IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: FEBRUARY 21, 2019
Suit No: NICN/PHC/57/2014
BETWEEN:
- OWUMI UYI
CLAIMANT/DEFENDANT TO COUNTER CLAIM
AND
PABOD BREWERIES LIMITED
DEFENDANT/COUNTER CLAIMANT
REPRESENTATION
Mr. C.C Okere Esq for the Counter Claimant.
Defendant to the Counter Claim not represented.
JUDGMENT
INTRODUCTION AND CLAIMS
This action is an offshoot of a Complaint which was struck out on the 12th day of December, 2017; in which the Counter Claimant was sued as a Defendant therein. The Counter Claimant, upon entering a Memorandum of Conditional Appearance on the 22nd day of April, 2014; filed a Counter Claim alongside his Statement of Defence. The reliefs sought by the Counter Claimant are as set out in Paragraph 17 of his Counter Claim are as follows:
- A DECLARATION that the 1st Defendant (Counter Claimant) is entitled to the sum N2,000,000 (Two Million Naira) from the Claimant (Defendant to the Counter Claim), being the sum spent on the Claimant on his induction training.
- The sum of N1,500,000 (One Million Five Hundred Thousand Naira) against the Claimant (Defendant to the Counter Claim), being the cost of defending the suit.
- The sum of N5,000,000.00 (Five Million Naira) as general damages against the Claimant (Defendant to Counter Claim)
At trial, the Counter Claimant called only one witness – one Mrs. Esther Ezenwoko – who testified as CCW1 on the 8th day of March, 2018 and tendered 6 EXHIBITS marked as EXHIBITS CCW1 001 – CCW1 006. The Defendant to the Counter Claim was neither present at the trial nor represented by any Counsel despite the service of numerous hearing notices on him, hence there was no defence to the Counter Claim filed before this Court.
COUNTER CLAIMANT’S CASE IN BRIEF
CCW1 by her written testimony stated that the Defendant to the Counter Claim accepted the offer to work for the Counter Claimant when he was still in the employment of another company. After working with the Counter Claimant Company for one month, the Defendant to the Counter Claim tendered his resignation as shown in EXHIBIT CCW1-001. Upon its investigation on the sudden resignation of the Defendant to Counter Claim, the Counter Claimant discovered that the Defendant to the Counter Claim never intended to work for the Counter Claimant company, as he was on leave from his place of work at the time he was supposed to be in the employment of the Counter Claimant.
She further stated that during the one month period of his employment with the Counter Claimant, the Counter Claimant expended the total sum of N2,000,000.00 (two million naira) in the form of salary payment and courses/trainings at different locations on the Defendant to the Counter Claim. That the Counter Claimant wrote a letter of demand to the Defendant to Counter Claim following the discovery of his fraudulent action. That the Counter Claimant’s demand was for the total sum spent on the Defendant to the Counter Claim.
CCW1 was not cross-examined on her evidence as the Defendant to the Counter Claim was foreclosed for failure to enter appearance in defence of the counter claim. This court then ordered the Counter Claimant to file a Final Written Address.
SUBMISSION OF THE COUNTER CLAIMANT
The Counter Claimant raised a sole issue for this Court to determine, to wit:
- Whether in the circumstance of this case, the Counter Claimant is entitled to the reliefs sought in its counter claim.
In their argument on the issue, the Counter Claimant’s Counsel maintained that the Counter Claimant has satisfied the legal requirement for the exercise of the Court’s jurisdiction in their favour. Counsel argued that the uncontroverted evidence of the Counter Claimant is that the Defendant to Counter Claim fraudulently represented to the Counter Claimant that he had terminated his employment with his previous employers when in actual sense, he was on leave from his said employers. He contended that the legal effect of the unchallenged evidence of the Counter Claimant is an admission of the facts by the Defendant to the Counter Claim. He relied on the authorities of ADEBIYI v. UMAR (2012) 9 NWLR (PT.1305) PG.279 and ZENITH BANK PLC v CHIEF DENNIS EKEREUWEN (2012) 4 NWLR (PT.1290) PG.207. Learned Counsel argued further that the Defendant to Counter Claim has no defence and as such the Court should enter judgment in favour of the Counter Claimant.
Counsel also urged the Court to look at its records in holding that the Defendant to Counter Claim fraudulently represented his employment status to the Counter Claimant when indeed he was holding a subsisting employment. On this Learned Counsel directed the Court to the case of OYEWOLE v. AKANDE (2009) 15 NWLR (PT.1163) PG.119. Counsel prayed the Court to grant its reliefs as contained in the Counter Claim.
COURT’S DECISION
I have perused the evidence of the Counter Claimant in relation to the reliefs that it seeks this Court to grant and I have listened to the submission advanced by the Counter Claimant’s Learned Counsel. I must note again for the records that the Defendant to the Counter Claim did not file any process before this Court neither was he represented by any Counsel to defend this suit. I have therefore adopted the sole issue raised by the Counter Claimant, which is:
- Whether in the circumstances of this case, the Counter Claimant is entitled to the reliefs sought in its counter claim.
Every Court irrespective of its nomenclature or status in hierarchy or any other body saddled with quasi-judicial powers has a duty to give Parties the opportunity of being heard before it takes a decision on any matter before it. All Courts must exercise this principle of natural justice so as not to desecrate the temple of justice.
This Court has satisfied itself, on the records that the Claimant, who for all intent and purposes will now be referred to as the Defendant to Counter Claim in this judgment, was given ample opportunity to defend the Counter Claim against him after his matter was struck out on 12/12/17. This Court, on the provisions of Order 32, Rule 7 of the Rules of this Court, is empowered to proceed with the hearing of the Counter Claim in the absence of any defence. The opportunity to defend the Counter Claim is evident from the notice of the hearing of the Counter Claim, which due service was made as per the records of this Court.
On the Authorities, it is an established principle in our jurisprudence that a Counter Claim is a distinct action by the Defendant against the Complainant which is independent and separate from the original/main claim. It has a distinct existence and demands the same respect as the original suit/action. See ALHAJI Y. DAN HAUSA & CO LTD v PANATRADE LTD (1993) 6 NWLR (PT.298) PG.204; AIR VIA LTD v ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT.878) PG.298. The roles of the Parties therefore switch and the Counter Claimant is given the opportunity to prove his claims on the preponderance of evidence.
The law is however long settled that the fact that the Defendant to the Counter Claim failed, refused and or neglected to file a defence does not give the Counter Claimant an easy ride to judgment. The Counter Claimant, as is required under our civil jurisprudence, must succeed on the strength of its evidence and not on the weakness or failure of the Defendant’s case. HENSHAW v EFFANGA & ANOR (2009) 11 NWLR (PT.1151) PG.65; ABUBAKAR v WAZIRI & ORS (2008) 14 NWLR (PT.1108) PG.507.
After reviewing the entire circumstances of the case before me, the pleadings and evidence led in support, it is clear that there existed an employer – employee relationship between the Parties which terminated on the 9th of December, 2013. This is evidenced by EXHIBITS CCW1-001 and CCW1-002. The gist of the Counter Claimant’s case is that the Defendant to the Counter Claim fraudulently represented his previous employment status to them thereby causing them financial loss. This is conspicuously captured in paragraph 8 of the CCW1’s written deposition, which was not contradicted by a contrary evidence.
In the case of UMANAH v ATTAH & ORS (2006) 17 NWLR (PT.1009) PG.503, which I took pains to comprehend and which definition of fraud was adduced to mean:
“an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right”.
It is a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. For the purposes of civil law, fraud includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another. See also OTUKPO v JOHN & ANOR (2012) 7 NWLR (PT.1299) PG.357; AFEGBAI v ATTORNEY GENERAL, EDO STATE (2001) 14 NWLR (PT.433) PG.425
However, in the prove of the offence of fraud, the Courts have rested in a plethora of authorities that before a Claimant can rely on fraud or forgery, the fact must not only be pleaded but particulars must be provided and evidence sufficiently led thereof. In any event, where the commission of crime is alleged in any proceedings, whether criminal or civil, as in the instant case, the alleged crime must be proved beyond reasonable doubt and it is the Counter Claimant in this suit who asserted the commission of fraud who has the burden of proving same by leading sufficient and substantial evidence. See SECTION 135(1) EVIDENCE ACT, 2011; OJINI v JOHNSON & ANOR (2015) LPELR-40249 (CA), APENA & ANOR v AILERU & ANOR (2014) 14 NWLR (PT.1426) PG.111.
The fundamental rules in pleading fraud is that for an imputation of fraud to succeed, it must be pleaded with the utmost particularity. It follows indeed that no rule is more clearly established than that fraud must be distinctly alleged and proved and that it is not permissible to leave fraud to be inferred from the facts. The cases of UAC LTD. V TAYLOR (1936) 2 WACA 70; USENFOWOKAN V. IDOWU (1969) NMLR 77; NWOBODO V. ONOH & ORS. (1984) NSCC 1 are of the moment. Mere admission of the facts does not discharge the burden of proof beyond reasonable doubt. Such admission ought to be direct and positive and satisfactorily proved. ABIRIFON v STATE (2013) 13 NWLR (PT.1372) PG.587.
Furthermore, it is elementary law of evidence that before a piece of evidence is admitted by a Court, such exhibit must first pass the test of relevancy. It is however not the law that every piece of document admitted by a Court of Law must automatically be assigned probative value or weight. A document could be admitted on the ground of relevancy but in determining the weight, if any, to attach to an admitted document, the Court will take into consideration the entire circumstances from which inferences can reasonably be drawn as to the accuracy or otherwise of the document. In essence, admissibility of a document and the evidential value ascribable to it are two different things. NWABUOKU & ORS v ONWORDI & ORS (2006) 5 SC (PT.III) PG.103; AGBALLAH v CHIME (2009) 1 NWLR (PT.1122) P.373. While admissibility is anchored on relevance, probative value depends not just on relevance but principally on proof.
On the solemn analysis of the evidence before me, it is clear that aside its statement of fact suggesting the allegation of fraud, the Counter Claimant failed to provide substantial evidence to prove the allegation that indeed the Defendant to the Counter Claim was still a staff of another company at the time he worked for the Counter Claimant. No evidence was led to substantiate the allegation apart from the deposition of CCW1 on oath. Now if there were persons from the so-called employer who could validate the claims of the Counter Claimant, they are vital witnesses whose evidence could tilt the case to the side of the Counter Claimant. The failure of the Counter Claimant to call evidence from the said employer of the Defendant to the Counter Claim was fatal to their case. See LASE v STATE (2017) LPELR-42468 (SC); OGUDU v STATE (2011) 18 NWLR (PT.1278) PG.1.
EXHIBIT CCW1-006 (email correspondences) between the Counter Claimant and the purported employers of the Defendant to the Counter Claim does not substantially discharge the burden of proof placed on the Counter Claimant in prove of that assertion. The handler of the email (one Emmanuel) neither identified himself as a staff of the said employer of the Defendant to the Counter Claim nor did he state if he was authorized to make the confirmation as he did. Granting the claims of the Counter Claimant on EXHIBIT CCW1-006 would be unconscientious and arbitral.
The authority of OYEWOLE v AKANDE cited by the Counter Claimant in compelling this Court to look at the processes in its record to determine the admission of the Defendant to the Counter Claim, is of no moment. Although a counter claim derives its life from the original claim/action, however, having been discontinued, reference for breath can no longer be derived from the original claim/action, as it exists no more. It has slumped down, fainted and ultimately died, only waiting for resurrection, if at all there will be one for it on the last day. An action that has been duly and validly struck out, withdrawn or discontinued by its owner is no more a subject of litigation. The suit cannot be recalled nor referred to as the suit ceases to exist from the date the order for discontinuance is made. Court will accordingly dismiss all the claims without further intervention or reference to the processes as if they were not part of the proceedings. See THE VESSEL “SAINT ROLAND” & ANOR v OSINLOYE (1997) 4 NWLR (PT.500) PG.387; OGUNKUNLE & ORS v ETERNAL SACRED ORDER OF THE CHERUBIM & SERAPHIM & ORS (2001) 12 NWLR (PT.727) PG.359; EFET v INEC & ORS (2011) 7 NWLR (PT.1247) PG. 423.
It flows also that having alleged that it paid various sums of money to the Defendant to the Counter Claim, the onus was directly on the Counter Claimant to establish, with credible evidence and not merely by statement of fact, the existence of those material facts. This Court is not satisfied by the exhibits tendered in relation to the testimony of CCW1. EXHIBIT CCW1-004 is merely a computation of the sum the Counter Claimant alleged to have paid the Defendant to the Counter Claim as salary for the month of November, and nothing more. The EXHIBIT, prima facie, is not a proof of payment, whether in cash or through a bank.
Even more, the said EXHIBIT CCW1-004 has a mark/signature without an author. There must be an author who is easily identifiable and who can be traced to the mark or signature. A person who can take responsibility for the content and form of the document. Notwithstanding that the Counter Claimant is a juristic personality, the authenticity of the content of the document must be tied to a natural person or designation who is authorized and who can take responsibility thereof. Party cannot place that burden on the Court to go about searching for the maker of the mark or signature. This Court can only presume the authenticity of the content of any document were it is properly done and the document is properly executed by an authorized officer. I therefore attach no evidential weight to this document and as such I cannot rely on it.
The same fate also befalls EXHIBIT CCW1-005 (Hotel invoice/breakdown), as nothing on the face of the documents reveal the payment of the alleged sums by the Counter Claimant to the Defendant to the Counter Claim nor does it show that the payments were done on behalf of the Defendant to the Counter Claim by the Counter Claimant Company. There is no correlation between the statement of fact and the exhibit in itself, rather the document suggest that the Defendant to the Counter Claim made the said expenses by himself. I have also observed that the breakdown of expenses in the various hotels were signed by their respective receptionists without a corresponding signature of the customer to show the existence of a binding contract. This raises a doubt in my mind, causing me to believe that the said documents were prepared hastily and in contemplation of the filing of this action by the Counter Claimant.
Proof of payment of money can only be made by oral evidence of the person who said he/she made the payment (whether by cash or otherwise) or where such payment was made into a bank account, by the oral evidence of the person who actually made the payment personally to the bank or by the production of a bank teller, bank statement or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller, duly stamped with the official stamp of the bank and properly initialled by the cashier or a statement of bank account constitutes prima facie proof of payment of the sum of money therein indicated and a customer after producing such a receipt needs not prove more unless the payment is being seriously challenged. AEROFLOT v. U.B.A. (1986) 3 NWLR (PT.27) PG.188 at 190. More still, in this era of advanced technology wizardry, an authentic electronic message from the bank confirming transfer or payment of funds, is sufficient proof of payment.
Notwithstanding that no evidence was led by the Defendant to the Counter Claim in defence of the action, the Counter Claimant, to my mind, has not sufficiently satisfied this Court with its evidence, of the offence which they alleged against the Defendant to the Counter Claim.
The case of the Counter Claimant, in the absence of cogent evidence, falls like a pack of cards and I refuse to grant the reliefs sought in the Counter Claim. The Counter Claim is hereby dismissed.
I so hold.
Judgement is hereby entered accordingly.
__________________________________________
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
