IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
DATE: TUESDAY, APRIL 24, 2018
SUIT NO: NICN/LA/443/2017
BETWEEN:
MR. AJOR JOHN AJIFEN…………………………………… CLAIMANT
AND
SOVEREIGN GUARDS LIMITED ………………………… DEFENDANT
REPRESENTATION:
Alexander Ishogba for the Claimant.
Oluwashina Ojelade for the Defendant.
JUDGMENT
Introduction and claims
By General Form of Complaint and the accompanying originating processes dated and filed on September 15th 2017, the Claimant filed this suit seeking the following reliefs:
The sum of N600,000 (Six Hundreds Thousand Naira) being Claimant’s Salaries for the month of November 2016, January, February and March 2017 at the rate of N150, 000.00 (One Hundred and Fifty Thousand Naira) per month.
The sum of N120,000 (One Hundred and Twenty Thousand Naira) being operational allowance for the months of November 2016, January 2017 and February, 2017 at the rate of N40, 000 (Forty Thousand Naira) per month.
The sum of N400, 000 (Four Hundred Thousand Naira) being Solicitors fee for the prosecution of this case.
The sum of N500, 000 as general damages.
The claimant testified as CW by adopting his 20 paragraphs statement on oath which was admitted as exhibit CWA-A1, the claimant also tendered Seven (7) other documents which were admitted as exhibits CWB-B1, CWC-C1, CWD-D1, CWE-E3, CWF, CWG-G1 and CWH. The defendant testified through its Admin Manager, Mr. David Essien as DW by adopting 17 paragraph Statement on Oath which was marked as Exhibit DWA-A1, the defendant also tendered six (6) other documents admitted as exhibits DWB-B1, DWC, DWD-D1, DWE-E1, DWF and DWG.
Case of the claimant
The claimant is a retired officer of the State Security Services (SSS) now (DSS), and a former Deputy General Manager (Operations) in the defendant’s company. By a resignation letter served on the defendant on 28/2/2017, the claimant resigned his appointment with the defendant with effect from 1st April, 2017.The Defendant accepted the said resignation on the same day (28/2/2017) and ask claimant to stop work immediately according to the claimant with a promise that his salaries will be paid as soon as possible. That despite several efforts made by the claimant to have his salaries paid, the defendant refused, failed and/or was unwilling to pay claimant his salaries thereby forcing claimant to engage the services of a solicitor who issued several letters of demand on the defendant.That rather than paying the claimant’s arrears of his salaries, the defendant through its solicitors demanded for an undertaking that the sum of ₦300,000 would be the claimant’s full and final payment. The claimant rejected the condition as according to him, same would have amounted to an ouster of the jurisdiction of the court and/or a limitation on his right to seek legal redress if not satisfied with the amount paid to him. That having admitted that the claimant is entitled to the sum of ₦300,000 as salary arrears, the defendant ought to have paid same immediately without attaching any condition or opting to curtail claimant’s right to access justice.
Submission of the defendant
In its final written address, the defendant formulated and argued the following issues;
Whether Exhibit CWE-E3 is admissible in Evidence
Whether having regards to the pleadings and evidence, the claimant has proved his claims.
Whether the defendant is liable to pay the claimant’s Solicitor’s Fees
On the first issue, the defendant argued that during the evidence in chief of the CW1, particularly at the point where exhibit CWE-E3 was sought to be tendered in evidence, defendant counsel raised objection to the admissibility of the said document but your lordship advised that the objection should be incorporated into the defendant’s final written address. That Exhibit CWE-E3 is the claimant’s United Bank for Africa Statement of Account.The defendant’s first ground of our objection is that Exhibit CWE-E3 is not properly before the court and as such the court cannot act on or take any cognizance of the document. That the Claimant pleaded Exhibit CWE-E3 in paragraph 1 of the claimant’s reply to statement of defence dated 10th October, 2017. That the said document does not form part of the document listed and exhibited by the claimant in his list of documents dated 22nd August, 2017. That in order to bring the document properly before the court, the claimant is expected to seek the leave of this court through a motion on notice for an order to bring in additional document but on the contrary, the claimant just filed a process titled “Additional list of Documents” dated 26th October, 2017 and attached Exhibit CWE-E3 thereto without any order of court to that effect. To the defendant, on that ground, the document is not properly before the court and I urge your lordship not to take any cognizance of exhibit CWE-E3.
The defendant’s second ground of objection is that during the claimant’s testimony in chief, his counsel asked him this question- “in exhibit CWA-A1, you referred to some documents…” and he asked the claimant to identify the documents. That Exhibit CWE-E3 was tendered as part of the said documents. That the only evidence of the claimant before this court is the Claimant’s Statement on Oath admitted as Exhibit CWA-A1, that all through the 20 paragraphs of exhibit CWA-A1, nowhere was exhibit CWE-E3 mentioned at all and neither did counsel led the witness to give oral evidence concerning the said document. The defendant therefore submitted that it is trite that Pleading cannot take the place of evidence; document pleaded and tendered without any link in the party’s evidence goes to no issue.
The defendant further argued that Section 84 of the Evidence Act 2011 provides for some conditions to be satisfied for the admissibility of statements in documents produced by computers. That it is mandatory for the claimant to file an affidavit stating that the conditions stipulated in Section 84 (2) of the evidence Act 2011 were complied with for exhibit CWE-E3 to be admissible being computer generated document. That the claimant has failed to comply with the said conditions and as such Exhibit CWE-E3 remains inadmissible and should be discountenanced.
On the second issue, the defendant submitted that it is trite law that he who asserts must prove and unless he does that with sufficient and cogent evidence, he will not be entitled to the relief sought by him. Citing Songhai Ltd V UBA (2004) FWLR (pt 189) 1244, and Nwawu V Okoye (2009) 37 NSCQR, pg 280, para A-D. The defendant went on that in a bid to prove his case, the claimant adopted his Statement on Oath admitted i.e Exhibit CWA-A1 and tendered 7 other exhibits mentioned above and that the claimant admitted the following facts under cross examination:
That his Salary of N150,000 is inclusive of his allowances contrary to his evidence in paragraph 4 of exhibit CWA-A1.
That the payment of the operation allowance of N40,000 is not contained in exhibit DWB-B1.
That the sum of N35,000 was provided as his Transport allowance in the last paragraph of the first page of exhibit DWB-B1
That there was no written document confirming his claim of N40,000 as operational allowance
That he was aware that he needed to give one month notice of his resignation or forfeit one month salary in lieu of notice
That his letter of resignation is not dated
That there was no written document from the defendant mandating him to stop work.
That by virtue of his position, he performs any duty assigned to him by the defendant
That in the course of performing such duties, the defendant does mobilize him with fund where needful.
The defendant went on that in proving his entitlement to the alleged N40,000 monthly operational allowance which the defendant denied, the claimant placed reliance on exhibit CWE-E3 which admissibility the defendant argued against in issue 1 above. The defendant submitted that in the unlikely event that its objection against exhibit CWE-E3 is overruled, the defendant proceeded to argue the evidential value of exhibit CWE-E3. The defendant submitted that it is settled law that a party relying on documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of his case i.e there must be a link between the document and the specific areas of the pleading. Citing ONMEJE V OTOKPA (1999) 4 NWLR (PT 600) 518 AT 524, TERAB V LAWAN (1992) 3 NWLR (PT231) 569 AT 575, and ALIUCHA V ELECHI (2012) LPELR – SC 30/2012, the Supreme Court said:
“when a party decides to rely on documents to prove his case, there must be a link between the document to the specific areas of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial court. No court would accord any probative value to a document that is dumped on the court,where there is no oral evidence led by any of the parties explaining the essence of the document and its relevance to the issue(s) it portends in the case. See ADIKE V OBIARERI (2002) 4 NWLR (PT 758) 537. A judge is an adjudicator not an investigator or analyst or conjecture. The court does not spend its precious time linking documents to specific areas of a party’s case, to come up with a result favourable to the party different from what the party presented. See ANPP V INEC (2010) NWLR (PT1212) 549; See also AGO V AKANO (2005) 11 NWLR (PT 935) 160 where the supreme court held that documents admitted in evidence, no matter how useful they could be, would not be of much service to the court in the absence of admissible oral evidence to explain their import.
It is the submission of the defendant that there is no oral evidence explaining the import of exhibit CWE-E1 in the claimant’s case, the document was just dumped on the court, that the only evidence of the claimant before this court is exhibit CWA-A1 and there is nowhere in the 20 paragraphs contained therein where exhibit CWE-E3 was mentioned or linked to the claimant’s case. The only place where the claimant referred to exhibit CWE-E3 was in paragraph 1 of the claimant’s reply to statement of defence dated 10th October, 2017. The Defendant therefore submitted that it is trite law that pleading cannot take the place of evidence. That even in the said paragraph 1 of the Claimant’s reply under reference, the claimant stated that he pleads and shall rely on his UBA bank statement of account (CWE-E3) showing operational allowance paid along with his salary by the defendant. That the claimant did not by evidence explain to this court where in Exhibit CWE-E3 the defendant paid the said operational allowance to the claimant. The Defendant went on that the transactions contained in exhibit CWE-E3 were recorded from the 1st of April 2016 to the 31st of July 2017 but there was no evidence on record explaining the particular transactions which the claimant is relying on, that since the court is not an investigator, the court cannot be scouting for the relevant transactions which the claimant intend to rely on, it is the duty of the claimant to do so, the Defendant therefore urged this court to hold that exhibit CWE-E3 lacks probative value before this court.
It is further argued by the Defendant that the name of the defendant appeared twice in exhibit CWE-E3, that the sum of N190, 000 and N188,100 were transferred from the defendant to the claimant on 3rd May, 2016 and 15th July, 2016. The transaction of 8th June, 2016 described as staff salary does not bear the name of the defendant as the transferor and as such the court cannot take cognizance of it in the absence of any evidence to that effect. That assuming that the claimant is entitled to an additional N40, 000 monthly operational allowances as alleged, the monthly salary credited to the account of the claimant by the defendant ought to be N190, 000 monthly.
The Defendant further submitted that in exhibit CWE-E3, the transaction of 3rd May 2016 was N190,000 while that of 15th July, 2016 was N188,100, if indeed the claimant is entitled as alleged, why the difference in the payments?, that no evidence was even led to explain this. More so, the claimant worked with the defendant for about 12 months from 15th March 2016 to 28th February, 2017, the defendant through exhibit CWE-E3 exhibited statement of account showing salaries for only the months of May and July 2016, the Defendant therefore argued that one would be tempted to ask why the claimant did not evidence his statement of account for August 2016, September 2016 and October 2016 to show that the acclaimed operational allowance of N40,000 has been consistently paid into his account by the defendant. To the Defendant, in the absence of such vital evidence, the court may presume under section 167 (d) of the Evidence Act 2011 that such evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
It is the submission of the Defendant that the claimant cannot be regarded as a witness of truth, that in paragraph 4 of exhibit CWA-A1, the claimant testified on oath that he was placed on a monthly salary of N150, 000 excluding allowances and other incidental payments but during cross examination, the same claimant admitted that his salary of N150, 000 is inclusive of his allowances. That a party must be consistent in stating his case and in proving it. Citing Ajide V Kelani (1985)3 NWLR (pt 12) 248 at 251. To the Defendant, these contradiction portray the claimant as lacking in credibility, the claimant cannot approbate and reprobate in his testimony. Citing Ezemba V Ibeneme (2004) 7 SC Pt 1, Page 45 at 56where the Supreme Court held:
“No witness who has given on oath two material inconsistent pieces of evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as truthful witness”
On the nature of contract between the claimant and the defendant, the Defendant stated that the claimant had pleaded and testified that his contract with the defendant was both written and oral, that he testified that the alleged N40, 000 operational allowances was orally agreed. That the defendant having joined issue with the claimant on that averment, the onus is on the claimant to prove such oral agreement to the satisfaction of the court, that it is not enough for the claimant to merely make assertion, the must prove same to the satisfaction of the court, citing Songhai Ltd V UBA (supra), Nwawu V Okoye (supra). The defendant therefore urged this court to hold that the claimant has failed to prove the existence of any oral agreement between him and the defendant because the claimant neither called any witness who was aware of such oral agreement nor provided any other evidence in support of that assertion.
The defendant also contended that the only evidence establishing the contract between the claimant and the defendant is exhibit CWB-B1 which clearly enumerates the claimant’s basic salary and allowances, that in the absence of any credible evidence to contradict exhibit CWB-B1, the court cannot allow the claimant to import new terms into the agreement binding the parties. The defendant further contended that while it is agreed that oral agreement has the legal capacity to re-order or change the content of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt which the defendant said claimant has failed to do. Placing reliance on Chime V Chime (1995) 6 NWLR (pt 404) 734, AG Lagos State V Purification Tech. (Nig) Ltd (2003) 16 NWLR (pt 845) 1.
The defendant also contended that it is not enough for the claimant to merely assert that there was an oral agreement between him and the defendant, the defendant must prove same to the satisfaction of the court. That in the absence of such evidence, it is unarguable that any sum of money paid in excess of the claimant’s N150,000 monthly salary was paid as mobilization to the claimant to carry out a particular duty assigned to the claimant at that period of time as stated in paragraph 4 on the first page of exhibit CWB-B1 and as admitted by the claimant under cross examination that the defendant does mobilize him with money to perform any assigned duty where necessary.
On whether the claimant had given one month notice of his intention to resign his employment as agreed in exhibit, CWB-B1, the defendant argued that it is obvious from the pleadings that the claimant stopped working with the defendant on the 28th day of February 2017 on which date he submitted his letter of resignation. That this fact is corroborated in paragraph 6 of the Statement of claim wherein the claimant pleaded that he served the defendant meritoriously between 15/3/2016 and 28/2/2017, the defendant went on that the averment alone is an admission that the claimant did not work beyond February 2017. The defendant further argued that the claimant had also confirmed paragraph 5 of his Reply to Statement of defence dated 10th October, 2017 that he did not work for the month of March, 2017. The defendant then submitted that it is no longer in doubt that the defendant owed the claimant salaries for November 2016, January 2017 and February 2017.
On the averment in paragraph 5 of his reply to statement of defence that the Chairman/CEO of the defendant stopped the claimant from working for the month of March 2017 which the defendant denied that allegation in paragraph 6 of the Statement of defence, to the defendant, having joined issue on that fact, the onus is again on the claimant to prove that assertion with credible evidence. The defendant said the claimant had admitted under cross examination that there was no written document from the defendant mandating him to stop work, yet the claimant did not even call any eye witness or any other witness or lead any evidence to prove that fact, that in the absence of any credible evidence to establish that fact, the court is bound by the evidence before it. The defendant therefore urged this court to hold that the defendant did not stop the claimant from working in March 2017 but the claimant voluntarily resigned on 28th February 2017 and stopped work on same day.
It is contended by the defendant that having established that the defendant owed the claimant salaries for November 2016, January 2017 and February, 2017 as admitted by the defendant in paragraph 4 of exhibit CWC-C1 and having established that the claimant did not give the required one month notice of his resignation, by the terms of exhibit CWB-B1 as stated in the first paragraph of its second page, the claimant would forfeit one month salary in lieu of that notice and the claimant is entitled to only two months’ salary amounting to the sum of N300,000.00 (Three Hundred Thousand Naira Only) which the defendant admitted and was ready to pay as stated in exhibit CWC-C1.
On the claimant’s claim the sum of N400, 000 as Solicitor’s fee for the prosecution of this case which the claimant predicated on the statement in exhibit CWG-G1 that any expenses incurred by the claimant to recover the sum shall be borne by the defendant. The defendant said the question here is whether the defendant is liable to pay the Claimant’s Solicitor’s fee. The defendant further stated that upon receipt of exhibit CWG-G1, the defendant wrote exhibit DWE-E1 wherein the defendant explained the effect of the economic condition on the defendant’s business, the defendant calculated the salary it owed the claimant, admitted owing the sum of N300, 000 and indicated its readiness to pay same. That in exhibit CWH, the claimant cunningly evaded the amount calculated by the defendant in exhibit DWE-E1 which act the defendant said was not palatable to the defendant and that the defendant further wrote exhibit DWG to the claimant to seek his acceptance of the said sum of N300,000 as full and final settlement of his entitlement but the claimant who had cunningly wanted the defendant to pay the sum of N300,000 and still engage the defendant in a legal battle refused to further communicate with the defendant but filed this suit. The defendant then said it is deducible from paragraph 9 of the claimant’s reply to statement of defence that the claimant is not satisfied with the defendant’s calculation of N300, 000 as salary owed the claimant, hence, the claimant’s refusal to accept the said sum as full and final settlement of the claimant’s salaries.
The defendant contended that if the claimant had accepted the sum of N300, 000:00 (Three Hundred Thousand Naira only) as full and final settlement of the claimant’s salaries as demanded in exhibit DWG (which sum the defendant was ready to pay without any delay) and the defendant still refused to pay same, then the defendant would be liable for any expenses incurred by the claimant to recover the money.
To the defendant, that is not the case here, that the claimant is claiming N600, 000 as salary for four months as demanded in exhibit CWG-G1 but the defendant admitted owing only N300,000 being salaries for two months. That the claimant is also claiming the sum of N120, 000 as monthly operational allowances for 3 months while the defendant denied total liability for this claim, the claimant then filed this suit. The defendant then asked: can the defendant be liable to pay the claimant’s cost of filing a suit to recover a sum of money which the defendant does not owe? The defendant urged this court to answer the question in the negative.
On Exhibit CWD-D1, the Claimant Solicitor’s invoice and receipt, It is the contention of the defendant that a cursory look at the invoice will reveal that it is not addressed to or directed at the claimant, that it is customary that the name of the recipient who is to pay the charges therein or the person to whom the service is rendered or goods sold to is always named on an invoice. That the exact date the invoice was prepared was not also indicated, that 2017 could be any month of the year. As for the receipt, to the defendant, the sum stated therein was said to be paid by the claimant to his solicitor as “professional fees for handling a case at the National Industrial court”, that the receipt does not bear any link with this case as it does not indicate whether the case being handled for the claimant is against the defendant, that the claimant solicitor could as well handle any other matter for the claimant at National Industrial Court apart from this case. The defendant therefore urged the court to hold that exhibit CWD-D1 has no probative value in this case. That the defendant has also expended money to engage his solicitor and it is only proper in the circumstances that parties should bear their respective costs.
The defendant finally urged this honourable court to hold that upon the available evidence on record, the claimant has not proved his case to the satisfaction of the court as required by law. That the defendant has admitted liability for the sum of N300,000 and the defendant is willing and ready to pay same. That the claimant’s claim in excess of the said sum of N300,000 is frivolous, vexatious and constitutes an attempt at gold digging. The defendant therefore urged to dismiss the claimant’s claim in excess of the admitted sum.
Submission of the Claimant
In his final written address, the claimant submitted the following issues for determination:
Whether exhibit CWE-E3 is relevant and admissible in Evidence
Whether claimant has proved his case on the balance of probability to entitle him to the reliefs sought herein
On the first issue, claimant submitted that the general principle governing the law of evidence is that, with some specific exceptions, all evidence which is sufficiently relevant to an issue before the court is admissible.Placing reliance on Section 6 of the Evidence Act. The claimant also said in Elias V Disu (1962) I All NLR 214, the Court of Appeal had held that in determining whether a particular document is admissible or not, it is the relevancy of the document that is important and not how the evidence was obtained. The claimant contended there is no doubt that the facts in issue before the honourable court are whether the claimant was entitled to operational allowance of ₦40,000 per month and, whether the defendant had at any time in fact paid operational allowance to the claimant. To the claimant, any document irrespective of the procedure in which it was obtained, that tends to explain and/or throw more light on the fact in issue ought to be regarded as a relevant and admissible document. Claimant went on that in paragraph 4 of the Defendant’s witness statement on oath (Exhibit DWA-A1),defendant’s witness denied that claimant was entitled to operational allowance of ₦40,000 per month thereby, making operational allowance a fact in issue before this honourable court. That Exhibit CWE-E3 merely sought to explain that the defendant, contrary to its averment had actually paid claimant operational allowance each month. To the claimant, except a document is too remotely connected to a fact in issue, it is trite that such a document is admissible in evidence. It is contended by claimant that Exhibit CW E-E3 was sufficiently pleaded and frontloaded in the claimant’s reply to the Defendant’s Statement of Defence which obviously forms part of the pleading before the court. That since Parties are bound by their pleadings and a reply to a statement of defence form part of pleadings, the Defendant cannot be heard complaining of the admissibility of the document.
On the second issue, the claimant submitted that he seeks in the main, ₦600,000 and ₦120,000 as special damages; ₦500,000 as general damages and, ₦400,000 as cost of action. In paragraphs 17 and 18 of the Statement of Claim, that he pleaded the particulars of the special damages. That specifically, he tendered exhibit CW B-B, and CW E-E3 which clearly showed his monthly salary of ₦150,000 and, monthly operational allowance of ₦40,000 as paid by the Defendant.The claimant contended that averment in respect of claimant’s aforesaid salary and operational allowance and the evidence led in support thereof by claimant were neither denied nor contradicted by the defendant. The claimant placed reliance on Arabambi V. Advance Beverages Industry Limited (2005) 19 NWLR (Pt.959) Page 1 unchallenged or uncontradicted, the court ought to uphold same. Claimant further stated that the above finding was made by the Supreme Court in a case where receipt or invoice was not tendered. But in the instant case, exhibits CW B-B1 and CWE-E3 are letter of employment and bank statement evidencing payment of salary and operational allowance respectively to the claimant. That these exhibits were not challenged in any way, the claimant therefore urged this court to rely on them.
The claimant also said claiming the sum of ₦500,000 as general damages and the sum of ₦400,000 as solicitor’s fees for prosecuting this case. That prior to paragraph 19 (b) of the Statement of Claim where the claimant made the claim, he had averred in paragraphs 7,8 and 9 of his Statement on Oath and the exhibits attached thereon (Exhibit CWF) that the nonpayment of his salaries that caused untold hardship on him.
That there is nowhere in the statement of defence where the above assertion was remotely doubted, much less denied. That indeed, the defendant responded to other paragraphs of the statement of claim but did not respond to paragraphs 7 and 8 and the assertions contained in exhibit CWF attached and pleaded in paragraph 9 of the statement of claims. The claimant therefore submitted that what is not denied is deemed admitted and requires no further proof. Placing reliance BalogunVs E.O.C B (ig) Ltd (2007) 5 NWLR PT 1028 page 584@600 and Lewis& Peats Ltd V Akhimain (1976)7 SC 157.
The claimant further stated that In the light of the established fact that claimant resigned his employment as a result of nonpayment of salaries, that the claimant suffered hardship thereby, several unfulfilled promises of the Defendant to pay claimant his outstanding salaries arrears, the claimant urged this court to award general damages to the claimant in the sum claimed.
It is contended by the claimant that he pleaded in paragraph 19 (c) of the Statement of Claim and tendered exhibit CW D-D1 i.e the invoice and receipt of payment of solicitor’s professional fees respectively, that this piece of averment was neither denied nor contradicted by the defendant. The claimant further contended that Exhibit CW G-G1 i.e. claimant’s solicitors letter of demand to the defendant, that clearly made known the intention of claimant to claim the said solicitor’s fees if Claimant’s demand is not honoured within 5 working days and under cross examination of DW, the defendant’s witness admitted that the defendant understood the full implications of exhibits CW G-G1.
On the meaning and principles guiding the award of damages, the claimant referred this court to the decision of the Supreme Court in Iyere V BFFM Ltd (2008)18 the decision of the court of appeal in Unipetrol Nigeria Plc V Adireje WA Ltd (2005)14 NWLR PT 946 page 563 @ 632-633.
To the claimant, in the present case, he had successfully by evidence shown that he was employed by the defendant on a monthly salary of ₦150,000, that he was entitled to operational allowance of ₦40,000 per month, that the defendant defaulted to pay his salaries arrears and operational allowance, that he resigned and gave the defendant adequate notice, that he demanded for the payment of his salaries, that the defendant had failed and or refused to pay the outstanding salaries till date, that he suffered hardship and incurred cost in maintaining the action and that these facts were not contradicted by defendant in the least.The claimant finally urged this court to hold that the he has proved his case on the balance of probability and grant the reliefs being sought herein.
COURT’S DECISION
I have painstakingly examined all the evidence adduced, the authorities cited and the submissions made by the parties to this suit. In my view, the only issue that calls for the determination of this court is whether the claimant has proved his entitlement to any or all the reliefs being sought.
The Claimant’s claim is essentially for special damages; his main claims are for arrears of salaries and operational allowances. The law is that special damages must be claimed specially and proved strictly. See NNPC V. Clifco Nigeria Ltd(2011) LPELR-2022 (SC) and Antoun&Anor. V Benson Oghene (2012) LPELR 8502 (Pp. 18-19, paras. G-B).
The claimants tendered his letter employment (Exhibit CWB – BI), defendant’s solicitor’s letter (Exhibit CWC – C1), invoices and receipt for payment of professional fees (Exhibit CWD – D1) and claimant’s statement of account (Exhibit CWE –E3).
The Defendant had stated at the trial that it would object to the admissibility of Exhibit CWE – E3, the court therefore directed the Defendant to raise its grounds of objection in its final written addresses. In its final written address the Defendant objected to Exhibit CWE – E3 on the following grounds.
That Exhibit CWE–E3 pleaded in paragraph 1 of the claimant’s reply to the defendant’s statement of defence did not form part of the documents listed in the claimant’s list of document dated 22nd August 2011. That for the said document to be properly before the court, leave must be obtained by the claimant to file additional list of documents which the claimant did not do, the defendant therefore argued that Exhibit CWE –E3 is not properly before the court.
That the only evidence of the claimant before the court is Exhibit CWA –A1 and that in all the paragraphs of Exhibit CWA – A1, nowhere was Exhibit CWE – W3 mentioned and no oral evidence was given concerning the said document. That it is trite that pleading cannot take the place of the evidence, that document pleaded and tendered without any link to the party’s case goes to no issue.
That the claimant had failed to comply with section 84(2) of the Evidence Act 2011 and as such Exhibit CWE – C3 remains inadmissible. The Defendant urged the court to discountenance Exhibit CWE –E3.
In reaction, the claimant cited Section 6 of the Evidence Act and the case of Elias V. Disu (supra) and said the Court of Appeal held that in determining whether a particular document is admissible or not, it is the relevancy of the document that is important and not how the evidence was obtained. The Claimant argued that he is entitle to N40, 000 (forty thousand naira only) as operational allowance per month and that any document, irrespective of the procedure in which it was obtained,that tends to explain and or throw more light on the fact in issue ought to be regarded as a relevant and admissible. To the claimant, the defendant had in paragraph 4(four) of its witness statement on oath (Exhibit DWA – A1) denied that the claimant was entitled to operational allowance of N40, 000 (forty thousand naira) per month, thereby making operational allowance a fact in issue before this court, that Exhibit CWE – E3 merely sought to explain that the defendant contrary to its averment had actually paid operational allowance monthly. It is the claimant’s contention that Exhibit CWE –E3 was sufficiently pleaded and front loaded in the claimant’s reply to the Defendant statement of defence which obviously forms part of the pleadings before the court. That since parties are bound by the pleadings and that a reply to statement of defence forms part of pleading, the defendant cannot be heard complaining on its admissibility.
The tests for admissibility of documents in law are pleading, relevance and admissibility. See Salami V. Ajadi (2007) LPRLR – 8622 (CA). Exhibit CWE –E3 was pleaded in paragraph 1 of the claimant’s reply to the defendant’s statement of defence, it seeks to establish the facts of payment of operational allowance to the claimant by the defendant which is in issue and this makes it relevant. Its admissibility is however challenged by the defendant because it is not contained in the claimant’s list of documents to be relied upon dated the 22nd day of August 2017, that it was not mentioned in Exhibit CWA – A1 (claimant’s witness statement on oath) and its noncompliance with Section 84 of the Evidence Act.
On the issue of failure by the claimant to obtain leave to introduce additional list of document, I am not unmindful Order 3 Rule 9 (d) that says a Complaint shall be accompanied by a list and number of copies of documents and other exhibits to be tendered at the trial. However, the rules of this court condone non compliance where the justice of the case so demands, in my humble view this is one of such cases. It follows therefore that although the Claimant did not obtained the leave of this court to introduce Exhibit CWE-E3, the fact that it has been pleaded in the Claimant’s reply to the Defendant’s statement of defence makes it admissible on this ground at least. I so find and hold.
On the defendant’s second grand of objection that nowhere in Exhibit CWA – A1 (claimants witness statement on oath) was Exhibit CWE – E1 mentioned, I think this has to do with the probative value to be attached to the Exhibit CWE –E1 and not its admissibility which shall be determined along with the merit of the claimants case. I so find and hold.
On noncompliance with S.84 of the EA by Exhibit CWE –E3, it seems to me that the Defendant is not challenging the authenticity of Exhibit CWE – E3 but its non-compliance with S. 84 (2) of the Evidence Act 2011, i,e, failure to file certificate of compliance. This court, is by the law establishing it, required not to be too formal and may in the interest of justice depart from the provisions of the Evidence Act. As the defendant is not saying that Exhibit CWE – E3 is fake, it is my humble view which I hold that this court can, under section 12(2)(b)of the NIC Act 2006, and in the interest of justice, dispense with the requirement of certification under the Evidence Act. See Mrs. Bessie Udiedle Ozughalu & Ors. V. Beresurentas Nigeria Limited (unreported) Suit No. NICN/LA/626/14. Accordingly, I find no merit in the defendant’s objection on the admissibility of Exhibit CWE-E3 and same is overruled.
I shall now proceed to determine the merit of this suit. In Labour Relations, an employee can only claim if he/she shows an entitlement, and entitlement is shown by reference to the law that gives it. See Mohammed Dungus & Ors V. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39.
As stated before now, the claimant’s main claims are for the arrears of four month salaries in the sum of N600, 000 (Six Hundred Thousand Naira) for the months of November 2006, January, February and March, 2017 and operational allowance for November, 2016, January, February and March, 2017 at the rate of N40,000 (Forth Thousand Naira) per month, total of which amounts toN120, 000 (One Hundred and Twenty Thousand Naira ).
The Defendant had in paragraph 9 of its statement of defence admitted liability for only two month salaries i.e N300, 000 (Three Hundred Thousand Naira only) as opposed to four month salaries because the claimant has failed to give one month notice of his resignation and had stopped working from the end of February 2017. The defendant had thereby joined issues with the claimant and because the claimant’s claim is in form of special damages, the defendant’s admission of liability for two months salaries will not absolve the claimant of the burden of proving same. See.University of Ilorin Teaching Hospital v. Dr. Dele Abegunde (2013)LPELR-21375 (Pp. 42-43 paras. F-E)
In a bid to prove his claim against the defendant, the claimant tendered Exhibit CWB – B1 which gave the total monthly remuneration of the claimant at N150, 000 (one hundred and fifty thousand naira only) (Basic salary, medical allowance, leave allowances, transport allowance and Housing allowance). The claimant then averred in paragraph 4 (four) of the statement of facts that he was placed on monthly salary of N150, 000 (one hundred and fifty thousand naira only) excluding allowances and other incidental payments, the claimant also maintained this in paragraph 4 (four) of Exhibit CWA –A1. However, under cross examination, the Claimant said that the sum of N150, 000 (one hundred and fifty thousand naira only) included his allowance.
Apart from Exhibit CWB-B1, there is nothing placed before this court by the Claimant to substantiate his averment in paragraph 4 of his statement of facts that the sum of N150, 000 excludes the claimant’s allowances. From the contents of Exhibit CWB-B1 which I carefully perused it is glaringly clear that the claimant’s total monthly emoluments (Basic salary, medical allowance, leave allowances, transport allowance and Housing allowance) is N150, 000 (one hundred and fifty thousand naira only). In other words, the sum of N150, 000 includes the Claimant’s allowances. I so find and Hold.
Relief (a) is for the sum of N600, 000 being the arrears of the claimant’s four months’ salary (November, 2016, January 2017, February, 2017 and March, 2017) at the rate of N150, 000 (One Hundred and Fifty Thousand Naira) per month, in proof of this relief, the claimant tendered Exhibit CWB – B1 which as I held above, put the Claimant’s total monthly emoluments at N150, 000 (one hundred and fifty thousand naira only). By Exhibit CWB – B1, should the claimant wishes to cease to be in the Defendant employment, the claimant is required to give one month notice or one month salary in lieu of notice.
Exhibit DWC is the claimant’s letter of resignation where in paragraph one the claimant stated thus:
“I hereby resigned my appointment of 16th March, 2016 as the Deputy General Manager (operation) of Sovereign Guards Limited with Effect from 1stApril, 2017, in forfeit one month’s salary in lieu of notice”.
It is not clear from the first paragraph of Exhibit DWC above if the Claimant was by that statement, giving a one month notice in lieu of one month salary or was actually forfeiting one month salary in lieu of notice; I think the two options cannot be exercised simultaneously by the claimant. The claimant said “I hereby resign my appointment of 16thMarch 2016 as a Deputy General Manager (operation) of Sovereign Guards Limited with effect from 1st April 2017” the claimant added in the said paragraph “in forfeit one month salary in lieu of notice”.
It is the claimant’s contention that having given notice of resignation (Exhibit CWC) with effect from 1st April, 2017; he is entitled to salary for March 2017. Although Exhibit DWC is undated, the averment in paragraph 5 of the defendant’s statement of defence by which the defendant admitted the receipt of the claimant‘s letter of resignation of 28th of February 2016 seems to satisfy the requirement of the law because it is trite that resignation takes effect from the date it was received by the person or authority to whom it is addressed. See Yesufu V Government of Edo State (2001) 3 NWLR (pt. 731)517 S.C.I find and I so hold.
It is the claimant’s further contention that when he submitted the notice of resignation on 28th February, the defendant’s Chairman/Chief Executive had asked him to stop working with immediate effect and by that directive; the claimant was prevented from working for the month of March, 2017. The claimant however said under cross examination that he was not given any letter to stop coming to work. There is no evidence before this court that the claimant was indeed ordered to stop working by the defendant’s Chairman/CEO from the date he submitted his letter of resignation, the claimant’s assertion has not been backed by evidence in any form, I therefore find it difficult to believe that the claimant was asked to stop coming to work by the defendant from 28th February, 2017. The law is firmly settled that he who assert must prove. See Hillary Farm Limited & Anor.V. M.V Mahtra & Ors.(2007) LPELR 1365 (Pp. 28-29, paras. G-A)
It is clear that the claimant had stopped working from 28th February 2017. The Claimant, having given notice to resign from the defendant’s employment on 28th of February 2017 with effect from 1st April 2017 and at same time agreeing to forfeit one month salary in lieu of notice and stopped working on 28th February 2017, the only inference for this court to draw in the circumstance is that the claimant had worked for the defendant up to the end of February 2017 as the defendant rightly argued. The claimant is not therefore entitled to salary for the month of March 2017 having not worked for it. It follows from the above, that the claimant has forfeited his February 2017 being the last month the claimant had worked for the defendant. Relief (a) therefore succeeds in terms of two month salaries only; I find and I so hold.
On relief (b), i.e. claim for arrears of operational allowance to the tune of N120, 000 (one hundred and twenty thousand naira only) for the months of November, 2016, January and February, 2017, it is the claimant’s contention that it was orally agreed and that the contractual agreement between the parties was both oral and written. The claimant submitted under cross examination that beside Exhibit CWB – B1, there is no any other document that governed the contraction relationship. The claimant has not led evidence to prove the oral aspect of his agreement with the defendant which the claimant said had formed the basis of the payment of the operational allowance. The claimant pleaded Exhibit CWE – E3 which shows transactions recorded from 1st April 2016 to 31st July 2016, a period of only four months out of the 12 months the claimant had worked for the defendant, even in respect the said four months, the claimant had failed to lead evidence to show where in Exhibit CWE –E3 the said operation allowance was paid to him by the Defendant. The Claimant merely pleaded Exhibit CWE-E3 and claims that a right inures in it without leading evidence to indicate where the said operational allowance was paid to him. It is not for this court to investigate the evidence for the claimant from Exhibit CWE – E3, it is for the claimant to lead evidence to prove same. See Lawal v. Aliyu (2014) LPELR (Pp. 12, paras C-E). I therefore agree with the submission of the learned counsel for the defendant that the only evidence of the claimant before the court is Exhibit CWA –A1 (claimant witness statement on oath) and there is nowhere in Exhibit CWA –A1, where Exhibit CWE –E3 (claimant’s statement of account) was mentioned or linked to the claimant’s case. In other words, the claimant has failed to lead evidence to show where in Exhibit CWE – E3 the Defendant paid the operational allowance which the claimant averred in paragraph 1 of his reply to the defendant’s statement of defence. It is trite and an elementary rule of pleadings that an averment in the pleadings on which no evidence is led or called in proof is deemed to have been abandoned. See Olokunlade & Anor. V. Samuel & Ors. (2010) LPELR 3942 (CA).That being so, Exhibit CWE-E3 is hereby discountenanced.
I agree with the submission of the learned counsel for the defendant that one would be tempted to ask why did claimant not tender his statement of account for August, September and October, 2016, I wish to add here, December, 2016 to show that the acclaimed monthly operational allowance of N40, 000 (Forty Thousand Naira) has been constantly paid in to his account. I also agree with the learned counsel for the defendant that in the absence of such vital evidence this court may find and hold that such evidence which the claimant could produce and is not produced, would if produced, be unfavourable to the claimant who would holds it, I so find and hold. See Section167 (d) of the Evidence Act 2011. That being so, Exhibit DWE-E1 having not been linked to the claimant’s relief (b) is hereby discountenanced. The claimant, in my humble view, has failed to prove any agreement between himself and the defendant for the payment of operational allowance of N40, 000 (forty thousand naira only) per month, accordingly, relief (b) is accordingly not grantable; I find and I so hold.
Relief (c) is for the sum of N400,000 (Four Hundred Thousand Naira) being the solicitor’s fee for prosecuting this case, while relief (d) is for the sum of 500,000 (Five Hundred Thousand Naira) as general damages. By their nature, relief’s (c) and (d) are ancillary to the main reliefs i.e reliefs (a) and (b). Having held that relief (b) have not been proved and relief (a) succeeds in terms of two month salaries of the claimant which amounts the defendant by Exhibit DWE E1 dated July 26th, 2017 at paragraph 4 thereof, offered to pay the claimant even before the claimant had filed this suit on September 15th, 2017, and the claimant having failed to prove the excess of the admitted sum, it is my humble view which I find and hold that the reliefs (c) and (d) being ancillary to the main reliefs have equally failed and are therefore not grantable.
On the whole, for all the reasons given, I hold that the claimant’s case succeeds in part, i.e in terms of the claimant’s salaries for the months of November 2016 and January 2017, and for the avoidance of doubt, it is hereby ordered that within 30 days from the date of this judgment, the defendant shall pay the claimant the sum of N300, 000 (Three Hundred Thousand Naira only) being the adjudged sum.
Judgment is entered accordingly. I make no order for cost.
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HON. JUSTICE MUSTAPHA TIJJANI
JUDGE
