Mr. Akindele Adedipe -VS- Oracle Software Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: MAY 15, 2019 SUIT NO. NICN/LA/214/2016

BETWEEN

Mr Akindele Adedipe – Claimant

AND

Oracle Software Nigeria Limited – Defendant

REPRESENTATION

Olukayode Balogun, for the claimant.

Nduka Ikeyi, with U. S. Ogbuagu, Abdullateef Abdul and Ms Yetunde Oyeyipo, for the defendant.

JUDGMENT

INTRODUCTION

1. The claimant filed this suit on 29th March 2016 vide a complaint with the accompanying statement of facts, list of witnesses, statement on oath, list of documents and copies of documents to be relied upon at the trial. The claimant is praying for the following reliefs:

(a) A declaration that the claimant is entitled to the sum of N5,615,000.00 being shortfall of sales commission payable as agreed Compensation Plan payable to him upon his resignation from defendant’s employment.

(b) Cost of this suit assessed at N1,000,000 (One Million Naira).

(c) Interest on the total judgment sum at a commercial lending rate from June 8, 2015 until date of judgment and thereafter at 30% per annum till the judgment debt is liquidated.

2. The defendant entered formal appearance and then filed its statement of defence, list of witnesses, written statement on oath, list of documents and copies of the documents. In reaction, the claimant filed a reply to statement of defence and statement on oath. By order of this Court granted on 25th October 2017, the defendant was permitted to amend its defence processes. The claimant responded by filing a reply to the amended statement of defence and a further witness statement on oath on 15th November 2017. The claimant would, however, adopt his deposition of 22nd December 2016, not that of 15th November 2017.

3. At the trial, the claimant testified on his own behalf as CW, while Ayotunde Ayobani Afolabi, the HR Manager of the defendant, testified as DW for the defendant. The claimant’s frontloaded documents were admitted and marked as Exhibits C1, C2, C2(a), C2(b), C3, C3(a), C4, C5 and C6. The defendant’s were admitted and marked as Annexure OSNL1 to OSNL7. The defendant indicated that it had issues with the claimant’s Exhibits C2, C3 and C4, to which the Court asked parties to address all issues as to admissibility and/or evidential value in their respective final written addresses. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 20th December 2018, while the claimant’s was filed on 23rd January 2019. The defendant’s reply on points of law was filed on 27th February 2019.

THE CASE BEFORE THE COURT

4. The claimant was employed as Technology Sales Representative on August 1, 2011 at the defendant’s office in Lagos which is a fully owned subsidiary of Oracle Software Limited in the United States. To the claimant, his letter of employment stipulated that 50% of the compensation plan is a fixed salaried payment while the other 50% of the compensation package is termed variable and is predicated on attainment of set revenue targets which is prorated accordingly to percentage attainment. That in the course of the Financial Year 2015, the claimant agreed a compensation plan based on a target of $2.44 million but he however concluded sales transactions worth approximately $5.2 million which is over and above his agreed target entitling him under the Compensation Plan to $175,516.00 gross payout of which $140,420.00 (less estimated 20% tax) was due and payable to him at the prevailing official exchange rate of N198 to $1. That he discovered upon his resignation from the defendant’s employment on June 8, 2015 that the defendant had adopted a lower rate of N158 to $1 as the exchange rate in computing the sales commission at a time when the exchange rate was N198 to $1. The claimant accordingly commenced this suit praying for the reliefs already listed out.

5. To the defendant, the claimant resigned from his employment on 8th June 2015 and the defendant paid him all remuneration due to him under his employment letter. The claimant, however, claimed that there had been a shortfall in the sales commission paid to him for the 2015 financial year owing to the defendant adopting an exchange rate different from the “prevailing official exchange rate of N198 to $1”, which claim the defendant submitted as lacking merit.

THE SUBMISSIONS OF THE DEFENDANT

6. The defendant first raised two preliminary points: that the reply to the statement of defence and the claimant’s statement on oath all filed on 15th November 2017 should be discountenanced; and Exhibits C2(b), C4 and C6 are inadmissible and/or have no probative value. On the first preliminary issue i.e. the reply processes, the defendant submitted that the further statement on oath was not adopted as evidence by the claimant and so should be discountenanced. That the law is that unless a witness adopts his statement on oath in open court and is cross-examined on it, such statement on oaths useless, citing Idris v. ANPP [2008] 8 NWLR (Pt. 1088) 1 at 97 and James v. INEC & ors [2013] LPELR-20322(CA). This being so, that the reply to the statement of defence, now unsupported by any evidence, is pleadings without evidence and so should be deemed to have been abandoned, citing Ojekan v. Oyewole [2011] LPELR-4517(CA) and Onyenwe & anor v. Anaejionu [2014] LPELR-22495(CA). The defendant then urged the Court to discountenance the further statement on oath and the reply to the statement of defence.

7. On the admissibility of Exhibits C2(b), C4 and C6, the defendant submitted that they are liable to be expunged as they are inadmissible and/or lack probative value. That Exhibit C2(b) i.e. demand notices to CEO and HR Oracle for shortfall of sales commission, is computer generated, which is not certified in accordance with section 84(4) of the Evidence Act 2011 and so should be expunged, citing Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 and FRN v. Ojo & anor [2018] LPELR-45541(CA). As for Exhibit C4, a statement of accent from Guaranty Trust Bank Plc (GTB), that it is an extract from a banker’s book, in respect of which the claimant failed to comply with the strict provisions of section 90(1)(e) of the Evidence Act 2011. That Exhibit C4 comes within the meaning of banker’s book under section 258 of the Evidence Act 2011, citing FRN v. Fani-Kayode [2010] 14 NWLR (Pt. 1214) 481 at 498 and Unity Life & Fire Insurance Company v. International Bank for West Africa Ltd [2001] 7 NWLR (Pt. 713) 610 at 501-502. That a banker’s book can only be tendered upon the satisfaction of the conditions stated in section 90(1)(e) of the Evidence Act, conditions the claimant failed to comply with. That even if admitted, Exhibit C4 has no probative value given that no evidence was led to show that the book form which it was extracted is in the custody of the bank, citing UBA Plc v. Uzochukwu [2017] LPELR-42787(CA). On Exhibit C6 (the invoice for legal fees), that it was not pleaded and is undated; as such it is inadmissible, citing Fadlallah v. Arewa Textile Ltd [1997] 8 NWLR (Pt. 518) 546, Sadhwani v. Sadhwani (Nig) Ltd [1989] 2 NWLR (Pt. 101) 72 at 81, Garuba v. KIC Ltd [2005] 5 NWLR (Pt. 917) 160, Omega Bank (Nig) Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 547, Jinadu v. Esuromobi-Aro [2009] 9 NWLR (Pt. 1145) 55 and Abdullahi v. State [2016] LPELR-43753(CA).

8 The defendant then submitted three issues for determination:

(a) Whether the claimant is entitled to a declaratory relief for the sum of N5,615,000.00 as alleged shortfall of sales commission payable to him upon his resignation from the defendant’s employment;

(b) Whether the claimant is entitled to the costs of this suit in the sum of N1,000,000 or at all; and

9. For issue (a), the defendant submitted that the claimant is not entitled to a declaratory relief for the N5,615,000.00 as alleged shortfall sales commission payable to him upon his resignation for the following reasons:

(1) The pleadings and evidence of the claimant are bereft of facts needed to sustain his monetary claim of N5,615,000. Citing Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, Mr Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012, the judgment of which was delivered on 28th January 2016, Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014, the judgment of which was delivered on 24th January 2017, Karl Omatsola v. Mobitel Ltd unreported Suit No. NICN/LA/08/2013, the judgment of which was delivered on 10th February 2017 and Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, all of which lay down that in monetary claims in a case of this sort, the claimant must prove entitlement to the claim (often by reference to the instrument i.e. law, circular or collective agreement that confers it) as well as how he came by the quantum of the claims, the defendant submitted that the claimant has not so proved his entitlement to the sum of N5,615,000. That the claimant merely alleged that in financial year 2015, he made sales transaction of $5.2m in favor of the defendant and that he was entitled to gross payout of $175,516 or net payout of $140,420 in consequence thereof under the composition plan. The defendant conceded that the claimant did close out sale transaction of $5.2m in financial year 2015. However, that the claimant needed to plead and prove the formula he applied in arriving at his conclusion that such sales transaction entitled him to “gross payout of $175,516 or net payout of $140,420” and that whatever formula he used is based on the compensation plan applicable to him. Also that he needed to plead and prove how much he was actually paid in commission for financial year 2015 in order to demonstrate how he arrive at N5,615,000 as outstanding to him. That the claimant failed in pleading and proving all these facts, and so relief (a) must fail.

(2) The payment of any commission under the compensation plan was a matter of discretion and not obligatory under the employment letter. That the compensation plan, which is different from the annual salary of the claimant, was a discretionary arrangement put in place by the defendant; and the claimant’s participation in the arrangement (as well as the making of payments thereunder) was at the sole discretion of the defendant; referring to Exhibit C1/Annexure OSNL1 especially the heading “Individual Compensation Plan” at page 2. That the only obligatory payment required of the defendant is the annual salary comprising a fixed income part (N9,000,000), variable income part (of not more than N9,000,000) and logistic support allowance (of N1,896,000), the total of which is N19,896,000. That once the claimant is paid this total sum of N19,896,000 in any financial year, he is not entitled to any further payment in that year as a matter of right. That the claimant missed the point when under cross-examination he testified that “the part at page 2 of Annexure OSNL1 dealing with ‘Variable Income’ is a clause that grants me entitlement to Sales Commission, as well as Individual Compensation Plan on same page”. That the Court should note that it is not the claimant’s case that he was not paid up to a total of N19,896,000 in salary for financial year 2015, the claimant having even acknowledged that he was paid a total of N22,186,360 i.e. the Naira equivalent of $140,420 converted at N158 per dollar as commission alone in financial year 2015, which did not include his annual salary. Accordingly, that the claimant is not entitled to relief (a).

(3) The claimant’s employment contract was denominated in Naira, not USD, referring to page 2 of Exhibit C1, which did not provide payment of monetary entitlement to the claimant in other than the Naira. Citing Mr Godwin Agbone v. Nulec Industries Ltd unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered 2nd February 2014, which held that it is a notorious fact that salaries are in the main paid and evidenced vide pay slips, the defendant submitted that it consistently issued pay-slips to the claimant showing payment in Naira, not USD, referring to Annexure OSNL2. That the pay-slips do to in any way show that the claimant is entitled to any payment in USD, urging the Court to so hold.

(4) The defendant’s fixed foreign exchange rate for financial year 2015 applied to its internal operations. To the defendant, the claimant’s employment contract did not denominate any of his earnings in USD; as such the issue of foreign exchange rate does not arise. That even if it did, the defendant’s fixed rate for financial year 2015 i.e. N162.80 applied to its internal operations to the exclusion of any other exchange rate. That by Exhibit C1/OSNL1, under the heading “Individual Compensation Plan” at pages 2 to 3, it is provided that the “terms and conditions of commission plan are determined by the [defendant] at its discretion”. The the phrase “terms and conditions” include any foreign exchange rate for any payment under the commission plans; as such, the defendant is entitled to fix and apply its exchange rate for its internal operations. Also that section 9 of the Foreign Exchange Monitoring and Miscellaneous Provisions) Act (Foreign Exchange Act) provided that “the rate at which each transaction in the Market shall be executed shall be the rate mutually agreed between the applicant purchaser and the Authorised Dealer or Authorised Buyer concerned”. To the defendant, although the transaction between the claimant and the defendant was not a transaction in the “Market” as contemplated under the Foreign Exchange Act, the sport of section 9 is that the regulatory regime for foreign exchange transaction in Nigeria admits of more than one exchange rate; and that the parties to an exchange transaction in Nigeria are free to set the rate at which they would execute their transaction. Consequently, that the claimant having accepted the terms of his offer of employment as contained in Annexure OSNL1, the parties have agreed to any exchange rate to be fixed by the defendant for the purpose of payment of commissions. That the claimant’s reference to a CBN exchange rate is, therefore, misconceived as the said CBN exchange rate is not binding on the parties in their internal transaction by the general scheme of the regulatory regime for determining exchange rates in Nigeria given section 9 of the Foreign Exchange Act. Thus, that assuming without conceding that the claimant’s employment contract was denominated in USD, the defendant’s fixed rate applied to its internal operations including payment of commission to the claimant, urging the Court to so hold.

(5) It is illegal for the claimant and the defendant to have denominated any part of the claimant’s compensation including commissions in USD given the both the claimant and the defendant are Nigerians. The defendant advanced this point as an alternative argument. The defendant relied on sections 15 and 20(1) of the CBN Act Cap C4 LFN 2004, as well as Annexures OSNL4 and OSNL5 (two circulars of CBN, which to the defendants reiterate the point that it is illegal for the claimant and the defendant to contract in a currency other than the Naira). That the circulars in particular provide that it is illegal for the price pf a contract or service to be denominated in a foreign currency i.e. currency of obligation or to be paid in any currency other than the Naira, where such contract or service is to be performed in Nigeria between Nigerian parties, and/or for anyone to insist on receiving payment in any currency other tan the Naira in Nigeria. Thus that where the claimant insists on the existence of a contract or commission plan between him and the defendant, which was denominated in USD, then the contract including the commission payable under it, is illegal for having been made in violation of the CBN Act. To the defendant, an illegal contract is void and, therefore, not enforceable against any of the parties, citing Altimate Inv. Ltd v. Castle & Cubicles Ltd [2008] All FWLR (Pt. 417) 124 at 130 and Ekwunife v. Wayne (West Africa) Ltd [1989] LPELR-1104(SC). In consequence, that it is illegal for the claimant and the defendant to have denominated any part of the claimant’s earnings particularly the sales commission in USD or other foreign currency, urging the Court to so hold.

10. Issue (b) is whether the claimant is entitled to the costs of this suit in the sum of N1,000,000. To the defendant, the cost being asked for is synonymous with attorney’s or solicitor’s fee especially if Exhibit C6 (the invoice from the law firm), and inadmissible document, is taken into account. This aside, that a claim for cost of prosecution of a suit cannot be granted because it is against public policy to do so, citing Guinness (Nig) Plc v. Nwoke [2000] 15 NWLR (Pt. 689) 135 at 150. Consequently, that the claimant is not entitled to relief (b), urging the Court to so hold.

11. Issue (c) is whether the claimant is entitled to pre-judgment interest and/or interest on the judgment sum. To the defendant, in the absence of any specific monetary claim in this suit (as distinct from the declaratory relief sought by the claimant), relief (c0 must necessarily fail as no entitlement to “interest on the total judgment sum” will arise. Additionally, that this Court does not award pre-judgment interest, referring to Anthony Obama & 3 ors v. DAAR Communications Plc 7 2 ors unreported Suit No. NICN/LA/360/2012, the judgment of which was delivered on 9th March 2016 and Patrick Obiora Modilim v. UBA Plc unreported Suit No. NICN/LA/353/2012, the judgment of which was delivered on 19th June 2014. In any event, that the claimant has not shown that he is entitled to pre-judgment interest, whether by the pleadings or by evidence, citing Nitel Trustees Ltd v. Syndicated Inv. Holdings Ltd [2014] 6 KLR (Pt. 351) 2837 at 2849. The defendant urged he Court to hold that the claimant is not accordingly entitled to prejudgment interest. And in conclusion, the defendant urged the Court to dismiss this action with substantial cost.

THE SUBMISSIONS OF THE CLAIMANT

12. The claimant first responded to the preliminary issues raised by the defendant. To the claimant, “section 9(1), (2) & (3) of the National Industrial Court (NIC) Civil Procedures Act 2017”, empowers this Court to depart from the provision of Evidence Act in order to ensure that substantial justice is done in every suit. That the courts have consistently held that the era of technicalities have since gone as the courts are now more concerned with the justice of each case, citing Ekpenetu v. Ofegobi [2012] 15 NWLR (Pt. 1323) 276 at 310. That the exhibits referred to by the “defendant” are very relevant to the case of the clamant and will enable the Court to do substantial justice in this case, which is the primary objective of the court of law, citing Ogunbiade v. Sasegbon [1968] NMLR 233. The claimant then urged the Court to discountenance the arguments of the defendant counsel in this regard and consider the said documents as evidence in this suit.

13. The claimant then submitted one issue for determination: “Whether with regards to the facts, circumstances and the evidence led…the claimant is entitled to the reliefs sought”. To the claimant, his case is predicated upon the terms of the contract of employment and the compensation plan. Unfortunately, that the Compensation Plan cannot be tendered in evidence because it was sent as a link in an email in its electronic format and same was assented to by the claimant in same electronic form and forwarded to the defendant on its electronic platform. That his access to the electronic platform has been disabled upon his resignation from the defendant company; he has no physical copy of the agreement and cannot tender same for the Court’s use but proof of its existence and its contents were admitted by the defendant in several paragraphs of the amended statement of defence notably paragraphs 3 to 7. That it is noteworthy that the defendant has not led any evidence to dispute the following assertions of the claimant in his testimony before the Court:

(a) The sales of goods and services by the defendant company were denominated in United States currency, the US Dollar.

(b) Bonuses and commissions were expressed as a percentage of the aggregate sales made by each member of the sales team as well as the claimant.

(d) Payment of bonus was made at the rate of N158-$1, which was unadvised to the claimant and contrary to the Central Bank of Nigeria rate for the relevant period.

14. The defendant had pleaded as follows in paragraph 7 of its amended statement of defence:

…the fixed rate is usually applied by the defendant for its internal operations and the fixed rate for FY15 was One Hundred and Sixty Two Naira, Eighty Kobo to One United States Dollar and this rate was used to compute FY15 payment. The defendant further states that the CBN rate did not apply to its internal operations (such as computing any commissions or bonuses) that were paid to the claimant as part of the Variable income…

To the claimant, this is an admission of the following facts:

(a) That the defendant has an exchange rate policy for its internal operations.

(b) The Internal operation of the defendant is defined to include both bonuses and commissions.

(d) Payment was made in Nigerian Naira against United States Dollar liabilities.

That it is trite law that admitted facts need no further proof and the defendant having admitted the facts of the contents (exchange rate and more importantly that commissions and bonuses) as integral parts of the compensation plan, the claimant need not over-stress the existence of same, citing NNPC v. Klifco [2011] 10 NWLR (Pt. 1255) 275, Ikare Community Bank v. Ademuwagun [2005] 7 NWLR (Pt. 924) 209 and Ogolo v. Fubara [2003] 11 NWLR (Pt. 831) 231.

15. The claimant urged the Court to note that the defendant has acknowledged the existence of the Compensation Plan and by the defendant’s own admission in paragraph 3(b) of its amended statement of defence dated October 31, 2017, “The employment letter also provided for an additional compensation plan under which the claimant may be entitled to commissions or bonuses at the discretion of the defendant”. In paragraph 3(c), it stated that: “The Compensation Plan was sent as a link in an email and published on the defendant’s internal platform…the commissions, which were payable at the defendants discretion under the compensation plan were different from the variable income”. The claimant then asked the Court to draw the following inferences:

(a) The defendant has control and access to the platform upon which the Compensation Plan was sent and assented to by the claimant.

(b) It exists in electronic form for the sole and singular purpose of the claimant accepting the compensation plan as sent on the same defendant’s internal platform. It is strictly an electronic document and is stored on the defendant’s platform in electronic form.

(d) The claimant has no further access to this electronic platform and cannot provide the Compensation Plan or copy thereof for the Court’s perusal.

(e) The claimant brought an application to subpoena the defence witness to tender the compensation plan. This was opposed by the defendant’s counsel and was upheld by the Court on the basis that the defence witness cannot also be a witness for the claimant.

(f) The onus of proving the content of the compensation plan and or denying the claims in the statement of facts has, therefore, shifted to the defendant.

16. The claimant relied on section 167 Evidence Act 2011 and COP v. Tobin [2009] 10 NWLR (Pt. 1148) 62 at 105, and then submitted that it is the law under section 167(d) of the Evidence Act, 2011 that a Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of a particular case and in particular, the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. That what this means is that, where a document is in the custody of a party, that party owes it a duty to produce such a document before the Court. Where such a party fails to do so, it raises the presumption under section 167(d) of the Evidence Act that if produced, it would be unfavorable to him. That the defendant, having admitted the existence of the compensation plan, should have produced it for the use of the Court and in rebuttal of the claim that the bonus payment was expressed as a percentage of sales in United States dollars.

17. The claimant proceeded to ask:Is the claim for payment illegal and would the defence of illegality avail the defendant? In answer, the claimant asserted that his claim for payment against the defendant is not in United States Dollars but its equivalent at the applicable date and rate in Naira, referring to paragraphs 3 and 4 of his claim:

3. The Claimant states that he agreed a salary/compensation plan with the Defendants which was split equally in to fixed and variable parts and subjected to taxes and all related deductions.

4. The claimant states that 50% of the compensation plan is a fixed salaried payment while the other 50% of the compensation package is termed variable and is predicated on attainment of set revenue targets which is prorated accordingly to percentage attainment.

To the claimant, the Compensation Plan was expressed as a percentage of sales but payment is in Naira and as such sections 15 and 20 of the CBN Act, and Annexures OSNL4 and OSN 5 (CBN circulars) do not apply to the transaction between the parties as the claimant seeks to enforce his entitlement in Naira and not United States Dollars. More so, the remuneration within the agreement was expressed in Naira. Te claimant referred to West Construction Co. Ltd v. Santos M. Batalha [2006] LPELR-SC 168/2002, which held that before e claim can be said to be ex-facie tainted with illegality, it must be clearly apparent and unequivocal from the claim that what the court is called to entertain is illegal and in breach of a specific statute or law. That the case further held that no one can take advantage of his own wrong and the Court should not allow itself to be used as an instrument of fraud, citing also Enekwe v. IMB [2007] AFWLR at 1081.

18. The claimant went on to address that relevance/irrelevance of the Internal Memo on Exchange Rate Policy. That Annexure OSNL3 is in two parts and both are at variance with each other. To the claimant:

(a) The defendant received payments for goods and services in respect of all transactions that constitutes the sales attainment of $5,236,788.41 in United States Dollars at the then prevailing exchange rate and not its alleged internally advised currency rate.

(b) No actual proof of receipt of the internal memorandum (Annexure OSNL3) has been shown against the claimant as he was not one of the recipients of the electronic mail.

(c) The onus of proving actual notice and or receipt of the correspondence by the claimant is upon the defendants and same has not been discharged.

(d) Neither constructive nor imputed notice has been proven upon the claimant.

(e) Moreover, the exchange rate purported to have been used in computing the payments made to the claimant as part of his final entitlement is at variance with the actual payments made by defendants and received by claimant.

(f) The computation of payment was made at the rate of N158-$1 and not N162.8-$1 as the defence asserts.

(g) The defence has not rebutted the inference neither did it lead evidence to show that payment made was at the rate of N162.8-$1.

(h) The witness for the defence, Ayotunde Afolabi, in his evidence, admitted on oath that Annexure OSNL3 was not addressed nor copied to the claimant.

(i) The witness could not also explain why both internal memos were addressed to different parties and at various dates.

(j) The memo of May 28, 2014 which forms part of OSNL3 is actually a comparison of rates between financial years 2014 and 2013 and is not a computation of rates.

(k) The last pay slips of June and July 2015 (OSNL2), which evidences the payment made to the claimant as part of his final entitlements, shows clearly that payment of bonuses and commissions was effected in the succeeding financial year 2015/2016 (Financial Year 2016) and not 2014-2015 (Financial Year 2015).

(l) The basis of calculation for the financial year 2015/2016 is not exhibited for the purpose of comparison and no document is exhibited to show what the rate for that period was.

19. The defendant had argued that it has an inherent right under the contract of employment to exercise discretion regarding payment of bonus and or right to determine the size of an employee’s bonus. To the claimant, the requirement of honesty and good faith seem clear enough; the party afforded the discretion under the contract of employment (the defendant) must properly direct itself to the task in hand and should not exercise the discretion in question in furtherance of an ulterior motive. That the Courts have always implied as a matter of necessity, a standard to which the defendant must adhere, even where the discretion is expressed to be absolute. That the person exercising a contractual discretion must do so honestly and in good faith, and having regard to the provisions of the contract by which it is conferred. The discretion must not be exercised arbitrarily, capriciously or unreasonably, citing Singer v. Nordstrong Equipment Ltd [2017] O.J. No. 5191, 2017 ONSC 5906,where the Court held thus: “Stipulating that a bonus is discretionary in the policy doesn’t necessarily give the employer complete freedom to withhold the bonus. Rather, discretionary bonuses must be awarded through a “fair, identifiable process”. Also that Robert Ekwunife v. Wayne West Africa [1989] LPELR SC 200/1986 stated thus:

It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion on the one hand and a judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient reason, the latter is that exercise of it with sufficient, correct and convincing reason. Judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.

20. The claimant continued that generally, the burden of proof in civil cases lies on that person who would fail if no evidence at all were given on either side. However, that the claimant successfully discharged the burden placed by the law and thus is entitled to the reliefs sought as per the complaint and the statement of facts. That it is trite law that in a civil suit like in the instant case the burden placed on the claimant to discharge is proof upon the balance of probability, relying on Okubule v. Oyagbola [1990] 4 NWLR (Pt. 147) 723 where the Court held that the burden of proving a particular fact is on the party who asserts it. That this onus, however, does not remain static in civil cases; it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion, the proper order which the Court should make is one of dismissing the assertion, relying further on Ike v. Ugboaja [1993] 6 NWLR (Pt. 301) 539. In conclusion, the claimant urged the Court to find for him and uphold the claim.

THE DEFENDANT’S REPLY ON POINTS OF LAW

21. The defendant identified six points of the claimant that require its response.

(1) Section 9(1), (2) and (3) of the “National Industrial Court Civil Procedure Act 2017” (sic) empowers this Court to depart from the provision of the Evidence Act in order to ensure that substantial justice is done in every suit and the exhibits referred to by the defendant are relevant to the case of the claimant and will enable the Court to do substantial justice in this case. To the defendant, this argument of the claimant is misconceived and misleading. First, that it is section 12(2)(b) of the National Industrial Court (NIC) Act 2006 that allows the Court to depart from the Evidence Act. Even at that, it provides that the Court shall be bound to the Evidence Act; as such, this Court is bound by the Evidence Act but has the discretionary power to depart from it in the interest of justice, citing Mainstreet Bank Registrars Ltd v. Etim [2016] LPELR-40556(CA). That this discretionary power must be exercised judicially and judiciously. And it is for the claimant (and he failed) to demonstrate how he is entitled to the exercise of the Court’s discretion by placing sufficient materials before the Court to justify the exercise of the discretion, citing Oni v. Fayemi [2008] 8 NWLR (Pt. 1089) 400 at 440-441. The defendant went on that the rules of evidence, practice and procedure, which hinder the admissibility and or reliance on the reply, further witness statement on oath of the claimant, Exhibits C2(b), C4 and C6 are the very instruments by which the Court attains “substantial justice” in the adjudication of matters before it, citing Sanusi & ors v. Odugbemi & anor [2017] LPELR-43377(CA), which qualified the technicality frowned on by the law to be undue technicality.

(2) The contents of the Compensation Plan were allegedly admitted by the defendant in its amended statement of defence and, therefore, need no further proof by the claimant. AND the onus of proving the contents of the Compensation Plan and or denying the claims in the statement of facts shifted to the defendant who having allegedly admitted the existence of the Compensation Plan should have produced it. The defendant took these two issues together; and submitted that the two points by the claimant are misconceptions of the applicable law. That the claimant has the obligation to prove his assertions/claims before the Court including the contents of the material documents that he relies on, which he may prove either by primary or secondary evidence as the Evidence Act may allow. That the defendant has no obligation to assist the claimant in this regard. That the defendant did not in its amended statement of defence admit the contents of the Compensation Plan as the claimant alleged, only the existence of the Compensation Plan. As such, while the claimant is relieved of proving the existence of the Compensation Plan, he is not regarding its contents. That since section 85 of the Evidence Act allows the contents of a document to be proved either by primary or secondary evidence, and primary evidence by section section 86(1) means the document itself, by sections 89 and 90(1)(d) of the Evidence Act, what the claimant did in paragraphs 6 and 7 of his written address was to state the conclusion of facts none of which follows whet he said are averments in paragraphs 3 to 7 of the amended statement of defence. In any event, that none of the conclusion of facts are alleged to be the contents of the Compensation Plan; rather, they are events alleged to have happened between the defendant and the claimant in the course of the claimant’s employment or following the termination thereof. The defendant then stressed that the onus of proving the contents of the Compensation Plan (the facts upon which the legal right of the claimant or the liability of the defendant to him depended) was at all times on the claimant since it is the claimant that desires that the Court should give judgment in his favour, relying on section 131(1) of the Evidence Act and Col Nicholas Ayanru (Rtd) v. Mandillas Ltd [2007] LPELR-670(SC). Furthermore, that the burden of proof does not shift even when the order to subpoena the defendant’s witness to tender the Compensation Plan was rejected, nor does it shift where the claimant is unable to prove relevant assertions in his pleadings, citing Afolabi v. Alarm [2011] LPELR-8894(CA). That by parity of argument, the failure of the claimant to prove the contents of the Compensation Plan does not ipso facto shift the burden thereof on the defendant. That even when the claimant urged the Court to draw inferences as to the fact that defendant has control and access to the platform upon which the Compensation Plan was sent and assented to by the claimant, the Court is not precluded from drawing inferences but such inferences can only be properly drawn from established, not speculative or presumptive, facts, citing Nyavo v. Zading [2018] LPELR-44086(CA). That the “inferences” postulated by the claimant in his address are unsubstantiated conclusions of fact not inferences; as such no trial Court can draw conclusions of fact outside available evidence, citing Fabiyi v. State [2013] LPELR-21180(CA). Finally, that section 167(d) of the Evidence Act invoked by the claimant does not apply in this case for two reasons: firstly, the claimant by that argument is asking the Court to reopen its decision in its ruling of 24th October 2018 on the matter. The claimant cannot get through the backdoor that which the Court had refused, citing Alhaji Abdulkadir Abacha v. Kurastic Nig Ltd [2014] LPELR-22703(CA). Secondly, even if section 167(d) applies, it does not have the effect which the claimant urges upon the Court. That the authorities are that section 167(d) does not apply to non-production of a document after service of notice to produce, citing Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1, Kajo v. BCC [2013] LPELR-20788(CA), Udeagha v. Omegara [2010] LPELR-3856(CA), Chukwuka v. Nduka [2008] LPELR-3985(CA) and Ainoko v. Yunusa [2008]-3663(CA). The defendant then urged the Court to hold that the burden of proving the contents of the Compensation Plan rests on the claimant and it did not shift to the defendant, and section 167(d0 is inapplicable in this case.

(3) The plea of illegality of a contract cannot be made by a party who has benefited from the performance of the contract, such as the defendant in this case. To the defendant, its plea of illegality was an alternative argument. Nonetheless, that illegality of a contract goes to the issue of the jurisdiction of a court called upon to enforce the contract, referring to Ekwunife v. Wayne (West Africa) Ltd [1989] LPELR-1104(SC); and the aw is that once a court lacks jurisdiction to entertain a suit, it lacks the competence to delve into the merits thereof, citing Okolo v. UBN Ltd [2004] LPELR-2465(SC). Tye defendant then urged the Court to discountenance West Construction Co. Ltd v. Santos M. Batalha [2006] LPELR-SC 168/2002 and Enekwe v. IMB Ltd [2006] NWLE (Pt. 1013) 46 as they are inapplicable to the facts of this case. That the claimant in his contention seems to have confused the attitude of the courts to contracts in respect of matters, which are merely forbidden by the law but without any criminal sanctions (in some cases regarded as unlawful contracts) with contracts in respect of matters, which are forbidden by law at the pain of criminal sanctions. That accordingly, unlawful contract may not be void and unenforceable ab initio, but they may simply be voidable, referring to Fasel Services Ltd v. NPA & anor [2009] LPELR-1245(SC).

(4) The defendant’s internal memorandum o its fixed exchange rate for the currency conversion in the 2015 financial year i.e. Annexure OSNL3 is irrelevant as no proof of receipt was shown against the claimant and the rate is at variance with the actual payment made by the defendant. To the defendant, in civil cases relevance is determined by the pleading set forth for the purpose of tendering a document, citing Asuquo & ors v. Eyo & anor [2013] LPELR-20199(CA). Referring to paragraph 7 of the amended testament of defence, the defendant submitted that Annexure OSNL3 is relevant and that it is immaterial whether or not actual proof of receipt of Annexure OSNL3 is shown against the claimant. That Annexure OSNL3 was not addressed to the claimant; rather it was a document addressed to key officers of the Pracle Corporation in different countries showing the fixed corporate exchange rates for currency conversions for the financial year 2015. That fr purposes of the application of the conversion rate to the claimant’s employment within a financial year, what matters is that the defendant has in fact fixed a rate in accordance with its policy. It does not matter that the defendant did not communicate the applicable rate to the claimant at the time it was fixed. It suffices that at the time of applying the rate to the payment made to the claimant, the rate is communicated to him as the fixed rate for the applicable year. That this is in tandem with the provisions of Annexure OSNL1, which gives the defendant absolute discretion to determine the terms and conditions of commission plans.

(5) There is the requirement that a person exercising discretion under the contract of employment, as the defendant in this case, must not exercise the discretion arbitrarily, capriciously or unreasonably. To the defendant, the claimant appears to concede that the defendant has the inherent right under the contract of employment to exercise discretion regarding he payment of the claimant’s entitlements. That strangely, the claimant argued that there is the requirement that a party afforded the discretion under contract of employment must not exercise the discretion arbitrarily, capriciously or unreasonably. In response, the defendant submitted that the claimant wholly misconstrued the applicable law on the point. That Robert Ekwunife v. Wayne West Africa [1989] LPELR SC 200/1986 relied on by the claimant related to judicial discretional as opposed to rights, privileges and obligations of parties to a contract. That the principle of freedom of contract governs the rights, privileges and obligations in a contract as freely agreed by the parties. Hence, the courts have held that parties are bound by the terms and conditions in a contract they have freely entered into, citing UBA v. Europhina Nig Ltd [1991] 12 NWLR (Pt. 176) 677. As for Singer v. Nordstrong Equipment Ltd [2017] O.J. No. 5191, 2017 ONSC 5096 cited by the claimant, that it is a foreign authority decided by a court in Ontario (a province in Canada) and is, therefore, not binding on this Court, citing Ugbotor v. Ugbotor [2006] LPELR-7612(CA). In any case, that the claimant did not allege or demonstrate that the defendant was unfair in the exercise of its discretion under the employment contract, citing Emueze & ors v. Governor of Delta State & ors [2014] LPELR-23201(CA). That the claimant did not show that the defendant in exercising its discretion in determining the terms and conditions of the Compensation Plan failed to consider relevant facts and the law or unreasonably departed from its earlier precedent or tradition. That the burden is on the claimant who alleged abuse of discretion to plead and prove same against the defendant; and he failed in that regard. That the address of counsel on that point cannot be a substitute for evidence of such abuse of discretion. In any case, having not pleaded any fact to suggest abuse of discretion by the defendant, the claimant cannot lead any evidence on that point as any such evidence led will go to no issue. On the whole, that the defendant was fair to the claimant at all times material to this suit. That in the exercise of its discretion under the employment contract, the defendant paid the claimant N28,506,875.84 as his Variable Income for financial year 2015; as such, the defendant cannot justifiably be said to have “withheld bonus” as indicated in the dictum in Singer. In conclusion, the defendant urged the Court to discountenance all the arguments of the claimant and dismiss the suit in its entirety.

COURT’S DECISION

22. In considering the merits of this case, I start off with the preliminary issues that the defendant raised. The defendant had filed its defence processes in reaction to the claimant’s originating processes. In reaction, the claimant filed a reply to statement of defence and statement on oath. I indicated at the start of this judgment that by order of this Court granted on 25th October 2017, the defendant was permitted to amend its defence processes, to which the claimant responded by filing a reply to the amended statement of defence and a further witness statement on oath on 15th November 2017. At the trial, however, the claimant adopted his deposition of 22nd December 2016, but not that of 15th November 2017. This means that the deposition of 15th November 2017 is not before the Court and so cannot be used in this judgment. In like manner, the reply to the amended statement of defence of 15th November 2017 being pleadings without any supporting evidence (except to the extent that it may be supported by the depositions of 29th March 2016 and 22nd December 2016). When the defendant raised this issue in its written address, the claimant never bothered to offer any reply. I take it, therefore, that the claimant concedes the point to the defendant. Accordingly, the claimant’s deposition of 15th November 2017 shall not be countenanced for purposes of this judgment. I so hold. Same shall be the case with the reply to the amended statement of defence also of 15th November 2017 but only to the extent that it is not supported by any of the depositions already before the Court. I so hold.

23. The defendant prayed the Court to discountenance Exhibits C2(b), C4 and C6 on the ground that they are inadmissible and/or have no probative value. Exhibit C2(b) is an email dealing with the claimant’s request for the payment of his commission. Given section 12 of the National Industrial Court (NIC) Act 2006, this Court has generally accepted emails in evidence without the trappings of section 84(4) of the Evidence Act. See Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which delivered on 7th April 2016, Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017 and Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018. Exhibit C2(b) will accordingly be used as such in this judgment subject of course to what ever weight it carries in terms of the merit of the case.

24. Exhibit C4 is the Guaranty Trust Bank statement of account of the claimant. It is meant to be a 24-paged document but only pages 1, 10, 16, 18 and 21 were frontloaded and tendered before the Court. It is not even tendered as an extract in which event certification as an extract would have been required. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018, this Court held thus regarding the issue of the admissibility of an incomplete document:

Exhibit C3 is actually an incomplete document. The claimant did not tender it as an extract, which would have required certification as such, to warrant it being used as such in this judgment. See Oluwole Olatunji Kolade v. The Industrial Training Fund Governing Council & anor unreported Suit No. NICN/LA/60/2015, the judgment of which was delivered on 14th June 2016. As an incomplete document, the authenticity of Exhibit C3 is in issue. In a similar scenario, this Court in Oyewumi Oyetayo v. Zenith Bank [2012] 29 NLLR (Pt. 84) 370 held inadmissible and of no evidential value an incomplete exhibit on the ground that the fact of being an incomplete document rendered “suspect its authenticity and probative value”. Also, in Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013, this Court rejected incomplete documents and so discountenanced them, holding that they have no evidential value. See also Overland Airways Ltd v. Captain Raymond Jam [2015] 62 NLLR (Pt. 219) 525 and Mr. Godwin Agbone v. Nulec Industries Ltd unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered on 2nd February 2015. In like manner, Exhibit C3 is hereby discountenanced for purposes of this judgment as it has no evidential value.

See further Adesoji Adedokun & 3 ors v. Peninsula Asset Management & Investment Company Limited & anor unreported Suit No. NICN/LA/285/2013, the judgment of which was delivered on 16th July 2018. What all of this means is that Exhibit C4 in the instant case being an incomplete document cannot be countenanced for purposes of this judgment as it has no evidential value. I so hold.

25. Exhibit C6 is an invoice from Solomon-Balogun & Co (Legal Practitioners) evidencing legal fees of N1,000,000 in respect of the instant case, Adedipe Akindele v. Oracle, for which 50% is payable upon retention of services. It is not dated. As an invoice, Exhibit C6 is a document that should be dated. The law is that an undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Exhibit C6, being undated, accordingly has no evidential value. it is hereby discountenanced for purposes of this judgment. I so hold.

26. Relief (a) is the claimant’s principal relief. It a prayer for “a declaration that the claimant is entitled to the sum of N5,615,000.00 being shortfall of sales commission payable as agreed Compensation Plan payable to him upon his resignation from defendant’s employment”. It is when the claimant succeeds in this relief that the question of cost and interest (reliefs b and c) will arise. In other words, reliefs (b) and (c) depend and so are consequential on the success of relief (a). It is in addressing this main claim that the defendant raised a number of issues that require clarification before looking at the question whether the claimant proved the claim in the first place. I shall accordingly first take on those issues raised by the defendant.

27. The claimant had in paragraph 7 of his statement of facts (supported also by paragraph 7 of the claimant’s deposition of 29th March 2016) averred that the sales transaction of N5.2 million he made entitled him under the Compensation Plan to $175,516.00 gross payout of which $140,420.00 (less estimated 20% tax) was due and payable to him at the prevailing official exchange rate of N198 to $1. It was in response to this averment that the defendant in paragraph 6 of its amended statement of defence as well as paragraph 11 of DW’s deposition of 31st October 2017 averred that it was not required by the employment letter or otherwise to denominate any part of the claimant’s annual salary or other compensation in any currency other than the Naira, before converting and paying same to the claimant in Naira, being the currency of obligation and account of the employment contract between the claimant and the defendant. The defendant would even argue that the claimant’s employment contract was denominated in Naira, not USD. For this reason, the defendant averred that it was not required to apply the prevailing exchange rate fixed by the Central Bank of Nigeria (CBN) or any other rate whatsoever in paying the annual salary (or any component thereof) or any commissions to the claimant. In its written address, however, the defendant decided to brand this as an alternative argument. The pleadings and deposition of the defendant do not suggest that this argument is an alternative argument.

28. In arguing that it is illegal for the claimant and the defendant to have denominated any part of the claimant’s compensation including commissions in USD, the defendant relied on sections 15 and 20(1) of the CBN Act Cap C4 LFN 2004 as well as Annexures OSNL4 and OSNL5 (two CBN circulars that to the defendant reiterate the illegally of any contract in a currency other than the Naira). Incidentally, the present counsel for the defendant had raised a similar argument (also as counsel for the defendant) in Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. Counsel in that case referred to but did not frontload the said CBN circulars. So the urging by counsel for the defendant in that case that the Court takes judicial notice of the circulars was rejected since the circulars were not frontloaded. Now, in the instant case, the defendant has frontloaded the circulars and has again asked the Court to take judicial notice of the circulars. Now that the circulars are before the Court, the Court will consider them on merit. The worrying thing, however, is that the defence counsel did not think it fit to even refer this Court to Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited, a case counsel for the defence defended in terms of the issues they presently raise.

29. To the defendant, the CBN circulars specifically provide that it is illegal for the price of a contract or service to be denominated in other than the Naira where such contract or service is to be preformed in Nigeria between Nigerian parties. In particular, that the circulars provide that it is illegal for the price of a contract or service to be denominated in a foreign currency i.e. currency of obligation or to be paid in any currency other than the Naira, where such contract or service is to be performed in Nigeria between Nigerian parties, and/or for anyone to insist on receiving payment in any currency other than the Naira in Nigeria. Thus that where the claimant insists on the existence of a contract or commission plan between him and the defendant, which was denominated in USD, then the contract including the commission payable under it, is illegal for having been made in violation of the CBN Act.

30. I looked through the CBN Act and saw no provision that states that denominating salary/entitlements in other than the Naira is illegal. Section 15 of the CBN Act simply provides thus: “The unit of currency in Nigeria shall be the Naira which shall be divided into one hundred kobo”. Section 20(1) of same Act on its part provides that: “The currency notes issued by the Bank shall be legal tender in Nigeria at their face value for the payment of any amount”. It is noteworthy that section 20(1) did not say that the currency notes issued by the Bank shall be the only legal tender in Nigeria; it merely says that it shall be legal tender in Nigeria. And section 20(5) of the CBN Act, not referred to by the defendant, although referred to in both Annexures OSNL4 and OSNL5, provides thus:

A person who refuses to accept the Naira as a means of payment is guilty of an offence and liable on conviction to a fine of N50,000 or 6 months imprisonment:

Provided that the Bank shall have powers to prescribe the circumstances and conditions under which other currencies may be used as medium of exchange in Nigeria.

A look at these provisions will show that if anything, the CBN Act contemplates that other than the Naira may be a currency of exchange in Nigeria. This is implied from the proviso to section 20(5) of the CBN Act. Section 20(5) in criminalizing the refusal to accept the Naira as a means of payment itself provides the exception(s).

31. Annexure OSNL4 in the third paragraph stated thus: “…it is illegal to price or denominate the cost of any product or service (Visible or Invisible) in any foreign currency in Nigeria and no business offer or acceptance should be consummated in Nigeria in any currency other than the Naira”. Annexure OSNL5 in paragraph 1 reiterated this. Section 20 of the CBN Act talks of payment, not pricing or denomination as Annexures OSNL4 and OSNL5 did. In this sense, Annexures OSNL4 and OSNL5 have gone beyond the wordings of section 20 of the CBN Act. I so find and hold. Consequently, I see nothing against the CBN Act in denominating a payment in other than the Naira but where actually payment is made in the Naira based on the exchange rate provided by the CBN itself. A look at Annexure OSNL5 will show that the CBN itself created exemptions in consonance with section 20(5) of the CBN Act.

32. Annexures OSNL4 dated 17th April 2015 and ONSL5 dated 21st May 2015 themselves are attempts by the CBN to interpret and extend sections 15 and 20(1) of the CBN Act; and the task of interpretation of laws and documents is a judicial function, not an executive one, CBN being an executive body. The point is, a circular cannot override statutory provisions. In Ambassador D. C. B. Nwanna v. National Intelligence Agency & 2 ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16th December 2013, this Court held thus in respect of Exhibit D13/C4 (a circular): “…for without being promulgated as part of the Public Service Rules, the provision of Exhibit D13 (also C4) would not be able to supersede those of the Public Service Rules”; and because “no evidence was led before this Court to show that the qualification (interpretation) of the rule sought to be made by Exhibit D14 [another circular] has been made part of the Public Service Rules by inclusion as is the case in Rule 02810(iv)(a) and (b)…”, the Court equally rejected Exhibit D14. And in Mr Chinweorder Chukwu Awa v. Nigeria Social Insurance Trust Fund [2015] 60 NLLR (Pt. 211) 544, this Court held that “the construction of contracts and statutory provisions is a function of the law courts, not the executive arm of government”. See also Mr Ugochukwu Duru v. First Guarantee Pension Ltd unreported Suit No. NIC/LA/246/2011, the judgment of which was delivered on 2nd February 2015 and Prince Benjamin Saliu Ikani v. Chairman/Chief Executive National Drug Law Enforcement Agency (NDLEA) & 2 ors unreported Suit No. NICN/LA/351/2013, the judgment of which was delivered on 16th July 2018. The talk by the defendant, therefore, relying on Annexures OSNL4 and OSNL5, that it is illegal for the claimant and the defendant to have denominated any part of the claimant’s compensation including commissions in USD is not supported by the CBN Act. I so hold. The defendant cannot transact in USD, collect USD and then turn around to say that it is illegal to have agreed with the claimant to denominate his entitlements in USD. The defendant cannot benefit from the very illegality (having transacted in and collected USD) and then turn around to say the claimant’s entitlement cannot be denominated in the same USD that the defendant collected.

33. All of this means that sections 15 and 20 of the CBN Act, relied on by the defendant to reach the conclusion it did, cannot be said to support the defendant’s conclusions. I held as much in paragraph 68 of Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited:

I must state that sections 15 and 20(5) of the CBN cited by the defendant do not state that denominating salary in USD is illegal. If anything, there is case law authority in which a memorandum of understanding, MOU, (much lower I think in status than a contract agreement in the real sense of the word) allowing for taxation to be in the currency of transaction (even where the taxing statutes denominate taxation to be in Naira) was not only held to be valid and legal, but it had the effect of an MOU altering the clear provisions of statutory law (the taxing statutes). See Shell Petroleum Development Company of Nigeria Limited v. FBIR [1996] 8 NWLR 256 SC. This being the case, it cannot be that denominating part of the salary of the deceased in USD by [the] defendant has been proved by the same defendant to be illegal. The argument of the defendant in that regard is accordingly rejected and dismissed.

34. Has the defendant in the instant case advanced any additional facts/issues to warrant my coming to a different conclusion? The answer is NO! The fact that the CBN circulars are now before the Court merely raises the question whether the CBN acted within their remit to make illegal what an Act of the National assembly did not make illegal. In other words, given the constitutional principle of separation of powers, does it lie with the CBN (an executive body) to make illegal that which the National Assembly did not make illegal? The answer is NO! If sections 15 and 20 of the CBN Act did not make illegal the denomination of any contract or service (so long as payment will be in Naira), where did the CBN get the authority to make same illegal? The rule is that for artificial entities, all acts are prohibited except specifically permitted. See Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor unreported Suit No. SC.622/2015, the judgment of which was delivered on 18th January 2019, per Augie, JSC. I have accordingly not been told anything to change the stance I took in Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited. The Supreme Court decision in Shell Petroleum Development Company of Nigeria Limited v. FBIR (supra) considered therein has not been upturned and it speaks loud and clear. A CBN circular cannot upturn a Supreme Court verdict, only legislation by the National Assembly can. The arguments of the defendant here accordingly hold no water and so are rejected. Consequently, the talk of it being illegal for the claimant and the defendant to have denominated any part of the claimant’s earnings especially the sales commission in USD or other foreign currency is untenable and so is equally rejected.

35. The argument of the defendant that it was not required to apply the prevailing exchange rate fixed by the Central Bank of Nigeria (CBN) or any other rate whatsoever in paying the annual salary (or any component thereof) or any commissions to the claimant is accordingly untenable. The prevailing exchange rate fixed by the CBN is a neutral rate and works to prevent instances or occasions of arbitrariness on the part of persons like the defendant who are wont to arbitrarily fixed whatever they want as exchange rates. I find it very difficult to comprehend the argument of the defendant that it has the absolute discretion to fix whatever it wants as the exchange rate for its internal purposes. It is curious that this argument is even coming so soon after the argument by the defendant that it is illegal to denominate the entitlements of the claimant in other than the Naira. Are entitlements of staff not an internal issue of the defendant again? When it was collecting USD in terms of the transactions that gave rise to the claimant’s claim in this suit, did the defendant use the lower value of the exchange rate that it is using for the claimant? I do not think so.

36. The only issue outstanding is whether the claimant has actually proved his case to warrant the reliefs he presently seeks. The claimant’s case i.e. the claim for a declaration he is entitled to N5,615,000.00 as shortfall of sales commission payable to him as agreed Compensation Plan upon his resignation, cost and interest is a claim for special damages. As a claim for special damages, it is not to be inferred or awarded because it appears that the defendant admitted it; it must be claimed specially and proved strictly with credible evidence and it must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). The defendant reviewed the case law from this Court showing what a claimant must do in order to succeed in a claim for special damages. Thus in Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court summarized what the claimant needs to do in these words:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.

37. The N5,615,000.00 the claimant is claiming is the shortfall of sales commission payable to him as agreed Compensation Plan upon his resignation. Both parties agree that payment was made to the claimant by the defendant. The case of the claimant is that not all his due was paid by the claimant. The balance outstanding is the N5,615,000.00 he presently claims. The instrument entitling the claimant to this outstanding sum is said to be the Compensation Plan agreed to between the parties. The defendant in both its pleadings and deposition agreed that there is a Compensation Plan agreed to between the parties. The only problem is that this Compensation Plan was not frontloaded by the claimant. At the close of the claimant’s case, just before the defendant opened its defence, the claimant applied to call as his witness the witness of the defendant who was already on record as the defence witness disguising it as a call to produce certain documents including the Compensation Plan. Because the claimant could not give to the Court the authority that says that a witness can be both a witness of the defendant as well as the claimant, the Court refused to grant the order. The claimant now argues that because the Court did not grant his prayer, there is a duty on the defendant to produce the Compensation Plan; otherwise, the Court should draw an adverse inference in his favour on the basis of section 167(d) of the Evidence Act 2011. Did the duty to produce the Compensation Plan ever move from the claimant to the defendant? In two recent cases, Mr. Peter O. Igene & 2 ors v. Nigerian Civil Aviation Authority & anor unreported Suit No. NICN/LA/527/2014, the judgment of which was delivered on 30th October 2018 and Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018, the claims of the claimants were hinged on the Monetization Policy of the Federal Government. In both cases, the claimants did not frontload this Monetization Policy; as such their claims failed because the claimants could not show whence their entitlement came. In like manner, the duty is on the claimant to tender the Compensation Plan since he claims his entitlement from it.

38. In paragraph 7 of the statement of facts as well as paragraph 7 of his deposition of 29th March 2016, the claimant averred that the sales transactions of N5.2 million he made in the defendant’s favour entitled him under the Compensation Plan to $175,516.00 gross payout of which $140,420.00 (less estimated 20% tax) was due and payable to him at the prevailing official exchange rate of N198 to $1. The questions that are paramount from this are: what is the actual provision entitling the claimant to this sum? What is the formula under the Compensation Plan through which this sum was calculated as an entitlement? There is no evidence on any of this from the claimant to warrant the adverse inference the claimant seeks under section 167(d) of the Evidence Act. A notice to produce can only entitle the claimant to the use of secondary evidence. The law by Onwuzuruike v. Edoziem & ors [2016] LPELR-26056(SC) is that secondary evidence may be given and admitted of the existence, condition or contents of the original document where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person legally bound to produce it and does not produce it despite being served with notice.

39. In Peter Yinkore & 73 ors v.Neconde Energy Limited & anor unreported Suit No. NICN/LA/611/2012, the judgment of which was delivered on 12th February 2019, this Court in paragraph 103 stated the law thus:

The law is that the notice to produce a document plus failure to produce the document merely enables secondary evidence of the document to be given, not that the burden of producing the document or proving its contents has been relieved of the litigant who filed the notice to produce. See UBN v. Alhaji Muhammad Idrisu [1999] 9 NWLR (Pt. 609) 105 at 118 – 119, Gbadamosi v. Kabo Travels [2000] 8 NWLR (Pt. 668) 243 at 273 and Simon Kajo v. BCC Plc [2013] LPELR-20788(CA). I am not unmindful of Lawal v. Magaji & ors [2009] LPELR-4427(CA) where Sankey, JCA held that a party who is in possession of a document but fails to produce it after notice to produce has been issued and served on him may be giving room for the invocation of the presumption; however, that the trend of judicial opinion is that there is a need to exercise caution in making presumptions unless such a presumption is irresistible and overwhelming. For section 167(d) of the Evidence Act 2011 to apply, the evidence sought to be presumed must be identifiable, clear and known to the Court; as the courts are cautioned to be careful in applying section 167(d). See Egwu v. Egwu [2007] 1 NWLR (Pt. 1014) 71 at 92 CA, Olufosoye v. Fakorede [1993] 1 NWLR (Pt. 272) 752, Lawal v. Magaji & ors [2009] LPELR-4427(CA), The People of Lagos State v. Umaru [2014] LPELR-22466(SC), Eboh v. Progressive Insurance Co. Ltd [1987] 2 QLRN 167, George v. The State [2009] 1 NWLR (Pt. 1122), Akintola v. Anyiam [1961] All NLR 508; Akinfe v. The State [1988] 7 SCNJ 236, Aremu v. Adetoro [2007] 16 NWLR (Pt. 29) 471, Awosike v. Sotunbo [1989] 3 NWLR (Part 29) 471 and Adederan v. Alao [2001] 18 NWLR [245] 408…

See also Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit NO. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018 and Sunday Chukwu Ukpai v. Ajuba Nigeria Limited & anor unreported Suit No. NICN/LA/77/2015, the judgment of which was delivered on 28th January 2019.

40. Like I indicated earlier, there is no evidence before the Court from the claimant as to the provision of the Compensation Plan that entitles him to the money he claims nor is there any evidence before the Court as to the formula used in arriving at the sum he claims. If these pieces of evidence were before the Court, then the failure of the defendant to produce the Compensation Plan would elicit the inference that what is in it is adverse to the defendant. For the claimant to argue, relying on section 167(d) of the Evidence Act 2011, that the defendant, having admitted the existence of the compensation plan, should have produced it for the use of the Court and in rebuttal of the claim that the bonus payment was expressed as a percentage of sales in USD, is to turn the law on its head. In any event, relief (a), the principal relief of the claimant, is merely declaratory; and in declaratory reliefs, the defendant has no duty to assist the claimant in proving his claim. See Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors (supra) especially at paragraph 74; and Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, which relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, held that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant.

41. As it is, relief (a) cannot be granted for lack of proof. It fails and is dismissed. Reliefs (b) and (c) are hinged on relief (a). Exhibit C6, which is the proof for relief (b), has already been held to be of no evidential value given that it is undated. As it is, both reliefs (b) and (c) fail and so are dismissed.

42. On the whole, the claimant’s case fails for lack of proof. Case is accordingly dismissed.

43. Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice B. B. Kanyip, PhD