MR. ABALI OTI O. -VS- ECOBANK NIG. LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 21st May 2018 SUIT NO. NICN/EN/28/2016

BETWEEN

ABALI OTI O. … CLAIMANT

AND

ECOBANK NIG. LTD … DEFENDANT

REPRESENTATION:

Ejikeme Wilson Oji Esq. with Chinwe Offor Esq. for the Claimant

Chief Christopher Chike Aghanwa with Cornelius Osita Njoku Esq. for the Defendant.

JUDGMENT

By a Complaint filed on 24th June 2016, the Claimant claimed against the Defendant for:

A declaration that the Claimant is still the employee of the Defendant until his employment is determined in accordance with his contract of employment.

An order on the Defendant to pay the Claimant his arrears of salaries from 19/2/2014 till when the Claimant employment shall be determined in accordance with his terms of contract of employment.

An order on the Defendant to remit the statutory deductions including pension funds, tax funds, housing funds as the Defendant usually do, to the relevant authorities.

An order on the Defendant to pay the Claimant his 13th month salary of N238, 086.66 yearly from 2014 till judgment is delivered.

N10, 000,000 general damages for causing the Claimant financial hardship/embarrassment by repeated refusal to pay his salaries.

N10, 000,000 aggravated/exemplary damages against the Defendant.

N500, 000 cost of prosecuting this suit.

The Claimant filed with the complaint a statement of facts, list of witness, sworn statement of the Claimant, documents to be relied on and copies of the documents. Upon receipt of the processes, the Defendant entered conditional appearance and filed its defence processes and counterclaim dated 6th September 2016 in opposition to the Claimant’s claim. The Claimant filed a reply to the statement of defence and defence to the counterclaim dated 14th October 2016. The case came up on 14th December 2017 and was adjourned to 8th February 2018 for trial. The Claimant and his Counsel were absent on 8th February 2018 and there was no explanation for their absence. On application of the Defendant’s Counsel, the claim was struck out pursuant to Order 38 Rule 3[1] of National Industrial Court of Nigeria [Civil Procedure] Rules 2017 and the Defendant was granted leave to prove its counterclaim.

The Defendant’s witness, Mr. Anyebe Anebi, adopted his statement on oath dated 8th September 2016 and tendered 16 exhibits, exhibits A to P. Exhibit A is provisional offer of employment, exhibit B is upgrade of appointment, exhibit C is confirmation of appointment; exhibit D is grade harmonisation, exhibit E is termination of appointment. Exhibit F is statement of indebtedness, exhibit G is Claimant’s Solicitors’ letter to the Defendant; exhibit H is the Defendant’s reply, exhibit I is Claimant’s loan application, exhibit J is employee credit application and approval form; exhibit K is employee credit facility agreement, exhibit L is Oceanic Bank Employee Handbook; exhibit M is staff exit clearance certificate form, exhibit N is Claimant’s loan repayment schedule report. Exhibit O is Claimant’s statement of account and exhibit P is Ecobank Human Resources Policies. The case was thereafter adjourned to 28th February 2018 for cross-examination of the Defendant’s witness. The Claimant and Counsel were absent on 28th February 2018. Consequently, the Claimant was foreclosed and the witness discharged. The case was thereafter adjourned for adoption of final written addresses.

The case came up on 19th April 2018 for adoption of final written addresses. The Defendant’s Counsel, Chief Aghanwa, adopted his final written address dated 22nd March 2018 but filed on 27th March 2018 and urged the Court to grant the counterclaim. The Claimant’s Counsel, Mr. Oji, submitted that just like the main claim, the counterclaim should succeed on its strength and not on the weakness of the Claimant’s case. The case was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant did not participate in the proceeding in spite of service of hearing notices on his Counsel. As a result his claim was struck out. Also, the Claimant did not file any witness deposition in support of his defence to the counterclaim. Consequently, the defence to counterclaim is deemed abandoned.

DEFENDANT’S CASE

The Defendant’s case is that the Claimant was its staff. On 10th July 2012 he applied for a personal loan of N3, 750,000, exhibit I, which was granted. The Claimant executed the Employee Credit Application and Approval Form, exhibit J and the Employee Credit Facility Agreement, exhibit K. The loan was fully disbursed to the Claimant and was for a tenor of 48 months at 12% flat per annum. At the time of Claimant’s exit from the Defendant on 20th February 2014, his total indebtedness was N1, 725, 167.49, exhibit F. By letter dated 11th December 2015, exhibit H, the Defendant made demand for liquidation of the Claimant’s debt which was N4, 338, 774.36 as at that date. By exhibits N and O, the net debit balance as at August 2016 was N4, 984, 974.32 which debt remains unpaid in spite of repeated demands.

SUBMISSION ON BEHALF OF THE DEFENDANT

The Defendant formulated one issue for determination in its final written address to wit, whether the Defendant has proved the reliefs in its counterclaim?

Arguing this lone issue, learned Counsel for the Defendant submitted that the evidence of DW1 is credible, weighty and unchallenged and urged the Court to hold that the Defendant has proved its counterclaim on a preponderance of evidence. Learned Counsel referred to and relied on section 134 of the Evidence Act 2011 and the cases of Mainagge v. Gwamma [2004] 14 NWLR [pt.893] 323 at 333-334, Adeleke v. Iyanda [2001] 13 NWLR [pt.729] 1 at 22-23 and Okoegbor v. Police Council [2003] 12 NWLR [pt.834] 444 at 470-471.

SUBMISSION ON BEHALF OF THE CLAIMANT

Although learned Counsel for the Claimant was served with the Defendant’s final written address, he did not file any written address but orally urged the Court that the counterclaim should succeed on its strength and not on the weakness of the Claimant’s case.

COURT’S DECISION

I have considered all the processes filed in this suit and the submissions of learned Counsel for the parties. Before addressing the merit of the case, I would like to note that although the Claimant filed a defence to the counterclaim he did not file a witness’ deposition. Also, he did not participate in the trial and did not present any evidence in defence of the counterclaim. His averments in the defence to counterclaim are not tantamount to evidence and cannot be so construed. Averments in pleadings to be worthy of consideration by the Court must be proved by credible evidence subject, however, to any admissions by the other party. See the cases of Mrs. Felicia Odebunmi & Anor. v. Alhaji Isa Abdullahi [1997] LPELR-2201[SC] at page 20 and Momodu Olubodun & 4Ors. v. Oba Adeyemi Lawal & Anor. [2008] LPELR-2609[SC] at page 49. Accordingly, the Claimant is deemed to have abandoned his defence to the counterclaim. In Senator Usman Jibrin Wowo & Anor. v. Senator Adamu Muhammad Sidi-Ali & Ors. [2009] LPELR-5106[CA] at page 63, Aboki, J.C.A, had this to say:

“Pleadings in themselves do not constitute evidence. Mere averments without evidence in proof of facts pleaded goes [sic] to no issue and such averment is deemed abandoned and would be struck out by the Court unless it is admitted by the adverse party.”

The Claimant’s reply to the statement of defence and defence to counterclaim dated 14th October 2016 having been abandoned is hereby struck out.

Having said this, the issue for determination in this case is whether the Defendant has proved its counterclaim?

It is trite that a counterclaim is a separate and distinct action, and the Counterclaimant, like the Claimant, must prove its claim against the Defendant to the counterclaim before it can obtain judgment on the counterclaim. See the cases of Alhaji H. A. Ogiren v. Mrs. Amzat Olufunmilayo & 2Ors. [2015] LPELR-24295[CA] at pages 25-26, Guaranty Trust Bank Plc & Anor. v. Mustaglass Nigeria Limited & Anor. [2013] LPELR-20446[CA] at pages 20-21, Melford Agala & 9Ors. v. Chief Benjamin Okunsin & 3Ors. [2010] LPELR-221[SC] at pages 21-22 and sections 131[1] and 132 of the Evidence Act 2011. Thus, to succeed the Defendant/Counterclaimant must put forward cogent and credible evidence in support of the reliefs sought.

Arguing the lone issue, learned Counsel for the Defendant submitted that the evidence of the Defendant’s sole witness is credible, weighty and unchallenged by the Claimant and urged the Court to accept and act on it. He relied on section 134 of the Evidence Act 2011 and the cases ofMainagge v. Gwamma [supra], Adeleke v. Iyanda [supra] and Okoegbor v. Police Council [supra].

I have reviewed the Defendant’s pleading and evidence particularly exhibits I, J, K, F, H, N and O. Exhibits N and O are electronically generated documents, computer print-outs of the Claimant’s statement of account. To be admissible, the documents must comply with section 84[1] of the Evidence Act 2011. The subsection provides:

“[1] In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection [2] of this section are satisfied in relation to the statement and computer in question.” [Underlining mine]

See also the case of Hon. Henry Seriake Dickson v. Chief Timipre Marlin Sylva & 3 Ors. [2017] 8 NWLR [pt. 1567] 167 at 233 lines B-C. The question then is did these exhibits comply with this provision? I have read through the statement of defence and counterclaim and the witness deposition. There is no averment or evidence showing how the documents were produced and details of the computer used or generally bringing the documents within the provisions of section 84 of the Evidence Act 2011. In addition, there is no certificate attesting to the correctness and authenticity of the exhibits, including the name, signature and designation of the certifying officer as specified in section 84[4] of the Evidence Act, 2011. The signature and date on the exhibits does not satisfy the requirements of section 84 of the Evidence Act, 2011. In the circumstance, exhibits N and O are ordinarily not admissible in evidence. Having been wrongly admitted, the evidence must be excluded in this judgment and I so hold. In Mrs. Elizabeth N. Anyaebosi v. R. T. Briscoe [Nig.] Ltd. [1987] LPELR-506[SC] at page 45, the Supreme Court, per Karibi-Whyte, J.S.C., held:

“It is well settled that a Judge is perfectly entitled in his judgment to disregard an evidence erroneously admitted at the trial.”

See also the case of Obi Nwanze Okonji & 4 Ors. v. George Njokanma & 2 Ors. [1991] LPELR-2476[SC] at pages 17-18. From admissible evidence before this Court, the following facts are established:

The Claimant applied for N3, 750,000 loan on 10th July 2012 to meet personal needs and completed the Employee Credit Application and Approval Form, exhibit J. The loan was processed and approved on the same day and booked at 12% flat per annum. Consequent upon the approval, the Claimant executed the Employee Credit Facility Agreement, exhibit K.

The loan was fully disbursed to the Claimant and was for a tenor of 48 months with total monthly repayments of N98, 751.88 by direct debit from his monthly salary, exhibit J.

At the time of Claimant’s exit from the Defendant on 20th February 2014, his total indebtedness was N1, 725, 167.49, exhibit F.

By letter dated 11th December 2015, exhibit H, the Defendant informed the Claimant’s Solicitors that the Claimant’s indebtedness to it as at that date was N4, 338, 774.36 and made demand for its liquidation.

Interestingly, the Claimant did not dispute the fact of the loan or the terms thereof. In paragraph 10[ii] of his reply to the statement of defence and defence to counterclaim dated 14th October 2016, he admitted that the loan was to run for 48 months from August 2012 to July 2016. In paragraph 6[i] and [iii] he admitted receipt of exhibits F and H and that the debit balance on his loan account as at 20th February 2014 wasN2, 343, 750. The Claimant also admitted paragraph 19 of the statement of defence on monthly repayment. The Claimant’s only defence to the claim is that the repayment of the loan is tied to his salaries. As I have held earlier, the Claimant’s reply to the statement of defence and defence to counterclaim is deemed abandoned and was consequently struck out. Be that as it may, this loan does not fall within the category of loans described as enhancement loan or allowance. In the case of Mr. Olusola Oginni v. Proserve Instrumentation [Nig.] Limited, Suit no. NICN/LA/447/2016 delivered on 17th August 2017 by the Lagos Judicial Division of this Court. Hon. Justice Amadi held, on page 11 of the judgment, thus:

“I shall now answer the question of whether the Defendant can recover the unearned or unutilized housing allowance paid to the Claimant. The payment here falls into the category of enhancement allowance or payment. There is now the introduction in labour and industrial relation jurisprudence the concept or doctrine of non-recoverability of enhancement allowances or facilities…. The doctrine simply put is where an employer advances a facility in any manner or form aimed at the enhancement of the status and or productivity of the employee which facility is tied to the employee’s employment in that repayment is by direct utilization of his services or deductions from his salary and other emoluments, but before the full utilization or full repayment of the facility advanced, the employee’s employment was unilaterally terminated by the employer, on the ground that the employee’s services were no longer required, the employer is estopped from recovering the balance remaining unpaid on the facility, in which case, the employee will be discharged from further obligation under the advanced facility. The reason here being the fact that the repayment has been frustrated and the contract rescinded.”

This decision was applied by this Court with approval in Mr. Agha Anyina v. First City Monument Bank Ltd., Suit no. NICN/ABK/03/2017 delivered on 2nd May 2018. However, it is my respectful view that these decisions are not applicable to this case. The loan, the subject matter of the counterclaim, is a personal loan required by the Claimant to meet his “personal needs”. These “needs” were not specified and are certainly not connected with the performance of his duties to the Defendant even though the repayment was tied to his monthly salaries. I therefore find and hold that this defence is not tenable.

I observe that although the Claimant acknowledged receipt of exhibits F and H he did not contest the amounts specified in the exhibits. By his silence, he is presumed to have admitted the facts stated therein. In exhibit H the Claimant’s total indebtedness as at 11th December 2015 was put atN4, 338, 774.36. The letter also contained a rider “which sum will continue to attract interest at the prevailing rate until fully liquidated.” In In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] at page 20, per Eko, JCA, held:

“The law espoused in Joe Iga v. Chief Ezekiel Amakri [1976] 11 SC 1; Gwani v. Ebule [1990] 5 NWLR [pt.149] 201; Vaswani v. Johnson [2000] 11 NWLR [pt. 679] 582 and recently applied by this Court in the unreported Oil Gas Export Free Zone Authority v. Dr. T. C. Osanakpo [CA/PH/366/2005 of 20th January 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.”

It is settled law that a document tendered in Court is the best proof of the contents of such document. See Mr. Ignatius Anyanwu & 5 Ors. v. Mr. Aloysius Uzowuaka & 13 Ors. [2009] LPELR-515[SC] at pages 22-23 and Yaba College of Technology & Anor. v. Monumental Concepts & Displays [MC & D] Limited [2014] 3 NWLR [pt.1395] 616 at 665 lines D-E. Exhibit H shows conclusively that the Claimant owed the Defendant the sum of N4, 338, 774.36 as at 11th December 2015. This evidence having not been challenged is accepted as correct. I therefore enter judgment in favour of the Defendant/Counterclaimant against the Claimant for the sum of N4, 338, 774.36.

On interest, it is the law that pre-judgment interest is awarded where there is an agreement for payment of interest or under a mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be specifically pleaded and strictly proved. See the cases ofUnited Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2013] LPELR-20692[CA] 49 and Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc [2006] LPELR-11756[CA] at page 21. In Berliet Nigeria Ltd. v. Alhaji Mustapha Kachalla [1995] LPELR-775[SC] at page 44-45, Ogundare, JSC held:

“There clearly is a difference between award of interest pre-judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the court.”

There is evidence before me that parties agreed on 12% flat per annum interest on the facility. Interest was specifically pleaded in paragraphs 19, 22 and 28 of the statement of defence and counterclaim and proved. See paragraphs 5, 15, 18 and 25 of the Defendant’s witness statement on oath and exhibit K. However, there was no agreement on compounding of interest and there is no evidence before this Court on compound interest. In Chief Anthony Edosa v. First Bank of Nigeria Plc [2011] LPELR-8785[CA] at pages 14-15, the Court of Appeal held that failure to prove specific interest will result in failure to obtain judgment thereon. See also Obande Obeya v. First Bank of Nigeria Plc [2010] LPELR-4666[CA] at page 25. The claim for compound interest fails and is hereby dismissed.

In the final analysis, the counterclaim succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Defendant against the Claimant for the sum ofN4, 338, 774.36 together with interest at the rate of 6% per annum from today until the judgment sum is fully liquidated. The claim for compound interest fails and is hereby dismissed. Cost follows event. See Union Bank of Nigeria Plc v. Charles Olusola Toyinbo [2008] LPELR-5056[CA] page 67. Pursuant to Order 55 rules 1, 2, 4 and 5 National Industrial Court [Civil Procedure] Rules, 2017, cost of N20, 000 is awarded in favour of the Defendant against the Claimant.