IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JUNE 3, 2019 SUIT NO. NICN/ABJ/192/2018
BETWEEN
Mr Olusegun Daniel – Claimant
AND
Leadership Group Limited – Defendant
REPRESENTATION
B. O. Ukwueze, for the claimant.
Ms Fortunate Modebe, with David Idris, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant commenced this suit vide a complaint dated and filed on 5th July 2018 praying for the following reliefs:
(1) A declaration by this Honourable Court that the claimant was lawfully engaged in the services of the defendant from 1st September, 2012 until 14th November, 2017 when the defendant terminated the employment of the claimant at its branch office at 27, Ibrahim Tahir Lane, off Shehu Musa Yar’adua way Utako District, Abuja.
(2) A declaration by the Honourable Court that while in the services of the defendant, some parts of the claimant’s salaries and emolument were not paid by the defendant until his appointment was terminated by the defendant on 14th November, 2017.
(3) An order of this Honourable Court directing the defendant to pay to the claimant the sum of N2,519,383.18 (Two Million, Five Hundred and Nineteen Thousand, Three Hundred and Eighty-Three Naira, Eighteen Kobo) as his final entitlements representing owed salaries and emoluments.
(4) The cost of this action.
2. Along with the originating processes, the claimant had filed a motion on notice dated 5th July 2018 urging this Court to place this suit under the summary summons list. In response, the defendant filed a counter-affidavit attached with the defendant’s statement of defence informing the Court that it has reasonable defence to the action, and hence urging the Court to place the suit on the general cause list. Given the defendant’s defence, the Court placed the suit on the general cause list and the matter was adjourned for hearing. On the day set for trial, the claimant testified for himself as CW, and tendered the following exhibits: Exhibit A1 (letter of offer of employment), Exhibit A2 (letter of promotion to the manager post), Exhibit A3 (photocopy of termination letter), Exhibit A4 (letter of demand) and Exhibit A5 (the purported calculation of the claimant’s outstanding and pension deduction). The defendant on its part informed the Court that it will rest its case on the claimant’s. Written addresses, starting with the claimant, were thus ordered. The claimant did not file his written address as ordered; nor did he apply for extension of time in accordance with Order 45 Rules 9 and 10 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). The defendant accordingly filed its address; and the claimant was thereby foreclosed.
3. For purposes of this judgment, what is accordingly before the Court are the claimant’s pleadings, the claimant’s evidence and the defendant’s final written address. That the claimant was foreclosed from filing any final written address is in law immaterial as a litigant is not under compulsion to file any written address (Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA)); and the written address is designed to assist the Court and so in some circumstances it may be a matter of formality – it may not diminish or add strength or weakness in a party’s case. See Bosma & ors v. Akinole & ors [2013] LPELR-20285(CA) and Ndu v. The State [1990] 7 NWLR (Pt. 164) 550 SC. Where the facts are straight forward and in the main not in dispute, the trial judge would be free to dispense with the final address given that cases are normally not decided on addresses but on credible evidence. See Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA). And no amount of brilliance in a final speech can make up for lack of evidence to prove and establish or else disprove and demolish points in issue. See Niger Const. Ltd. v. Okugbene [1987] 2 NSCC 1258. See also Olumide Seye Otusote v. National Union of Hotels and Personal Services Workers unreported Suit No. NICN/LA/126/2014, the judgment of which was delivered on 9th October 2018 and Mr Saheed Saula v. Atiku Security Company Limited unreported Suit No. NICN/LA/258/2013, the judgment of which was delivered on 30th October 2018.
THE CASE BEFORE THE COURT
4. The claimant’s case is that he was appointed by the defendant as the Management Information System Administrator vide a letter of employment dated 1st September 2013, which terms of employment he accepted (paragraph 4 of the statement of facts). However, the claimant would proceed to state that “following his appointment as the Management Information System Administrator by the Defendant, he starts work on the 3rd September, 2012, a day the Defendant ask him to start” (paragraph 5 of the statement of facts). On 16th October 2017, he was promoted to the position of Assistant General Manager, Revenue and Cost Control (Exhibit A2). That while in the service of the defendant, he remained hardworking but his salary was paid in piece meal, and sometimes the salary was not paid at all. That he continued receiving half of his salary until 14th November 2017 when his appointment was terminated by the defendant (Exhibit A3) despite that part of his salaries and emoluments were still unpaid. To the claimant, the defendant is indebted to him to the tune of N2,519,383.18 as a result of salary arrears and pension. That despite his demand for this sum (Exhibit A4), the defendant refused to pay him the said amount, hence this suit. The claimant’s case is accordingly one for special damages. For the defendant, its case is that the claimant stole from the defendant hence the termination of his employment and that the claimant’s salary was paid by the defendant before termination of his employment.
THE SUBMISSIONS OF THE DEFENDANT
5. The defendant has formulated two issues for determination, namely:
(a) Whether or not from evidence adduced before this Hon. Court the claimant has placed sufficient material before this Hon. Court to warrant this Hon. Court granting him the reliefs sought.
(b) Whether or not this Hon. Court has the power to expunge the wrongly admitted exhibits which offend the spirit and letters of the Evidence Act (2011) as amended.
6. On issue (a), the defendant answered in the negative. The defendant’s contention is premised on the fact that it is a general and accepted principle of law that in all civil cases claims are proved on preponderance of evidence and balance of probabilities. That in determining either balance of probabilities or preponderance of evidence, the trial judge is to weigh evidence adduced before the court by resolving the imaginary scale of justice; with the burden of proof being on the claimant, referring to A. R. Mozali & anor v. Odofin [1978] 4 SC 91 at 93-96, M. Mirchandani & anor v. Babatunde Pinheiro [2001] 3 NWLR (Pt. 701) 557 at 558, Sokwo v. Kpongbo [2008] 34 WRN 1 SC at 7 and sections 131(1) and 132 of the Evidence Act 2011.
7. To the defendant, the law is trite that in actions where a claimant is seeking for specific monetary claims, such claim must be easily discernible and quantifiable and not one rest on a puerile conception or notion, which will give rise to speculation, approximation or estimation or friction, referring to Nigerian Dynamic Ltd v. Aguocha [2002] FWLR (Pt. 104) 630. That special damage must be specifically pleaded and strictly proved, citing Obot v. Akpan [1998] 4 NWLR (Pt. 546) 409. That in this instant case, referring to the claimant’s reliefs, more particularly relief 3, a closer perusal will show that this said relief is a claim in which the claimant feels aggrieved of and it is monetary in nature. That the claimant has not demonstrated to the Court how he came by the said total sum nor has he led evidence to support this fact. That the Court need not go through this Israelite journey to discover this fact. Furthermore, that in all paragraphs the statement of claim, the claimant failed to demonstrate by way of pleading how much is his total salary package, how much he earns in a month, how much was the defendant paid in piece meal and how much is the pension deduction and the total cumulative reliefs that the claimant is seeking.
8. The defendant went on that the law is trite that any party who claims and desires that judgment be given to him on any legal right or liability, which is dependent on existing facts which he avers must prove that those facts exist; where he fails to do so, then he will not be entitled to the reliefs sought, citing Abiodun v. Adehin [1962] 2 SCNLR 305 and Tewogbade v. Akande [1968] NMLR 404. That in the instant case, the claimant failed by way of pleading to tie the reliefs sought particularly relief 3 of his statement of claim to any paragraphs in his statement of claim. That the claimant failed to demonstrate to this Court in his pleadings how he came about the round figure sought for, particularly relief 3 of his pleading. The defendant then urged the Court to so hold and dismiss this suit with cost. That the law is trite that the object of pleadings is to define issue and narrow the scope of controversies and that it is the duty of Court to decide the case in accordance with pleadings and not in any matter not put in issues; however, special damages must be particularised and specified in pleadings, referring to Dr Adeoshun v. Popoola Adisa [1986] CA 7 ( Pt. II) 147. That the claimant failed to particularise and specify in his pleading the nature of his claims in his complaint.
9. That special damages must be specifically pleaded and strictly proved; otherwise, no award will be made by the Court; they must be so pleaded and proved even if no statement of defence or even if the defendant fails to give evidence, referring to Nalado v. Au [2006] All FWLR (Pt. 293) 220. That from the claimant’s oral testimony or written statement of oath before the Court, the claimant failed to demonstrate to this Court that he is entitled to the reliefs sought in his pleadings. That the law is trite that parties are bound by their pleadings and the Court cannot travel outside their pleadings, referring to Ekeocha v. Osuji [2002] FWLR (Pt. 105) 774-778. That a trial Judge, in deciding a case, must not, even when the interest of justice demands, stray from pleadings. The Court must limit itself with the issue raised by the parties not otherwise. That this Court should limit itself to the claimant’s pleadings particularly the statement on oath and reliefs sought; urging the Court to so hold and dismiss this suit in the interest of justice as same has not displayed any material facts to which this Court can act and joggle its decision in his favour.
10. The defendant continued that it is trite law that pleadings are binding on the parties and the Court; and the Court need not path the red sea, nor go through this Israelite journey but to centre on the pleadings of the parties, citing Court to State v. Colins Oju Aibangbee & anor [1988] 7 SC (Pt. I) 96-128; and Fasanya v. Adekoya [2001] FWLR (Pt. 34) 516-530 CA, which held that extraneous facts cannot be relied upon outside pleadings. That from the totality of the pleadings before the Court and evidence adduced, the claimant failed to place any materials fact before the Court to warrant a decision in his favour. The defendant, therefore, urged the Court to dismiss this suit with cost. In any event, that the onus is on the party seeking reliefs to succeed on the strength of his own case and not on the weakness of the defence; citing Fatoba & anor v. Ogundahunsi & ors [2003] FWLR (Pt 154) 561–584 CA and Agu v. NNAIM [2003] FWLR (Pt 139) 1537 at 1554-5 SC. That even though evidence is uncontroverted and the case uncontested, where the evidence does not relate to the pleadings the claimant will not be entitled to the reliefs he seeks, referring to Alhaji Abdullahi v. Milad, Kaduna State & ors [2004] All FWLR (Pt. 214) 112 at 123 C.A. That in the instant case, the claimant’s pleadings failed to relate to the reliefs sought and then claimant did not demonstrate to the Court why it should grant him the reliefs on the face of the complaint. That the Court of law is not a charitable institution. Its duty in litigation is to render to every one according to his proven claims, citing Idoko v. Ogbeikwu [2003] FWLR (Pt. 149) 1530-1543 CA; and Chief J. A. Nnada v. Brunelli Construction Coal (Nig) [2001] FWLR (Pt. 72) 2018-2093 CA, which held that judgment should be based on pleadings, and a trial judge is bound by the pleading and evidence before him and most especially he has no business making a case for any party or importing extraneous matter. That unless admitted by the adversary, failure to proof or establish averment in pleadings would lead to discountenance of averment as unsubstantiated, citing Mrs Ayorinde & anor v. Chief Fayoyin [2009] FWLR (Pt. 75) 483-502. That the claimant failed to lead evidence to substantiate his claims and the Court will not act as Father Christmas granting reliefs not sought for.
11. For issue (b), the defendant urged the Court to answer it in the negative. The defendant’s contention is premised on the fact that the Exhibit A5 tendered by the claimant is a document generated from an electronic device. That it is trite law that an electronic evidence refers to legal evidence or information contained in a computer and other digital storage media scientifically processed and stored in digital form for the purpose of proving or disproving allegation or arguments in civil or criminal proceedings, citing Esso West Africa Inc v. T. Oyegbola [1969] 1 NMLR 194 where it was held that the law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer. That the word computer as defined in section 258(1) of the Evidence Act 2011 means any device for storing and processing of information and any reference to information being derived from other information in reference to it being derived from it by calculation, comparison or any other process. In the instant case, That Exhibit A5 is electronic evidence as same was produced by a computer, a fact which was admitted by the claimant under cross-examination. That this Court should so hold that Exhibit A5 is electronic evidence as same was produced by a computer.
12. To the defendant, Exhibit A5 being an electronic evidence and a computation of the claimant’s pension and outstanding salaries cannot be admissible in line with section 84(1) and (2) of the Evidence Act 2011. The defendant’s contention is premised on the fact that Exhibit A5 is computer generated evidence which must fulfill certain conditions before it will be admissible in evidence. That by a community reading of section 84(1) and (2) of the Evidence Act 2011, in any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the condition in subsection (2) of this section are satisfied in relation to the statement and the computer in question. The said conditions are:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not or by any individual.
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operating properly or was out of operation during that part of that period was not such as to affect the production of document or the accuracy of the contents.
(d) That information contained in the statement reproduces or is derived from information supplied to the computers in the ordinary course of those activities.
13. That Exhibit A5 was tendered by the claimant without a certificate of compliance, by stating the make of the computer, whether the computer is in regular use as to storing of information, whether or not over that period there was regular supply of information and the nature of information supplied to the computer. To the defendant, the Court should hold that the claimant has not complied with the provision of section 84 of the Evidence Act 2011; as such Exhibit A5 should be rejected. That in a civil matter, a piece of evidence that is legally or lawfully inadmissible ought to be rejected whether objected or not objected to by the opposing party or parties, referring to Okonji v. Njokanma [1999] 12 SCNJ 259 at 273-275. That evidence that is completely inadmissible remains inadmissible, objection or no objection; and if wrongly admitted, can be expunged at the judgement stage suo motu by the Court or after inviting addresses on the issue from the parties. That the law is trite that where a document is wrongly admitted as an exhibit, the Court owes it a duty to expunge the same from its records in its judgment, citing CAN v. Nyako [2012] 52 (Pt. II) NSCQR 508 at 557-558. That this evidence as tendered by the claimant has failed to meet up with the requirement of the law and as such be marked rejected with cost.
14. On the issue as to the admissibility of Exhibits A1, A2, A3 and A4, the defendant’s contention is that they cannot be admitted by the Court given that they are photocopies of documents, which foundation as to the whereabout of the originals, was not laid. That the law is trite that where a photocopy of the original document is sought to be tendered as exhibit before any court of law, in the absence of the original, foundation has to be laid as to the whereabout of the original document sought to be tendered before a court of law, referring to section 88 of the Evidence Act 2011. That documents, especially private documents, must be proved by primary evidence, citing P. M. L. Sec Co Ltd v. FRN [2015] 4 NWLR (Pt. 1450) 551 CA where it was held that the contents of a document can only be proved by tendering the original document or secondary evidence thereof after laying proper foundation for the secondary evidence. That it is noteworthy that the provisions of section 88 of the Evidence Act 2011 are directory commanding and imposing their language and intent and imposes a duty or obligation on a party to prove the contents of the document by the production of the original document itself, which is primary evidence thereof; referring also to section 89 of the Evidence Act 2011 in which secondary evidence may be used to prove the existence of a documents. That in the instant case, the claimant only identified these documents and tendered them without a proper foundation as to the whereabout of the original private document. The defendant, therefore, submitted that these exhibits as tendered should be rejected. The defendant concluded by urging the Court to dismiss the suit with cost.
COURT’S DECISION
15. I have carefully considered the processes filed and the submissions of the parties. I indicated earlier that the claimant was foreclosed from filing his final written address and why he was so foreclosed. In considering the merit of this case, I start off with the issue of the admissibility of the exhibits tendered by the claimant raised by the defendant. The argument of the defendant is that these exhibits cannot be admitted since Exhibit A5 is a computer generated document, while Exhibits A1 to A4 are photocopies. The specialized nature of this Court has necessitated the use of section 12 of the NIC Act 2006, which enjoins this Court to apply the Evidence Act but allows the Court to depart from it in the interest of justice. This Court generally accepts as admissible evidence computer generated documents and photocopies once their authenticity is not challenged. The rationale for this has been given in previous decisions of this Court. See, for instance, 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. I do not accordingly see any merit in the objection of the defendant to the admissibility of Exhibits A1 to A5 tendered by the claimant. I hold the said documents admissible. Their weight, however, remains to be seen.
16. A look at especially reliefs (2) and (3) of the claimant, it will be seen that his case is one for a claim for special damages. Relief (1), which seeks for a declaration that the claimant was in employment with the defendant from 1st September 2012 up to 14th November 2017 is merely to delimit the period within which the claim for special damages as per reliefs (2) and (3) are based. The claimant’s case is accordingly not one for determining the validity or otherwise of the termination of his employment with the defendant. The evidence of the claimant as to why he was terminated, whether it was for reorganization or theft, is accordingly irrelevant to the determination of this case. There is thus no doubt whatsoever that the case of the claimant is one for special damages. In especially relief (3), the claimant is claiming for “…the sum of N2,519,383.18 as his final entitlements representing owed salaries and emoluments”.
17. The Court of Appeal in 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) is quite emphatic when it held thus:
The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded…
See also NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), which held that a claim for special damages cannot succeed because it is admitted as special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. That the fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence as special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court. See further Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC.
18. This Court has in so many cases indicated what must be done by a claimant in order to succeed in a claim for special damages. In the more recent case of 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 the position thus:
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.
See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017, Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014, the ruling of which was delivered on 17th January 2017, Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014, the judgment of which was delivered on 24th January 2017 and Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017.
19. Furthermore, the law is that all items of loss, that is, constituting the claim for special damages must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Additionally, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 – 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC). Where can the claimant specify the items of loss, the specific particulars of the special damages being claimed? Only in the pleadings. Relief (2) is a claim for a declaration that while in service, some part of the claimant’s salaries and emolument were not paid by the defendant; and relief (3) is a claim for “…the sum of N2,519,383.18 as his final entitlements representing owed salaries and emoluments”. Where in the pleadings did the claimant indicate the part of his salaries and emoluments that were paid in order for the Court to know the part that is unpaid? Where in the pleadings did the claimant plead his monthly salary in order to know how he came by the cumulative “sum of N2,519,383.18” that he claims? Where in the pleadings are the items of salaries and emolument each particularized as enjoined by law? The pleadings have none of these.
20. Meanwhile, a look at the statement of facts will show that aside from what the claimant did not plead, which is necessary to prove his case, even what he actually pleaded consists of contradiction. In paragraph 4 of the statement of facts, the claimant pleaded that his letter of employment is dated 1st September 2013. In paragraph 5 of same statement of facts, the claimant pleaded that he started work on 3rd September 2012, the day the defendant asked him to start work. Meanwhile, Exhibit A1, the offer of employment, is dated 1st September 2012. Paragraphs 4 and 5 of the statement of facts are thus contradictory in terms of the date of his letter of employment and when he started work. As His Lordship Tur, JCA puts it in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA), a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed; and the duty of a plaintiff is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. This the claimant did not do, and so cannot be held to have gotten to the point where he is required to prove his case. I so find and hold. This being so, it is needless even considering the evidence of the claimant and the weight to be attached to especially Exhibits A1 to A5 as tendered.
21. On the whole, I see no merit in this case. It fails and so is hereby dismissed.
22. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
