses, and both parties adopted their addresses on 18^th October, 2019.

The defendants’ final written address was filed on the 8^th August 2019 wherein Learned Asst. Chief Legal Officer Olatunbosun Oyinade for the defendants raised two issues for determination, viz;

Whether the action of the claimant is enforceable considering the facts before the honourable court
Whether the claimant is entitled to the reliefs sought based on the preponderance of evidence.

Learned ACLO referred the court to the preliminary objection argued on 3^rd June, 2019 on the first issue in urging the court to uphold the defendants’ argument and dismiss the claims of the claimant. He submitted that an action only matures or arises on a date or from the time when a breach occurs which warrants the victim to institute such an action in court. He cited the case of U.M.B v CBN (2017) ALL FWLR (Pt. 880) Page 823 at 844, paragraphs D-H. Counsel continued that for an action to be enforceable, two elements must be present i.e. (a) wrongful act of the defendant and (b) resultant damage to the claimant, he posited that these two elements were not established by the claimant, he thereafter urged the court to resolve issue one in favour of the defendants.

On issue two, learned counsel submitted that although Exhibit LP 3 ( which is the letter that emanated from the defendants acknowledging their indebtedness to the claimant) was admitted in evidence, same ought to have been tendered through its maker for the document to have any probative value, as only the maker of a document can be cross-examined on it. He argued that CW1 is not the maker of Exhibit LP3 thus his testimony on it amounts to hearsay evidence, citing Section 83(1) of the Evidence Act 2011 and Okereke v Umahi (2016) All FWLR (Pt. 833) Pg. 1902 at 1924, Paras. D–E.

The defence counsel submitted that the claimant’s action is incompetent, and his claim for pre and post judgment interest is unjustifiable. He argued that this sort of interest is only gra nted in commercial matters and claim for return of money whereas this case does not fall under these categories, he therefore argued that the claimant’s prayer for interest cannot be sustained, and placed reliance on the cases of Skymit Motors Ltd v UBA Plc. (2014) All FWLR (Pt. 721) pg. 1547 at 1566-1567, paras F-B and Amede v UBA Plc. (2015) All FWLR (Pt. 936) Pg. 1569 at 1574, Ratio 7.

Learned Counsel added that he who comes to equity must come with clean hands, he stated that the claimant is guilty of inequitable conduct, citing Adejumo v Ayantegbe (1989) 2 NWLR (Pt. 110) Pg. 447 at 452, he submitted that Exhibit LP3 was made at the twilight of the past administration and thus was not made in good faith, he urged the court to so hold.

In conclusion, learned counsel submitted that the claimant has failed to prove his case and urged the court dismiss the action of the claimant placing reliance on the case of Ladoja v Ajimobi (2016) LPELR-40658 (SC).

The claimant’s final written address is dated 15^th August, 2019 and filed on 16^th August, 2019, wherein Kolapo Kolade Esq appearing for himself raised one issue for determination, which is

Whether upon the facts and circumstances of this case, the claimant is entitled to the reliefs sought

The claimant submitted on behalf of himself that based on the facts and circumstances of this case, he is entitled to the reliefs sought.

It is his argument that the claims in this case were not denied by the defendants, thus they are deemed admitted and cannot be said to be in contention. He continued that an issue is only triable where the statement of defence throws a doubt on the claim and this the defendants in this case have failed to do. He cited the following cases in support of his argument; Azike v Nigerian Bottling Company (2019) All FWLR (Pt. 989) 1223 at 1236 ratio 16: UBA v Jargaba (2007) 11 NWLR (Pt. 1045) 247 at 273 and Aghando v UBN Ltd. (2002) 7 NWLR (Pt. 666) 534 at 549.

The claimant argued that the defendants admitted Exhibit LP3 against their own interest, adding that the claim in Exhibit LP3 was not denied, challenged or controverted by the defendants in their pleadings or evidence, he therefore surmised that the claimant is entitled to judgment in this suit. He cited the case of Fagbenro v Arobadi (2006) 7 NWLR (Pt. 978) 172 at 194-195.

Claimant argued that Exhibit LP3 has elevated the claim in this suit from the realm of ordinary money demand to liquidated demand, thus the amount claimed by the claimant is fixed and is not subject to any contention between the parties. He placed reliance on ATS & Sons v Ben Electronics Company Ltd. (2019) All FWLR (Pt. 986) pg. 567 at 582 ratio 13.

On the defendants’ argument that the claim is premature, claimant submitted that this holds no water because, salaries are due and payable at the end of every month and the claimant’s salaries and entitlements are not contingent upon payment of any other worker or officer of the defendant. He argued further that there is no law which sets out time to claim a debt.

Claimant submitted on the award of interest, that this is at the discretion of the court, but urged the court to exercise this discretion judicially and judiciously. He argued that the arrears of salary claimed has been outstanding since 15^th October, 2018 when he left office and had he been paid timeously, he would have made good use of the money or invested it in a profit-yielding business, consequent upon this he claimed that he is entitled to interest on the sum claimed, citing Union Bank Plc. V Awmar Properties Ltd. (2019) All FWLR (Pt. 987) pg. 903 at 908 ratio 5.

On the issue of cost, counsel contended that cost follow event. He argued that the claimant having been forced to take the long and arduous route of litigation despite the demand letters he wrote to the defendants, should be compensated with cost. He relied on Master Holding Nigeria Ltd. & Ors. v Emeka Okefiena suit no CA/E/328/2009 also cited in (2011) 6 NWLR (Pt. 1244) pg. 414 at 519 and Agidigbi v Agidigbi (1996) 6 NWLR (Pt. 454) at 300.

The claimant finally submitted that he has discharged the burden of proof placed on him based on the preponderance of the evidence adduced in this case and that he is entitled to all the reliefs sought, he urged the court to grant same.

I have well considered all the processes filed in this suit, the evidence adduced by both parties through the witnesses called and the final submissions of counsel in support of their cases. I find that having dispensed with the preliminary objection of the defendants earlier in this Judgment, a lone issue that will best determine this case to wit is:

Whether or not the claimant is entitled to the reliefs sought in this case

It is common knowledge that a person who asserts based on the existence of certain facts must proof that those facts exist, therefore the burden of proof is said to lie on such person. On this premise, the burden of proof in this case lies on the claimant. See Sections 131,132 and 133 of the Evidence Act 2011.

The claimant in pursuance of this pleaded and adduced evidence to the effect that he served under the previous administration of Ekiti State Attorney General, and that by virtue of his appointment he is entitled to his salary arrears and other entitlements, which accrued and was unpaid before he left office on the 15^th of October, 2018. He further claimed that his demands for his entitlements after he left office was to no avail, hence he instituted this action.

It is on record that the defendants did not deny the fact of their indebtedness to the claimant in their pleadings and evidence adduced before this court. The only defence offered by the defendants is that, other workers in the State have not been paid the very same entitlements, as it was the previous administration that accumulated the arrears.

The position of law is that uncontroverted facts stands admitted and need no further proof. See Section 123 of the Evidence Act and Oceanic Bank International Plc. V Broken Agro Allied Industries Ltd. (2008) LPELR-4671 CA; Seven-Up Bottling Company Plc. V Mr. Aluko Olusola Emmanuel (2013) LPELR-N 21104 CA. The defence offered by the Defendants in the instance case is at best spurious, as Government is said to be a continuum and the assertion that it was the previous administration that accumulated the indebtedness cannot exonerate the defendants from the liability to pay the arrears of accrued salaries of its workers inclusive of the claimant.

On Exhibit LP3, the defendants had argued that Exhibit LP3 was not tendered by the maker and thus lacks any probative/evidential value as it is only the maker, who can in law be cross-examined on it. The record however reveals that Exhibit LP3 was tendered by the claimant without any objection by the defendants’ counsel, added to the mix, DW1 acknowledged that Exhibit LP3 emanated from her department under cross-examination. Thus, Exhibit LP3 qualifies as a public document under Section 102 of the E.A 2011, and is admissible in law. See also, Section 146 (1) of the Evidence Act provides:

“the court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

This court is therefore based on the above provisions empowered to presume the genuineness of any public document. See UKEJE & ANOR V. UKEJE 2014 LPELR 22724 SC where it was held as follows:

“By Section 145(1) of the Evidence Act, 2004, the court should presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. See Mrs. Olajide Okelola v.Adebisi Adeleke (2004) 13 NWLR (Pt 890) 307, Cardozo v. Daniels (1986) 2 NWLR (Pt 20)1. I need to point out that Section 114 of the Evidence Act Cap E14 Laws of the Federation, 2004 is now Section 146 of the EvidenceAct, 2011.”

It is settled law that the factors to be considered in determining the probative value to be ascribed to a piece of evidence are as laid down by the Court of Appeal in the case of Okadigbo & Ors. v Ojechi & Ors. (2011) LPELR-4687 and they are: (a) admissibility, (b) relevancy, (c) credibility and (d) conclusiveness. The evidence adduced at trial is to the effect that Exhibit LP3 was written to CW1 by the defendants, this was never controverted, and as stated earlier, evidence not controverted is deemed admitted. It is also said of documentary evidence, that it is the best form of evidence, as the content of a document speaks for itself and same cannot be varied by oral evidence. See Section 128 of the Evidence Act 2011 the case of M.A. Jolugbo & Anor v Mrs. O.A. Aina &Anor (2016) LPELR-40352 (CA).

Proceeding from the above therefore, I find that Exhibit LP 3 is admissible, relevant and credible. The admission of DW1 under cross examination in acknowledging that Exhibit LP3 emanated from her department leads to the inexorable conclusion that the defendants are owing the claimant the sum claimed. Thus, the submissions of the defendants on Exhibit LP3 goes to no issue and same is therefore discountenanced.

In the light of the findings enunciated above, I hold that the claimant has proved his case based on the preponderance of evidence adduced at trial and he is consequently entitled to his accrued salaries and entitlements as sought in his reliefs.

On the issue of pre and post judgment interest captured in the reliefs of the claimant, I find that the claimant led no evidence whatsoever on the claim for pre-judgment interest. Meanwhile, it is settled law that while the court is clothed with discretion to grant or not to grant post-judgment interest, a plaintiff seeking pre-judgment interest must plead and lead evidence to prove same. See Skymit Motors Ltd. United Bank for Africa Plc. (2012) LPELR-7903 (CA); Berliet Nig. Ltd. v Kachalla (1995) 9 NWLR (Pt. 420) 478 and Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017.

In the Court of Appeal case of UBA v Oranugba (2013) LPELR-20692 Iyizoba JCA held:

“The law is that pre-judgment interest is awarded where there is an agreement for payment of interest or under mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be pleaded and proved”.

I find based on the above reasoning that the claimant has failed to prove the claim for pre-judgment interest and same is hereby refused.

In conclusion I find and hold that the claimant’s case succeeds in part and for the avoidance of doubt, I declare and order as follows;

The claimant is entitled to be paid the sum of N5,765,944.16k (Five Million, Seven Hundred and Sixty-Five Thousand, Nine Hundred and Forty-Four Naira, Sixteen Kobo only) as his accrued salaries and entitlements due from the defendants
The defendants are to pay to the claimant the sum of N5,765,944.16k (Five Million, Seven Hundred and Sixty-Five Thousand, Nine Hundred and Forty-Four Naira, Sixteen Kobo only) as his accrued salaries and entitlements.
The claim for pre-judgment interest fails.
The sum awarded in this judgment is to be paid by the defendants within 30 days from the date of this judgment, failing which the sum shall attract a 10% interest per annum.

I make no order as to cost.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge