KUFRE ESSANG -VS- PROTON SECURITY SERVICES LIMITED & ors

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: 9^th day of October, 2019

SUIT NO: NICN/PHC/135/2014

BETWEEN:

KUFRE ESSANG CLAIMANT

AND

PROTON SECURITY SERVICES LIMITED

AYOKUNLE OYEYEMI DEFENDANTS

Representations:

E.U. John with G.C. Nwagbara for the Claimant

Segun Arowoyele for the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 4^th of September, 2014 along with verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.

The suit was initially at the Yenagoa Division before Hon. Justice Agbadu-Fishim before same was transferred to this court sometime in January 2019.

Arising from the statement of claim, the Claimant is claiming jointly and severally against the Defendants the following:

a) A DECLL4RATION that the Defendants have a contractual duty to provide working tools and equipment namely an official/operational vehicle for the performance of the official functions, engagements and operations of the Claimant whether as an Operations Officer, Acting Regional Manager and Senior Operations Officer of the 1^st
b) A DECLARATION that failure by the Defendants to provide the Claimant with an official/operational vehicle for his official engagements and operations, particularly for the Claimant to visit client locations to ensure standards and compliance and generally perform other functions of his office being terms of his employment as stated in the job description accompanying his letter of appointment as Acting Regional Manager, despite repeated demands was orchestrated by the Defendants to traumatize, frustrate and bully the Claimant out as Acting Regional Manager and as Senior Operations Officer of the 1^st
c) A DECLARATION that failure by the 1^stDefendant to provide the Claimant with an official/operational vehicle for Claimant’s official engagements and operations, particularly for the Claimant to visit client locations to ensure standards and compliance and generally perform other functions of his office being terms of his employment as stated in the job description accompanying his letter of appointment despite repeated demands by the Claimant amounted to inducement of breach of contract of employment of the Claimant actuated by the 2^nd Defendant whose portfolio it was to ensure the provision of the vehicle.
d) A DECLARATION that failure by the Defendants to provide the Claimant with an official/operational vehicle for Claimant’s official engagements and operations, particularly for the Claimant to visit client locations to ensure standards and compliance and generally perform other functions of his office being terms of his employment as stated in the job description accompanying his letter of appointment despite repeated demands by the Claimant and the generation of unfriendly work environment leading to the resignation of the Claimant from the 1^stDefendant Company amounted to unfair dismissal of the Claimant by the 1^st
e) N1,008,000 being unpaid salaries, non-statutory and unjustified deductions from salaries and special damages due and owing the Claimant by the Defendants
f) N50 Million being general damages for breach of contractual duty/contract, inducement of breach and unfair dismissal of the Claimant from his employment by the Defendants.

In reaction to the foregoing claims, the Defendants entered appearance on the 28^th of January, 2015 and filed a joint statement of defence that was accompanied with a list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

On the 25^th of February, 2015, the Defendants filed an amended copy of the statement of defence and added the 1^st Defendant’s Counter Claim.

Upon receipt of the amended Statement of Defence and counter claim, Claimant on the 28^th of May, 2015 filed an amended reply to the said statement of defence and defence to the counter claim.

Trial commenced before this court on the 13^th of May, 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1 (a) and C1(b). Through the said CW1, 13 documents were tendered in evidence and admitted as exhibits C2 – C14 while exhibits C2 and C9 were admitted under protest.

Arising from the statement of claim and witness statements on oath, the case of the Claimant is that the Claimant was employed by the Defendant on the 14^th of December, 2012 as an operations officer with a job description to amongst other, patrol and visit locations at all times to ensure standards and compliance and to effectively perform the functions, he was entitled to the provision of an official vehicle which was the duty of the 2^nd Defendant to provide but failed to do. Claimant added that in order to prevent systemic break down, he put his private car, a Liberty Sport Jeep to use with approval of the Regional Manager who provided N3000 per week for fueling the car. The Regional Manager resigned and the Claimant became the Acting Regional Manager which was with more elaborate job description. Claimant further averred that he again deployed his car for the performance of the functions of his new office and drew N8000 for fuel per week. He added that the 2^nd Defendant paid a visit to the Regional Office and requested the cost of the repairs of an abandoned Kia Rio that was previously used by the erstwhile Regional Manager. He generated an email and forwarded a pro forma invoice to the 2^nd Defendant and other management officers but same was not replied. On 31^st January 2014 he reminded the 2^nd Defendant of the said repair and also notified him of monies spent on his personal car due for reimbursement. He added that on the 6^th of February, 2014, when he went on an official trip to Owerri, his car had a major mechanical breakdown. He informed the Managing Director who did nothing until February 26^th, 2014 when he called and on the same day replied and grudgingly approved the sum of N50, 000 which was grossly inadequate for the recovery and repairs of the Claimant’s car and raised issues regarding the abandoned Kia Rio. Claimant further averred that a new Regional Manager was appointed and while he was taking the said New Regional Manager to Uyo for a contract, his car engine knocked. He added that soon after the New Regional Manager took over office, he gave him a task which made him (the Claimant) remind the Regional Manager of the challenges of official car. He added that the Regional Manager also failed to report the loss of the Claimant’s car engine and did nothing but referred him to the 2^nd Defendant. Claimant also posited that he was queried by the Regional Manager after attending a meeting with the Permanent Secretary and Commissioner, Ministry of Education, Rivers State but could not reply within 24hrs due to a trip to Uyo and a follow up meeting with the Ministry of Education. He averred that upon eventually replying, he was issued another one and then a warning letter demoting him to the position of Operations officer. Claimant averred that due to the pressure and looming dismissal, he resigned from the employment of the 1^st Defendant on the 9^th of July, 2014 with effect from 23^rd of July, 2014 in accordance with the Defendant’s terms of employment and upon which he demanded for his entitlements which was not heeded by the Defendants.

Upon cross examination of CW1, he posited that his contention was that he was not provided with official vehicle but same is not provided in Exhibit C2 and C4 and neither is it stated that he should use his personal car. He posited that the company was aware through mails that he was using his car for official duty. He added that his employment was confirmed and he posited that he collects transport and out of station allowances. He also admitted that he resigned voluntarily and same was a hurried one without notice but he went through the exit procedure and returned the I.D. Card and Uniform while the laptop was stolen in Owerri. He posited that he had a PFA and monies were deducted. He also stated that his witness statements on oath were signed in his lawyer’s office.

Upon the discharge of CW1, the Claimant closed his case while the Defendants opened theirs by calling one witness in person of Onyemaechi Chigbu as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 4 documents were tendered and admitted in evidence as Exhibit D2- D5.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that while the Claimant was employed as Operations Officer with annual remuneration of N960,000, out of the said sum, N148,468:16k was his transportation allowance. Defendant further averred that the Claimant collects out of station allowances and money for internal mobility for each place visited and there was no agreement whatsoever for the provision of vehicle for carrying out his operations. The Defendant added that though Claimant was made Acting Regional Manager, there was no agreement that Claimant would be provided with a vehicle. The Defendant also averred that the Claimant failed to go through the Staff exit clearance procedure and that he is still in possession of the company’s laptop, C.U.G handset, training manual, uniform and other company material and that the Claimant is not entitled to July salary having failed to provide one month notice of termination/resignation of his employment. The Defendant added that apart from giving inadequate notice, the Claimant ceased reporting to duty from the 9^th of July, 2014 when he submitted the letter of resignation while the pension deduction were not remitted as the Claimant failed to provide the name of his Pension Fund Administrator (PFA) and Pension Identification Number (PIN). The Defendant considers the suit to be frivolous and gold digging.

Upon cross examination of DW1, he posited that it is not stated in Exhibit C2 that his (Claimant’s) transport allowance should be used to travel to different states. He admitted that as Regional manager, the Claimant was in charge of south east and covers the areas listed in C14. He posited that the office of Regional Manager had an official car attached to it. He admitted that item no.1 on the list is an order from the Managing Director. He also admitted that it was expected that the Claimant would use the official car to go to states enumerated and that the car was not put in order till the Claimant resigned. He denied being in the knowledge of the Claimant negotiating a contract at Uyo at the time he was queried. He claimed he was not aware of Exhibit C14 and did not work to get the Claimant out of office.

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 1^stof July, 2019 and arising therefrom, counsel to the Defendants Segun Arowoyele Esq. formulated 5 issues for determination to wit:

Whether the Claimant has any evidence before this honorable court to ground the reliefs sought in this court.
Whether the Claimant is entitled to the declaratory reliefs in paragraphs 46 (a), (b), (c) and (d) of the statement of facts in this issue.
Whether the Claimant is entitled to the sun of N1,008,000.00 being unpaid salaries, non-statutory and unjustified deductions from salaries and special damages due and owing the Claimant by the 1^st Defendant.
Whether the Claimant is entitled to N50,000,000 or any sum at all as general damages for breach of contractual duty/contract, inducement of breach and unfair dismissal of the Claimant from his employment.
Whether the 1^st Defendant/Counter-Claimant is entitled to the reliefs sought in the counterclaim

In arguing issue one, Counsel posited that in any adjudication in a court of law, parties must rely on evidence to prove their case. He cited Order 3 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and argued that a written statement on oath is the evidence on which a party relies in court to establish his case or his answers to opponent’s case as required by the order.

Counsel contended that the provision of the Rules has become statutory, as the rules of court has ascribed proof to the Evidence Act. He cited section 205 of the Evidence Act 2011.

Counsel also added that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Cap 333 Laws of the Federation of Nigeria 2004.

Counsel then contended that in the case at hand, the evidence of the Claimant is conceived in 2 (two) Witness Statements on Oath respectively dated 4^th September 2014 and 5^th February 2015 which were admitted in evidence before this court as EXHIBITS C1 A & B do not contain any words of swearing. He added that the two statements on oath are not valid in law and cannot be used by this court to ground the reliefs claimed or sought because any valid oath must be in the form prescribed by section 13 of the Oaths Act Laws of the Federation of Nigeria 2004. He cited the case of GUARANTY TRUST BANK (GTB) PLC V BARRISTER AJIBOYE AYODEJI ABIODUN, (2017) LPELR42551 (CA)

Counsel added that CW1 during cross examination unequivocally and stunningly declared that he signed Exhibits C1A and C1B in his lawyer’s office. He contended thereon that where an affidavit or sworn statements are sworn before a person not duly authorised to take the oath, such sworn document violates S. 113 of the EA 2011 and is invalid. He added that according to the Oaths Act, the Commissioner for Oaths are prescribed bodies made to administer oaths and take affidavits as specified by statute and any Oath administered contrary to the provision of the Act contravenes the law and such document cannot qualify as a sworn document to be used in any court of law.

Counsel further argued that when a deponent swears to an oath, he signs in the presence of the Commissioner for Oath who endorses the document authenticating the signature of the deponent and that signatures signed outside the presence of the Commissioner for Oaths falls short of the requirement of the statute and such document purported to be sworn before Commissioner for Oath is not legally acceptable in court.

Counsel cited the case of Buhari v. INEC 2009 All FWLR (pt. 459) 419 and submitted that the Claimant’s witness, Mr. Kufre Essang, does not have Statement(s) on Oath before the court which his entire examination-in-chief and cross-examination together with Exhibits tendered through/by him can be predicated upon in law and the court is therefore invited to hold that the Claimant has not offered any testimony/evidence on which this court can rely to ground its reliefs.

With regards to issue two, counsel adopted the arguments on issue one and submitted further that declaratory reliefs are not granted as a matter of course and that before a party is entitled to a declaratory relief, he must plead sufficient facts and lead or proffer cogent and c redible evidence to sustain such relief. He cited the case of NIPOST V. MUSA (2013) LPELR — 20780(A) Ige JCA P.35 paras D-F.

Counsel posited that whereas, it is the law that where the terms of an employment are written, the parties are bound by the agreement. He submitted that in construing exhibits C2 and C4, this Honourable court is not permitted by law to go outside the four walls of the exhibits. He cited the case of Osumah V EBS (2004) 17 NWLR (Pt. 902) @ pg. 332.

Counsel posited further that the Claimant frontloaded some electronic mails which he intended to rely upon to show that the 1^st Defendant approved the use of his personal car for official duties. He added that during trial, the E-mails which are computer generated documents were tendered in evidence without laying any foundation for its admissibility and no certificate of authentication was provided in line with section 84(4) of the E.A 2011.

Counsel urged the court to expunge the exhibits and by so doing, the court should resolve that the Claimant has not offered any evidence for the declaratory reliefs sought.

With regards to issue three, counsel posited that going by the Claimant’s contract with the 1^st Defendant, all he is entitled to is transportation allowance but he was still being paid out of station allowances whenever he works outside Rivers state. Counsel posited that the Claimant agreed during cross examination that he collects out of station allowance whenever he travels out of Rivers State

Counsel referred to paragraph 6 of the Statement of fact and contended that Claimant did not tender any approval before this Honourable Court while Exhibit D3 shows that the Claimant did not get the Defendant’s approval before using his personal car for official purposes. He added that the claims being in the nature of special damages have to be strictly proved.

He further contended that the burden to specially plead and strictly prove special damages is on the party that claims it and in the present case, the Claimant claims N73,000.0O as out of pocket expenses as sought in the Statement of Facts without specially pleading same with utmost particularity and strictly proving it by credible evidence. He cited the case of Nitel v Oshodin (1999) 8 NWLR PT 616 @ Pg 542.

With regards to unexplained deductions, counsel posited that the 1^st Defendant is not responsible for payment of the claimant’s pension but rather his Pension Fund Administrator because the law and practice on pensions in Nigeria at all times material to this action is guided by the PENSIONS REFORM ACT, 2014, which in effect provides for the establishment of a contributory pension scheme for all employees in organizations in the private sector having more than 5 (five) employees; deductions of 8% employee’s contribution and 10% employer’s contribution are remitted into the employee’s Retirement Savings Account (RSA) account with his designated Pensions Fund Administrator (PFA), from which account withdrawals are required by the employee under strict guidelines provided for by the Act.

With regards to claim for July salary, counsel posited that the Claimant is not entitled to July 2014 salary because the Claimant tendered his resignation letter dated 09/07/2014 Exhibit C13 to take effect from 23/07/2014. He added that the Defendants in their evidence maintain that immediately the Claimant tendered his resignation letter on the 09/07/2014, he stopped coming to work and this piece of evidence was not contradicted by the Claimant either in his Amended Reply or during trial.

With regards to issue four, counsel posited that general damages is defined as the kind of damages which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstances of a case, in the absence of any yard-stick with which to assess the award except by presuming the ordinary expectations of a reasonable man. He added that general damages may be awarded to assuage such a loss which flows naturally from the Defendant’s act. He cited the case of F.M.F. LTD V. EKPO (2004) 2 NWLR PT 856 PG 100 AT PG 109.

Counsel then posited that it is not in doubt that the Claimant’s case is based mainly on Breach of contract. But the law does not allow general damages to be claimed in an action for breach of contract. It is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract that can be awarded.

Counsel also submitted that this head of claim must fail because the measure of damages in an action for breach of contract is in terms of the loss which is reasonably within the contemplation of the parties at the time of the contract and not general damages. He cited the case of G. Chitex Industries Ltd v Oceanic Bank International Ltd (2005) LPELR-1293(SC).

With regards to unfair dismissal, counsel posited that the facts and circumstances of the case at hand do not support the relief of unfair dismissal and nothing calls for this relief in this case as unfair dismissal is an employment situation where an employee is dismissed from his/her role, without a reason or reasons not connected with the work of the employee or his capacity.

Counsel stated that in the instant case, the Claimant resigned voluntarily. He also contended that it is not in question that inducement of breach of contract is a tortious liability and urged the court to refuse the claim of general damages for the claim of tort of inducement breach of contract.

With regards to issue five counsel posited that the 1^st Defendant had posited that it shall contend that the Claimant is not entitled to N84,869.26 July 2014 salary because he didn’t give one month notice of termination/resignation of his employment or make payment of one month basic salary in lieu as required by his letter of employment dated 14^th December 2012.

Counsel submitted that the averment was not controverted by the Claimant in this case and that it is not contested that the Claimant’s appointment was confirmed via Exhibit D2 and also beyond contest that he resigned voluntarily from the 1^st Defendant’s employment via Exhibit C13.

Counsel added that whereas it is the law that resignation must be in line with the terms of employment, Exhibits C2 and C4 constitute the contract of employment in the present case and Exhibit C2 provides that After confirmation, one month notice will be required or payment in lieu based on current salary.

Counsel contended that Claimant tendered his resignation letter dated 09/07/2014 Exhibit C13 to take effect from 23/07/2014 and the computation of days from 09/07/2014 to 23/07/2014 is only 14 ways which falls short of the required length of Notice provided for by Exhibit C2

He added that it is also noteworthy that there is no evidence before the court that the Claimant paid any amount in lieu of notice.

Counsel concluded by urging the court to hold that the 1st Defendant is entitled to the relief contained its counterclaim.

On the whole, counsel urged the court to dismiss this claim in its entirety on the ground that it is frivolous, mischievous and gold- digging and grant the 1^st Defendant’s Counterclaim.

Upon being served with the Defendant’s final address, the Claimant failed to file his final address and was consequently foreclosed.

In view of all the foregoing, I have carefully evaluated and understood 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 carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to the Defendant through the Defendant’s final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the said final written addresses of the Defendant, the issues for determination by this court are to wit:

Whether or not the Claimant has placed any evidence before the court in support of his case in view of the admission of the CW1 that his witness statements on oath were signed in the office of his lawyer.
Whether or not in view of the evidence before the court, the Claimant is entitled to the reliefs sought.

In addressing issue one, I must start by stating that the issue is formulated in view of the issue formulated by counsel to the Defendant in relation to the evidence before the court and also in view of the fact that the Claims made by the Claimant are largely declaratory reliefs and special damages.

For want of clarity, Counsel to the Defendant had contended that the Claimant has failed to comply with the rule of this court which requires a complaint to be accompanied by a written statement on oath and that it is on the said witness statement on oath that a party places reliance to establish his case and that since the witness statement on oath bears no statement of swearing, it is defective and that in view of same not been signed before a person authorized to take oath, it is invalid, should be expunged and the consequence of same is that there is no evidence before the court to ground the reliefs of the Claimant.

In considering the foregoing contention, I must posit that the contention is a matter of law and same shall be duly considered in that light not minding the fact that the counsel to the Claimant has no address before the court in that regard.

That said, I have paid particular attention to the provisions of the law cited by counsel to the Defendant. Foremost is the provision of Order 3 Rule 9 of the Rules of this Court which provides thus:

The Complaint shall be accompanied by:

(a) a statement of facts establishing the cause of action ;

(b) a list of witnesses to be called ;

(d) a list and number of copies of documents and other exhibits to be tendered at the trial.

The foregoing provision clearly shows that indeed the Claimant is expected to mandatorily file a witness statement on oath and I must state that the Claimant complied with the said provision in view of the two witness statements on oaths filed before this court on the 4^th of September, 2014 and 22^nd of October, 2015 which were respectively marked as C1 (a) and C1(b).

The next question therefore is whether the said witness statements on oath are invalid for non-compliance with the format stated in the Oaths Act.

In addressing the question, I reckon that Counsel to the Defendant cited section 13 of the Oaths Act which provides thus:

“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths, take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule “

The said 1^st schedule then states the statutory declaration which usually begins and concludes the statement on oath/affidavit as follows:

“I………… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act”.

Counsel to the Defendant in the instant case contends that the witness statements on oath marked as C1(a) and C1(b) do not comply with the said format in the schedule of the Oath Act.

Upon the foregoing contention, I must foremost correct that counsel to the Defendant had referred to C1(b) as the statement filed on the 5^th of February, 2015 while the statement adopted before this court as C1(b) was that filed on the 22^nd of October, 2015. That said, I have had to take a look at the said witness statements on oath and found that that which was filed on the 4^th of September, 2014 marked as C1(a) and that filed on the 22^nd of October,2015 marked as C1(b) bears no concluding paragraphs stating that “I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act”. Although they both commenced with the paragraph stating that “I, Kufre Essang…do make oath and state/say as follows”.

The foregoing non-compliance with the stated format in the Oath Act may be regarded as a technicality as it is predicated on form rather than substance. That notwithstanding, the question that arises is what is the implication of non-compliance with the said form? The Appellate courts have had to deal with similar cases and arrived at conflicting decisions. In certain instance the Court of Appeal had decided that the non-compliance with the provision is vital. The court in NKEIRUKA v. JOSEPH & ORS (2008) LPELR-4625(CA) held that:

A valid Oath must be in the form of the Oath Act. The form Section 13 of the Oath Act must take is to be found in the 1st Schedule “I do solemnly and sincerely declare…..” Any written statement which does not bear the 1st Schedule to Section 13 of the Oath Act, cannot be said to be a written statement on Oath. It is only when the declaration of the Oath is made that the identity of the maker of the statement can be ascertained. It also serves as to the verification as truth of the statement made therein. Per BAGE, J.C.A. (Pp. 25-26, paras. A-G).

In the following year, the same Court of Appeal posited that there is no necessity in usage of the exact wordings of the Oath Act as the court in the case of CHUKWUMA v. NWOYE & ORS (2009) LPELR-4997(CA) held that:

“There is no doubt that the swearing or taking oath on a written statement by a witness does not have to be in the exact wordings of the Oaths Act. But it clearly must contain swearing to God or a revered person or thing or an affirmation.” Per ARIWOOLA, J.C.A (P. 36, paras. B-C)

The effect of the latter decision on the instant case is that this court can reckon the statement on oath before this court as valid having been regarded as oath based on the opening paragraph. However, the instant case is distinguishable from that of Chukwuma’s case decided by the Court of Appeal as the instant case dwells more with the absence of the concluding paragraph.

A more poignant decision was cited by counsel to the Defendant i.e. the case of GUARANTY TRUST BANK PLC V ABIODUN (2017) LPELR 42551 (C.A.) and I have taken due cognizance of same and found that the case is on all fours with the instant one. In that case, the issue was that the witness statement on oath and further statement on oath were concluded with the respective paragraphs stating that:

“That I swear to this affidavit in truth and in good faith” and

“and that I swear to this affidavit in truth and in good faith”

Upon the argument raised by the Appellant in the said case, that the paragraphs were not in compliance with the Oaths Act, the Court of Appeal held to the effect that section 13 of the Oaths Act is mandatory and failure to comply is not a mere irregularity that can be waived and substantial compliance will not suffice.

Having stated the current position of the law, what then is the implication of the foregoing authority on this court in the instant case. The simple answer is that the said decision is binding on this court and this court has no option than to dutifully abide by the said decision. The principle of stare decisis is sacrosanct such that the lower court cannot depart from the decision of an appellate court even where the lower court does not agree with the decision of the appellate court. This was restated by the court in the case of OGUNDAHUNSI & ORS v. OLOWOOKERE & ORS (2013) LPELR-22149(CA) where the court held that:

“The duty of a Lower Court is to apply the ratio decidendi of a case decided by an appellate or Higher Court whether it agrees with it or not. A Lower Court can only avoid the decision of a High Court where it is possible to distinguish the case from the case the Lower Court is dealing with. It is the principle of law upon which a particular case is decided that is binding… See: NAB v. BARZI ENGINEERING (NIG.) LTD (1995) 8 NWLR (Pt. 413) 257, DALHATU v. TURAKI (2003) 15 NWLR (Pt. 843) 310.” Per GALINJE, J.C.A. (P. 17, paras. B-F).

The foregoing position is extended to the fact that the lower court is bound by the latest decision of the appellate court where there are conflicting decisions. In DARU & ORS v. UMAR (2013) LPELR-21905(CA) the Court of Appeal posited that:

“…It is now settled that where there are two conflicting judgments of this court, the lower court or courts, is or are bound by the latter decision and must follow and apply it. See the case of Chief Okpozo V Bendel Newspaper Corporation & Anor. (1990) 5 NWLR (Pt. 153) 652 @ 661, 663 C.A.” Per IGE, J.C.A.(P. 55, paras. D-E).

In the instant case, the decision of the court delivered in 2017 as in the case of GUARANTY TRUST BANK PLC V ABIODUN (supra) is without a doubt later in time and comes within the frame of the instant case. Therefore same is binding on this court and this court is obligated to follow same. The implication of abiding by the said decision is that the witness statement on oath marked as C1(a) and (1(b) are to be considered as bare declarations without effect and I so hold.

Furthermore on the status of the witness statements on oath marked as C1(a) and C1(b), counsel to the Defendant contended that same were signed in the office of the CW1’s lawyer and that negates the provisions of sections 112 and 113 of the Evidence Act and therefore illegal. Counsel referred the court to the testimony of the CW1 before the court and also cited the case of Buhari v INEC (supra).

In view of the foregoing contention, I have taken a look at the record of the court on the 17^th of June, 2019 when CW1 was cross examined. He indeed admitted that the witness statements on oath marked as C1(a) and C1(b) were signed in his lawyer’s office. It is upon the foregoing that I reproduce the provision of section 112 and 113 of the Evidence Act 2011:

An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.
The court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorised.

The emphasis arising from the foregoing is that an affidavit must be sworn before a person duly authorized.

The question that necessarily follows is what is the implication of having signed the said witness statement on oath in the lawyer’s office. To answer the foregoing question, I must state that earlier position of some decisions of the Court of Appeal made a distinction between witness statement on oath and affidavit generally and consequently reckoned that a witness statement on oath which is adopted before court is cured of all defects. This earlier position of the law was stated in the case of UDUMA V. ARUNSI & ORS (2010) LPELR-9133(CA) where his Lordship, Per OGUNWUMIJU, J.C.A held that:

“I am minded to go a step further and to make a distinction between affidavit evidence in procedure begun by originating summons as against statement of witnesses on oath at an election proceeding or proceedings begun by writ and to say that in respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in court before the judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination. See the case of UDEAGHA v. OMEGARA CA/PH/EPT/173/2008 unreported delivered on 30th March, 2010.”Per OGUNWUMIJU, J.C.A.(P. 31, paras. B-E).

His Lordship has however taken cognizance of the decision of the Supreme Court in the case of Buhari v INEC (Supra) and consequently changed his position. The change in the position was captured in the most recent case of ALIYU vs. BULAKI (2019)LPELR-46513(CA) where the court extensively addressed the effect of a written statement on oath sworn to in the chambers of the legal practitioner for a party. The court in the said recent decision analysed the provisions of sections 112 and 117(4) of the Evidence Act and posited that:

“The combined effect of Sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs, Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides: “No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested.” Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public, the clear message is that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath. This is so because a deponent’s legal practitioner is a person interested in the proceedings and therefore disqualified from Notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a Notary public, being legal practitioner representing the Respondent in the suit, is precluded from notarizing any document for the Respondent for use in the case. Additionally oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath. It includes most importantly, compliance with Section 5 (1) (a) &(b) of the Oaths Act which requires the person taking the oath if a Muslim, to place both hands on a copy of the Holy Qur’an, if a Christian, to hold in his right hand a copy of the Holy Bible or of the New Testament and if a Jew, to hold in his uplifted hand a copy of the Old Testament and to then repeat after the person administering the oath, the prescribed words. It is after this has taken place, that the commissioner for Oaths verifies the contents and then confirms that same was signed in his presence by endorsing his own signature to that effect. Therefore for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE VS. SPDC (NIG.) LTD. (2008) 9 NWLR (Pt. 1093) 593; MARAYA PLASTICS LTD. VS. INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109.” Per WAMBAI, JCA.(Pp.12-26,Paras.C-F).

The learned Justice continued by referring to the case of EROKWU VS. EROKWU (2016) LPELR 41515 (CA) where the change in position was made by Ogunwumiju J.C.A. his Lordship posited that:

“I consider any distinction drawn or attempted to be drawn between the effect of a defect in signing a deposition and swearing an affidavit a mere red herring. It is little wonder therefore that the Court per OGUNWUNMIJU, JCA held thus: I had hitherto been of the view that where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses statements of which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are subjected to cross examination. That it is such affidavit evidence which does not meet the requirement of Section 112 of the Evidence Act that are intrinsically inadmissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in BUHARI VS. INEC (2008) 12 SCNJ 1 AT 91. In that case, the Supreme Court agreed with the Court of appeal decision to strike out witnesses deposition sworn before a notary Public who was also counsel in the chambers of the senior counsel to the appellant which was in violation of Section 19 of the Notaries Public Act and 83 of the Evidence Act now (section 112).” Per WAMBAI, JCA.(Pp.12-26,Paras.C-F).

The court upon the foregoing exposition concluded that the witness statement on oath signed before the legal practitioner of a party must be rejected, and if already admitted must be expunged.

His Lordship also reckoned the argument that to expunge the said witness statement on oath will amount to technicality but discountenanced same on the ground that the Court is bound by the decision of the Supreme Court in INEC v Buhari (Supra). His Lordship held that:

“Unarguably, the hey days of technicalities are gone. However that dictum or should I say, that slogan has to be put and understood in its right perspective. Where a matter has been settled by the apex Court, on what ground will this Court or any subordinate Court stand to decide otherwise? This Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to gross judicial impertinence which this Court should not and cannot dare. The learned respondent’s counsel has not made a case that the decision in the case of BUHARI VS. INEC (supra) has been overruled by a later decision of the same Court. He has not and cannot successfully make a case why I should depart from or disobey the decision in BUHARI VS. INEC and were such a case to be made by the learned counsel in the absence of any decision of the same apex Court to the contrary, I will, in obedience to the said decision in BUHARI’S case, gladly disobey the learned counsel. In the circumstance, I am bound by the decision in the BUHARI VS. INEC’S case (supra) and to act as was therein sanctioned”. Per WAMBAI, JCA.(Pp.12-26,Paras.C-F).

The effect of the foregoing authority on the instant case is that the witness statements on oath marked before this court as C1(a) and C1(b) which were signed before the legal practitioner of the deponent is invalid having violated the provisions of section 112 and 117(4) of the Evidence Act and the implication is that the said witness statements on oath are accordingly expunged from the record of the court as this court is bound by the decision of the Court of Appeal in the recent case of ALIYU vs. BULAKI (supra) and the earlier Supreme Court decision in Buhari v INEC (supra).

Having expunged the said witness statements on oath, the question that arises is whether there is any evidence before the court to support the case of the Claimant in view of the status of the witness statements on oath that have been expunged. In answering the said question I must state that the only witness called in support of the Claimant’s case is the CW1 which is the Claimant himself and it is through him that all the documents referred to in his two witness statements on oath were tendered and admitted in support of his case.

The Court in the case of Aliyu v Bulaki (Supra) also addressed the effect of evidence based on a fundamentally defective statement on oath and held that:

“A witness shall only testify by adoption of his earlier written deposition which must be duly sworn in accordance with the Evidence Act. It is upon such duly sworn and adopted deposition that he shall be led in oral evidence in chief, be cross – examined by the adverse party and re-examined by the party calling him if necessary. His evidence in chief shall be limited only to confirming his written deposition and tendering in evidence all documents or exhibits referred to in the deposition. Any evidence outside his deposition shall not be allowed. In other words, the only evidence the Court is entitled to receive into its record is the evidence contained in the duly sworn written depositions front loaded along with the pleadings, (be it the statement of claim or the statement of defence and) which deposition becomes evidence only upon adoption and subjugation to cross-examination. A written deposition that is not adopted or cannot legally be adopted is deemed abandoned and the deponent incapacitated from testifying. It follows that any evidence sourced from a fundamentally defective deposition, as in the case at hand, is equally fundamentally inadmissible and cannot be relied upon in proof of any fact. Such evidence goes to no issue because as the legal maxim goes “ex nihilio nihil fit” from nothing comes nothing, the evidence cannot be placed on nothing. As expressed in the very famous case of UAC VS. MACFOY (1962) AC 152, something cannot be placed on nothing and be expected to stand. It will collapse and crumble.” Per WAMBAI, JCA.(Pp.37-40,Paras.F-A).

In view of the foregoing authority, there is no gainsaying that the irresistible conclusion to be reached is that the evidence sourced from the fundamentally defective depositions of CW1 i.e. C1(a) and C1(b), in the case at hand, is equally fundamentally inadmissible and cannot be relied upon in proof of any fact pleaded by the Claimant. In other words, the evidence placed before this court by the Claimant is inadmissible and cannot be relied upon by this court and is consequently expunged.

In view of the foregoing, issue one is resolved in favour of the Defendant to the effect the Claimant has not placed any evidence before the court in support of his case in view of the admission of the CW1 that his witness statements on oath were signed in the office of his lawyer.

I then turn to issue two which is whether or not in view of the evidence before the court, the Claimant is entitled to the reliefs sought.

In resolving this issue, I must posit that the Claimant seeks four declaratory reliefs upon which he predicates his claim for special damages in the sum of N1,008,000 and general damages in the sum of N50, 000.000.

With regards to declaratory reliefs, there is no doubt that the Claimant can only earn same upon placing before the court credible, cogent and convincing evidence in proof of his claims and the success of the Claimant’s case is dependent on the strength of his case but not the weakness of the case of the Defendant. In this regard, the court in the case of NZURIKE v. OBIOHA & ANOR. (2011) LPELR-4661(CA ) held that:

“When a declaratory relief is sought, it is to make the court declare as established a legal and factual state of affairs in respect of the cause of action. Thus the courts will not readily without good and sufficient evidence exercise its discretion to grant a declaratory order. That is why declaratory reliefs cannot be granted without oral evidence even where the Defendant expressly admits liability in the pleadings. See A.G. CROSS RIVER v. A.G. FEDERATION (2005) 6 SCNJ 152; OGOLO v. OGOLO (2006) 2 SCNJ 235.” Per OGUNWUMIJU, J.C.A. (P. 35, paras. E-G).

In addition to the foregoing, the court in the case of BABATOLA V. ADEWUMI (2011) LPELR-3945(CA) posited that:

“It should be noted that in a declaratory action, the burden is on the claimant to lead credible evidence to show that he is entitled to the declaration sought. He has to succeed on the strength of his own case, and not on the weakness of the defence, even where there is an admission by the defendant. This is because, declaratory judgments are not awarded on admissions but on the evidence of the claimant. In other words, courts do not grant declaratory reliefs either in default of defence or admissions, without hearing evidence and being satisfied by such evidence. This position is an exception to the rule that facts admitted need no proof. See NKWOGHA V OFURUM (2002) 5 NWLR (PT.761) P.506 at PP.524 – 525: MOTUNWASE V SORUNGBE (1988) 4 NWLR (PT.92) P.90: SALAU & ORS V PARAKOYI (2001) 1 NWLR (PT.695) P.446 at P.456 Per Galadima; J.C.A (as he then was); BELLO V EWEKA (1981) 1 S.C. P.107: A.G FEDERATION V AJAYI (2000) 12 NWLR (PT.682) P.509 and MAJA V SAMOURIS (2002) 7 NWLR (PT.765) P.78 at P.101.” Per TSAMMANI, J.C.A. (P. 44, paras. A-E).

With respect to special damages, the court in NEKA BBB MANUFACTURING CO . LTD V AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 held that:

“Where the claimant specifically alleges that he suffered special damages, he must perforce prove it. The method of proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable so that the opposing party and the Court will see and appreciate the nature of special damages suffered and being claimed.”

General damages on its part is not required of strict proof as the court in the case of OWENA MASS TRANSPORTATION COMPANY LTD. V. IMAFIDON held that:

“General damages flow naturally from the wrongful act of a defendant complained of. To succeed a claimant is not required to strictly prove general damages as in the case of special damages. See THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra) at 470, para. C.

In the instant case, the Defendant has not admitted any of the claims of the Claimant and even where there is such admission, it is the position of the law in relation to claim of declaratory reliefs and special damages that the Claimant is not entitled to the reliefs claimed on the basis of such admission.

With regards to general damages which is dependent on whether the Claimant had been wronged by the Defendant, there is no gainsaying that the Claimant has failed to prove that he was wronged by the Defendant with regards to failure to provide official vehicle and forcing him to use his private vehicle and neither is there proof that he was induced to breach his contract of employment.

It is in view of the foregoing authorities that I must state without much ado that the Claimant has not placed any evidence whatsoever before this court to be entitled to the declaratory reliefs, the special damages and general damages sought due to dearth of proof.

Consequently, relief two is resolved in favour of the Defendant and against the Claimant to the effect that in view of lack of proof, the Claimant is not entitled to the reliefs sought.

In the final analysis, the Claimant has failed to prove his claim and consequently lack basis upon which same can be entertained and is accordingly dismissed.

Judgment is accordingly entered with respect to the Substantive suit.

I make no order as to cost.

I then turn to the counter claim of the Defendant which is for:

“AN ORDER for the payment of sum N84,869,26 (Eighty Four Thousand, Eight Hundred and Sixty Nine Naira and Twenty Six Kobo) against the Defendant to the counterclaim being the sum payable to the 1^st Defendant counterclaimant as payment in lieu of one month Notice of resignation by the Defendant to counterclaim”

In addressing the foregoing counterclaim, I must state that the Counterclaim is an independent claim which survives the substantive suit. 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”

In view of the foregoing, it is incumbent upon the Defendant/Counter-Claimant to prove the claim made against the Claimant/Defendant. The facts upon which the claim is made is as captured in the statement of defence and witness statement of the DW1 called in defence of the substantive suit and the highlight of same is that the Claimant resigned from the employment of the Defendant on the 9^th of April, 2014 with the intention of the resignation taking effect on the 23^rd of April, 2014. The Defendant contended that the Claimant was a confirmed staff and ought to have given one month notice or pay salary in lieu of the notice but he failed to do so and he stopped work on the 9^th of April, 2014. The Defendant contended that there is no evidence before the court to show that the Claimant paid the salary in lieu of notice.

The Claimant on the other hand had posited that he resigned from the said employment of the Defendant by issuing a letter of resignation on the 9^th of April, 2014 to take effect on the 23^rd of April, 2014. He however admitted during cross examination that he did not give notice as the resignation was a hurriedly done.

It is in view of the forgoing that the determination of the counter claim is dependent on a sole issue formulated to wit:

Whether or not in view of the evidence before this court, the Defendant is entitled to the Counter-Claim.

It must be stated in resolution of the sole issue that the Defendant is burdened with the responsibility of proving the said counter claim being an independent claim. In this regard, the court held in the case of AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) 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 attempt to discharge the burden of proof, the Defendant/Counter Claimant tendered exhibits D2 which is the confirmation of the Claimant’s appointment dated the 2^nd of May, 2014; exhibit D3 and D4 which are email correspondence between the Claimant and the Defendant in relation to use of official car and exhibit D5 which is a letter dated the 29^th of August 2015 addressed to the law firm of the lawyers representing the Claimant.

In view of the foregoing, I must posit that what the Defendant/Counter Claimant is claiming for, being a definite sum of N84,869.26 as salary in lieu of notice falls within the realm of special damages which requires strict prove and which is not granted without such proof even where there is an admission. For sake of emphasis, I reiterate that the court in the case of NEKA BBB MANUFACTURING CO . LTD V AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 held that:

In addition, it is the law that where an employee complains of wrongful termination of employment, he is burdened with proof of same by tendering the terms of the employment and proof of how the said term was breached. See Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt.642), pg. 599 where the court held that:

“The law is well settled that when an employee complains that his employment has been wrongfully terminated, that employee has the onus: (a) to place before the court the terms and conditions of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The term of contract of service is the bedrock of any case where the issue of wrongful termination of employment calls for determination:- Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356; Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412. Per OBADINA, J.C.A.(Pp. 32-33, paras. C-D)

I must add therefore that the converse of the foregoing position of the law is that where an employer complains of wrongful termination of employment by the employee as in the instant case, the employer is burdened to prove the terms and how the terms were breached.

Consequently, the Defendant in the instance of this Counter Claim being the Claimant, is therefore expected to prove:

The terms of employment/letter of offer of employment where the period of notice is stated to be one month or one month salary in lieu of notice;
The salary of the Claimant through his letter of employment or any means by which the Claimant had been paid such sum as salary to prove the amount which the Claimant ought to have paid to the Defendant as salary in lieu of notice; and

iii. The resignation letter of the Claimant which indicates that the Claimant failed to give the requisite notice as stated in the terms and condition of employment which would amount to a breach of the said terms.

Upon evaluation of the exhibits admitted through DW1 as witness for the Defendant, I find that Exhibit D2 which is a letter of confirmation of appointment dated the 2^nd of May, 2014 does not state the period of notice to be given by the Claimant in the event of termination. Exhibit D5 which is a letter written by the Defendant to the law firm of lawyers representing the Claimant in paragraph one states to the effect that the Claimant was a confirmed staff who ought to give one month notice in accordance with his letter of employment and that the Claimant resigned first with immediate effect but later changed it to a letter giving notice to resign effective from 23^rd day of April, 2014. The said exhibit D5 does not have attached to it the letter of employment to ascertain what the let.er of employment truly says. This in order words means that there is no proof before the court to establish the terms of employment as the other two exhibits are also not related to the terms of employment of the Claimant.

I must state that I am not oblivious of the contention of counsel to the Defendant who argued that the resignation of the Claimant ought to be in accordance with the terms of employment which are contained in exhibits C2 and C4 and that exhibit C13 which is the letter of resignation failed to comply with exhibits C2 and C4. However, I must remind counsel to the Defendant that the foregoing exhibits are exhibits tendered by the Claimant which he, counsel to the Defendant, had earlier urged the court to expunge along with every other exhibit admitted through the Claimant as CW1. Upon the contention, the said exhibits were duly expunged by this court pursuant to the position of the law that every piece of evidence admitted through a defective witness statement on oath are bound to be expunged.

Consequently, the Defendant/Counter-claimant cannot place reliance on such expunged Exhibits as you cannot place something on nothing and expect it to stand. See UAC v. McFoy (1962) AC 152 @ 160.

In other words, the Defendant/counter-claimant has failed to present any cogent, credible and convincing evidence to support its independent claim for the order of payment of the sum of N84,869.26 as salary in lieu of notice.

In view of the foregoing, the sole issue formulated for the resolution 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 is not entitled to the Counter-Claim.

In the final analysis, the counter-claim is found to lack merit and same is accordingly dismissed in its entirety.

Judgment is accordingly entered with respect to the counter-claim

I make no order as to cost as parties are to bear their respective cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.