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National Industrial Court

Prof. Dr. Mansi El-Mansi -VS- Elizade University

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IN THE NATIONAL INDUSTRIAL COURT OF LAGOS NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: FRIDAY 22ND NOVEMBER 2019                           SUIT NO: NICN/LA/464/2016

BETWEEN:

PROF. DR. MANSI EL-MANSI                                            CLAIMANT

AND

ELIZADE UNIVERSITY                                                      DEFENDANT

Representation:

PO Olalere, with Lekan Ikuomona appear for Claimant

Olurotime Aju with Walter Abah appear for the Defendant.

 

JUDGMENT

  1. Introduction:

The claimant commenced this suit through his attorney; Prof. Peter K. Oriogun via a General Form of Complaint dated 15th July, 2016.  Upon the demise of the claimant’s attorney, he was substituted with Mr. Peter Olaoye Olalere.  The claimant claims against the defendant, as follows:

  1. A DECLARATION that the defendant breached the contract of employment it entered with the claimant and the relevant laws of Nigeria by:

(a.)    failing to obtain the appropriate Nigerian residence and work permits/papers required for Claimant’s stay and job roles in Nigeria despite holding on to his passport for that purpose for a whole academic year (1st October 2014 to 19th July 2015) and contrary to the extant regulation for the employment of a foreign faculty in a Nigeria University;

(b.)    failing to pay (exchange) the claimant’s salary at the prevailing Central Bank of Nigeria (CBN) official exchange rate at all relevant times as agreed; and by paying the claimant at an outdated exchange rate of about N154 to a $1 (US Dollar) (rate at October 2014) thus shortchanging the claimant to the tune of about 25% of his entitlement at the official rate and much more at the parallel market rate;

(c.)     failing to follow and defiantly violating its own Governing Council’s decision/directive to (a) pay the claimant the balance of his emoluments arising from usage of wrong exchange rate of about N154 to a $1 (US Dollar), and (b) pay 35% of the claimant’s emolument to his domiciliary account, from the date of the decision/directive, to the harsh detriment of the claimant;

(d.)    failing to pay to the claimant the allowance of N500,000.00(Five Hundred Thousand Naira) attached to the assignment as Director of Centre for Research and Innovation (CENRIN), a position he was appointed to and in which he served the defendant meritoriously and excellently from 1st November 2014 to 1st November 2015;

(e.)     failing to reimburse the claimant all other expenses – including hotel bill, airfare, etc that the claimant was caused to incur on behalf of the defendant in obtaining Subject to Regularization (STR) visa to return to his duty post and deliver on his job roles for the defendant; and

(f.)     failing to abide by and recklessly contravening the Nigerian Immigration Service’s conditions and regulations statutorily guiding the allocated expatriate quotas to the defendant.

  1. AN ORDER for the sums of GBP £1,379 (One Thousand Three Hundred ad Seventy-Nine Great British Pounds) and US$494 (Four Hundred and Ninety-Four United States of American Dollars) being balance of the expenses the claimant incurred in obtaining STR visa to return to his duty post and the hotel expenses incurred upon the defendant’s failure to obtain the necessary work and resident permits for the claimant.

iii.      AN ORDER for the sum of N4,069,166.67 (Four Million Sixty-Nine Thousand One Hundred and Sixty-Six Naira, Sixty-Seven Kobo) being the estimated differentials between the rate used to pay the claimant’s salary throughout his employment period with the defendant (which was N154 to $ 1) and the CBN’s official exchange rates at all relevant times (which was N167.5 to $1 between November 2014 – January 2015 and N197 to $1 between February 2015 -March 2016).

  1. AN ORDER for the sum of N500,000.00 (Five Hundred Thousand Naira) being the claimant’s allowance as the Director of CENRIN from 1st November 2014 to 1st November 2015.
  2. AN ORDER for the sum of N243,610 (Two Hundred and Forty-Three Thousand Six Hundred and Ten Naira) being the differential sum expended in transferring (expatriating) a part of the claimant’s money using the escalating parallel market rate;
  3. AN ORDER for the sum of N45,000.00 (Forty-Five Thousand Naira)being expenses incurred by the claimant in purchasing fuel for Ibadan and Lagos trips towards his return trip to the United Kingdom and penalty for not having his residence card to hand at the Murtala Muhammed International airport, Lagos Nigeria on the 28th day of March 2016;

vii.     AN ORDER for the sum of N5,000,000.00 (Five Million Naira) for the avoidable emotional torture and psychological stress the claimant was made to go through in the course of his work and travails with the defendant University.

viii.    INTEREST on the sums claimed in 29 (i – vii) above at the rate of 21% per annum from the 31st March 2016 when the claimant left the defendant’s employment until the date of judgment and at the rate of 10% per annum from the date of judgment until the date the judgment sum is finally liquidated.

  1. Cost of this action.

  1.  In response, the defendant filed its statement of defence on 14th March 2017.  An amended statement of defence was consequentially filed on the 17th of April 2018 upon claimant’s amendment of his statement of facts. Trial commenced in the suit on 30th May, 2018, and was concluded on 3rd October, 2018. The Claimant caused a subpoenae duce tecum to be issued on the Director of Financial Services of the Central Bank of Nigeria who tendered the relevant exchange rate documents as exhibit C1A – C1R.   The claimant called one witness Peter Olaoye Olalere, Esq ((Claimant’s Attorney). The defendant also called one witness, Mr. Omololu Adegbenro (its Registrar). The following documents were tendered through CW and admitted in evidence:
S/N Documents tendered Exhibits
1. Power of Attorney C1
2. Letter of Appointment C2
3. Pay Slip C3
4. Letter dated 25/1/2016 C4
5. Introduction Letter dated 19th October, 2015 C5
6. Claimant’s letter to defendant dated 10th January, 2016 C6
7. Letters dated 10th December, 2015 and 2nd January, 2016 to the Vice Chancellor and Founder of defendant C7
8. Letter dated 19th January, 2016 from claimant to the VC. C8
9. Letter dated 25th January, 2016 C9
10. Claimant’s Solicitor’s letter dated 30th March, 2016 C10
11. Elizade University Financial Regulations C11
12. Email exchange between the Claimant and Skybank Plc C12

  1.  The following documents were tendered through DW and admitted in evidence:

S/No Documents tendered Exhibits
1. Letter of offer of appointment dated 1st August, 2014 and contract, terms and conditions of appointment. D1
2. Elizade University Law, 2011 D2
3. Defendant’s 3 letters all dated 11th August, 2014 to the Nigeria High Commission D3A, D3B, DB3C
4. Establishment Grant of Quota Positions Issued by the Ministry of Interior to the Defendant D4
5. Defendant’s letter dated 19th October, 2015 to the Nigeria High Commission D5
6. Defendant’s Official Memo to the Claimant appointing him Director of CENRIN dated 15th October, 2014 D6

Facts of the Case:

  1. The claimant was employed by the defendant effectively on the 1st ofOctober 2014 as a Professor of Biotechnology, Faculty of Sciences, of the defendant for two (2) years with an annual gross pay of $76,000 (Seventy-Six Thousand United States of America
    Dollars) payable in Naira, the Nigerian currency. The claimant claimed that the defendant           failed to obtain a Subject to Regularization Visa (STR-
    Visa) and Work Permits to enable him live and work in Nigeria as an
    expatriate.  It is also the claim of the claimant that the defendant failed to pay
    his salary during the period of his engagement at the prevailing CBN exchange rate. The claimant also alleged that in the course of his employment, he was appointed as the Director of the Defendant’s Centre for Research and Innovation (CENRIN) from 1st November, 2014 to 1st November, 2015, and that the position attracts N500,000.00 (Five Hundred Thousand Naira) allowance which the defendant never paid him.  The claimant further alleged that as a result of the failure of the defendant to obtain the STR-Visa and Work Permit, he was unable to repatriate his funds upon his exit from the service of the defendant; he incurred expenses relocating back to his home country and lost his mortgage in the United Kingdom.
  2. The defendant, on the other hand, denied breaching the contract with the claimant. It is defendant’s position that the claimant’s salary was paid to him in Naira, as agreed in the Letter of Appointment issued by the defendant to the claimant.  The defendant states that following the offer of appointment made to the claimant, the claimant was required to obtain an STR visa from the Nigeria High Commission in the United Kingdom to enable him gain entry into Nigeria and take up his appointment with the defendant, pending the grant of a Residence Permit to him. The defendant claims that in support of the claimant’s application for an STR-Visa, they wrote letters to the Nigeria High Commission in the UK, confirming its offer of appointment to the claimant and seeking for issuance of STR-Visa to the claimant.  The defendant asserts that upon arrival in Nigeria, the claimant, on his own volition and without any recourse to the defendant, engaged one Mr. Ogunleye of Elizade Nigeria Limited to whom he handed his international passport for the purpose of procuring a Residence Permit for him. According to the defendant, it severally requested for the claimant’s international passport to enable it process the claimant’s Work Permit but the claimant refused and/or failed to present same.  The defendant also denies that it has any obligation under the employment contract with the claimant to repatriate his funds from Nigeria. Furthermore, the defendant avers that the appointment of the claimant as Director of the Defendant’s Centre for Research and Innovation (CENRIN) was in furtherance of his employment contract and did not attract any extra pay for the Claimant.  The defendant also denies that it is responsible for any of the losses allegedly suffered by the claimant.

Submissions of Counsel:

  1. 6.In its final written address, counsel, on behalf of defendant submits the following lone issue for determination:

Whether from the facts and evidence adduced before the court, the claimant has established his claims before the Court and is, therefore, entitled to the reliefs sought against the defendant in this suit?

  1. The defendant contends that from the totality of evidence before this Court, the claimant has failed to prove that the defendant breached his contract of employment and is therefore not entitled to the reliefs sought in this      suit.  The defendant submits that it satisfied the first requirement to enable the claimant work in Nigeria, by obtaining the requisite expatriate quota grant, as per exhibit D4; but could not obtain the CERPAC for the claimant because he failed to hand over his international passport to the defendant and there was no way it could have, in the circumstance, been able to process the claimant’s CERPAC without his international passport.

  1. On claimant’s claim that the University failed to assist him to repatriate his fund from Nigeria, defendant submits that claimant failed to prove that defendant owed him such responsibility.

  1. On claimant’s claim that defendant’s Governing Council had decided the claimant should be paid 35% of his monthly emoluments directly into his bank account in the United Kingdom, defendant submits that to do that would have violated the provisions of section 20(1)(5) of CBN Act. The defendant further submits that assuming (but without conceding) that the claimant was not paid his salaries as agreed in exhibit C2, that the claimant’s continued acceptance of the salaries paid to him by the defendant amounts to waiver and cannot therefore be heard afterwards to complain.

  1. On claimant’s claim for allowance as Director of defendant’s Centre for Research and Innovation (CENRIN), defendant submits that claimant has not proved that that appointment had financial benefits; and challenged the admission of exhibit C11 (the University Financial Regulations).  The defendant also submits that claimant’s allegations of several losses including travel and immigration costs, loss of his mortgage in the United
    Kingdom and significant foreign exchange differentials, has not been proved by evidence.

  1. Defendant raised a sub issue for the consideration of the court, viz: whether the evidence of CW1, the claimant’s attorney amounts to hearsay and therefore inadmissible; and submits that the evidence of CW, being statements of what he was told by claimant, amounted to hearsay and should be discountenanced.

  1. The Claimant on his own side, submitted the following two issues for determination:

  1. Whether the claimant has, on the preponderance of evidence, proved that the defendant breached the contract of employment it entered with the claimant and violated the relevant laws of Nigeria in the manners and ways claimed.
  2. Whether the claimant is entitled to and the defendant should be ordered to pay the various sums of money claimed by the Claimant as a result of the said breach of contract and violation of the relevant laws.

  1. On issue I, the claimant submits that the defendant breachedthe contract of employment by failing to obtain the appropriate Nigerian residence and work permits/papers required for claimant’s stay and job roles in Nigeria.  The defendant argues that it is inherent in the contract of employment of every expatriate in Nigeria that they will repatriate their emoluments to their home country. The claimant states that he has proved defendant’s failure to pay salary at appropriate CBN exchange rate by exhibit C3, being a copy of claimant’s November 2015 pay slip, exhibit C2 and C1A – C1R.

  1. On the alleged waiver of his right, the claimant argued that it was not pleaded by the defendant, and cannot be brought in by counsel’s address. The claimant also argued that defendant’s failure to produce the minutes of the Council where decision on the payment of the balance of salary and 35% of claimant’s emolument to his domiciliary account was because it will be detrimental to their case.  Claimant refers to sections 89 (a); 90 (1 a); 91 (b) of the Evidence Act 2011.  Claimant further submits that the court must hold that evidence which could be produced but is not produced would, if produced, be unfavourable to the person who withholds it. He relied on section 167 (d) of the Evidence Act 2011 and the case of The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584 at 620 paras B-C.
  2. 16.The claimant further submits that defendant’s Financial Regulations admitted in evidence as exhibit C11 forms part of the documents, laws and rules by which the defendant operates; and which regulates employment relationships in the defendant.  On the admissibility of exhibit C11, claimant submits that it is pleaded, relevant and notice to produce was given to the defendant.  the claimant further submits that in view of the importance of the document to the contract between parties in this case, the defendant must know that it would be required to produce same in court as provided in section 91 (b) of the Evidence Act 2011.  On the objection to exhibit C9 by defendant on the basis that it was not signed and there was no indication of who the author is; claimant submits that the document is written on the letterhead of the defendant with the address of the claimant and the defendant clearly written on it.  The claimant argued that based on the foundation laid by CW1 on 3rd October 2018 when tendering the document in evidence, that the original had been submitted to the defendant and the signed original copy could not be located by the claimant, he could tender a photocopy made before the document was signed.  Claimant submits that the defendant ought to know that they will be required to produce the original of exhibit C9 in court pursuant to section 91 (b) of the Evidence Act 2011. Claimant also argues that it is a practice and custom across universities that annual allowances are attached to offices of Provost/Dean/Director; and urged the court to take judicial notice of that fact pursuant to sections 9 and 13 of the Evidence Act 2011.  He further submits that it is more probable than not that allowance of N500, 000.00 per annum was attached to the office of Director of CENRIN where the Claimant served.
  3. 17.On defendant’s failure to pay the balance of expenses incurred in and before obtaining STR visa to return to work in Nigeria, claimant submits that the defendant was not only aware that the claimant was incurring expenses over the inability to return to his duty post on time on account of not obtaining his residence and work permits/papers required for Claimant’s stay and job roles in Nigeria, but the defendant also approved of the expenses, paid part of same, but refused to liquidate the balance.

  1.  Issue 2 is whether the claimant is entitled to and the defendant should be ordered to pay the various sums of money claimed by the claimant as a result of the said breach of contract and violation of the relevant laws. The claimant submits that he has shown that he performed his job roles as a Professor of Biotechnology with the defendant from 1st October 2014 to 31st March 2016 and as director of CENIRN from 1st November 2014 to 1st November 2015 but the defendant failed to perform its own obligation of paying him as agreed.

  1. On whether the evidence of CW is hearsay evidence, claimant submits that the evidence of CW properly falls under the exceptions to the hearsay evidence rule as stated in sections 38, 39 (d), 41, 42 , 43 51, and 83 (1) (a. ii), (2), (5) of the Evidence Act 2011. Claimant further submits on this point that having left the employment of the defendant, he could not come to the country for the prosecution of this case without incurring unreasonable amount of delay and expense, hence his appointment of an attorney via exhibit C1 is proper. Refers to section 39 (d) of the Evidence Act 2011 and the case of Kate Enterprises Ltd v. Daewood (Nig.) Ltd [1985] 2 NWLR (Pt. 5) 116.

  1. The defendant in Reply on Point of Law submits that without the residence permit (CERPAC) the claimant could commence his employment in Nigeria using his STR-Visa by virtue of the provision of paragraph 12(5) of Immigration Regulations 2017.

On the alleged waiver of his right to the contract, the defendant submits that the conditions stated by the Supreme Court in Olatunde v O. A. U (1998) 5 NWLR (pt. 549) 178 had been met in the circumstance of this case.  The requirements are that:

  1. The party against whom the doctrine is raised must have knowledge or be aware of the act or omission which constitute the waiver;
  2. He must do some unequivocal act adopting or recognising the act or omission.

DECISION:

  1. I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following lone issue for determination; to wit:
  • Whether from the facts and evidence adduced before this Court, the claimant has established his entitlement to the reliefs sought in this suit.
  1. Before delving into the consideration of the issue set out for determination, it is imperative, as a preliminary matter, to consider the submissions of counsel with respect to the objected documents.

Exhibit C11 is defendant’s Financial Regulations and the defendant objected to it on the ground that it is a public document and only a certified true copy can be admitted in evidence; and that the claimant did not give the defendant notice to produce same as required by section 91 of the Evidence Act, 2011.  The defendant argues that Exhibit C11 being registered with National University Commission, a public body, is a public document covered by sections 102(b) and 104 of the Evidence Act, 2011.

  1. Claimant, on the other hand, argues that exhibit C11 was pleaded and oral evidence of it given; is relevant and notice to produce it was given to defendant.  The claimant argues that he clearly indicated he would be relying on it; and in view of the importance of the document to the contract between parties in this case, the defendant must know that it would be required to produce same in court.
  2. The document in question by its nature is a private document of defendant.  However, the defendant argues that because it has been deposited with the National Universities Commission, it falls under section 102(b) as a public record kept of private document; hence requiring proof by certification.  The court in Dr David C.O. Okoye & Anor v. Christopher N. Obiaso & Ors (2010) 8 NWLR (Part 1195) 145, 168 established clearly that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the party(ies) to the proceedings; whether it is relevant to the subject matter of inquiry by the court or tribunal and whether it is admissible in law. This position is restated in Aboaba v. Ogundipe (2017) LPELR-42922(CA).
  3. I have considered the document and find that it is pleaded.  This is not contested by defendant.  I also find it relevant as some of the reliefs sought are founded on it.  The point of divergence between parties is whether it is admissible in law.  The defendant’s argument is that it is comes under the description of a public record kept of private documents.  The question that this argument begs is whether, a private document becomes automatically a public document requiring certification, by virtue of its registration with a public authority.  I have considered defendant’s reference to the cases of Nwaogu v Atuma (2013) 11 NWLR (pt. 1364) 117 and Kubor v Dickson (2013) 4 NWLR (Pt.1345) 534 and do not find their relevance to the issue of the status and admissibility of exhibit C11.  Just for purposes of insight, I consider what a Court elsewhere held.  In an elaborate discussion on the status of private documents in public records being by that wise public documents requiring certification, the courts of India reasoned in Bidhan Paul v. Paresh Chandra Ghosh, (2001) 3 Gauhati LR 594, that “only those public records which keep the private documents and not the copies of private documents are treated as “public document” within the meaning of Section 74(2) of the Indian Evidence Act.”  (similar to our section 102(b))  See also Smt. Rekha Rana and Ors. v. Smt. Ratnashree Jain, 2006 (1) MPLJ 103.   By this, a private document does not lose its character for the reason of it being filed before an official authority; unless and until some actions are performed by the public officer on such documents in his usual course of duties, it continues to be a private document. This is in the same manner that registered private documents do not attain public character solely on their registration.  Therefore, a private document would continue to retain its character even if it is kept in public file. It is neither by such filing or registration that the ‘private’ character of such document is lost, but by the action taken on it.  This position in my view is consistent with what the Supreme Court stated in the case of Onwuzuruike v Edoziem (2016) 6 NWLR (Pt. 1508) 215, 233-234 where the apex court held, per NS NGWUTA:

In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the police to whom it was addressed it became part of the record of public officers and thus a public document. “

This therefore means that a private document, such as exhibit C11, does not automatically become a public document, by its mere registration.  By this , I do not find that exhibit C11, as tendered by the claimant, requires certification under section 104 of the Evidence Act.

  1. The issue of the admissibility of exhibit C11 as a private document would have ended with my finding above; however, the provision of the Elizade University Law at section 14 requires that a statute to be proved in any court shall bear or have affixed to it a certificate signed by the Registrar to the effect that a copy is a true copy of a statute of the university.  I have considered in this respect, claimant’s argument that he gave defendant notice to produce exhibit C11.  Claimant did plead and CW gave evidence and stated its intention to rely on exhibit C11.  The claimant stated:

That the defendant is one of the private universities licensed by the Nigerian university commission in 2011 and operates based on Elizade University Law of 2011, the employee handbook, and the Elizade University Financial Regulations etc to provide Univeristy education in Nigeria.  The claimant relies on a copy each of the Elizade University Law 2011 and the Elizade University Financial Regulations at the trial and the defendant is hereby put on notice to produce a copy of the said Elizade University Law of 2011 at the trial of this suit.

  1. I would have found this a good notice to produce; however in the final sentence of notice, the Financial Regulation was omitted.  It is my finding that, from the very nature of this case, and particularly, the pleading/evidence quoted above, the defendant should have known that that document would be required in evidence. Section 91 proviso (b) of the Evidence Act 2011 provides that:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it —

(a)

(b) when, from the nature of the case. the adverse party must know that he will be required to produce it;

By this, I sustain the admission of this exhibit.  I find it a situation that the defendant must know that it will be required to produce it.  Assuming I am wrong in so admitting this exhibit, then I would further justify its admission by referring to the special nature and jurisprudence of this Court.  This Court is founded and enjoined to by its jurisprudence to always put in perspective its specialized nature, the socio-economic importance of its jurisdiction and the diverse composition of parties.  This court must also consider and apply international best practices to ensure that international standards are maintained.  Expatriates must therefore be treated fairly and equally, and their status not permitted to be a hindrance in their employment relationship; and in the protection of the rights that accrue to them by that relationship.

  1. Again, the objection raised against exhibit 11 is in no way an attack on its substance; rather on mere technicality.  Therefore, assuming further that I am wrong in my finding on the status of exhibit C11, I invoke the powers granted in section 12 of the National Industrial Court Act 2006 authorising a departure from the Evidence Act and depart from the requirement of section 91 of the Evidence in the interest of justice.  The need for this flexibility is emphasised by the Rules of this Court when it provides that:

ORDER 1 RULE 9 (2) (3)

(2) These Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in Section 12(2)(b) of the National Industrial Court Act, 2006.

(3) The Court may disregard any technical irregularity which is likely to result in a miscarriage of justice.

ORDER 5 RULE 6 (2)(3)

(2) In any proceeding pending before it, the Court may as a specialized Court—

(a) regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play.

(b) in appropriate circumstances, depart from the Evidence Act as provided in section 12 (2) (b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair -play.

(3) In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.

  1. It is in the interest of justice that, unless where issues of substantial justice are involved, a court shall not be shackled by technicalities, and prevented from doing substantial justice.  I consider and find the objection of claimant to be absolutely founded on technicalities.  The claimant did not challenge the authenticity of any of the documents, or that they were not pleaded or relevant.
  2. The Appellate Courts have consistently advised against being guided by such technicalities.  See Agunbiade v. Oke (2015) All FWLR (Pt. 811)1330 CA.  In Oloruntoba-Oju v. Abdul-Raheem (2009) LPELR-2596 (SC) the Supreme Court, held that:

I must repeat the clarion call that Courts nowadays denounce judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this all forms of technicalities which will act as a detriment to the determination of the substantial issues between litigants must be shunned. While recognising that rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit.” Per O.O ADEKEYE, JSC, 33-34 F-B

  1. In Adebesin v. State 2014) LPELR-22694(SC), the Supreme Court said that “…this is a minor technical point that has no effect on the judgment of the Court below. At this state in our jurisprudence, technicality must ex necessitate yield place to reality”. See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC and Olam Nigeria Plc. v. Onaghinor (2011) LPELR-8956(CA) and Bello v. A.G. Oyo State (1986) 5 NWLR (PT.45) 528. The Court of Appeal in Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 @ 297, citing Famfa Oil Ltd. v. AGF (2003) 18 NWLR (Pt. 852)453, stated that Courts of Law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned.  Justice can only be done in substance and not by impeding it with mere technical procedural irregularities occasioning no miscarriage of justice.
  2. Based on all the above, I sustain exhibit C11.  On the objection to the letter of 19/10/15 (exhibit C5), and the pay slip (exhibit C3); I find them pleaded and relevant.  I discountenance the objection which is that no notice to produce was given.  I find it to be founded on technicality as there is no challenge as to its substance.  I rely on all the reasons already given in relation to the issue of technicality to sustain their admission.  In any event, the defendant also tendered and got the same letter of 19/10/15 admitted in evidence as exhibit D5.
  3. I however agree with defendant on his objection to exhibits C4, C6, C8 and C9 for not being signed by the author.  Claimant had submitted that the letters were written on the letterhead of the defendant with the address of the Claimant and the defendant clearly written on it.  Claimant argues that since the original had been submitted to the defendant and the signed original copy could not be located by the claimant, he could tender a photocopy made before the documents was signed.  I have considered this argument, and find that the foundation does not explain why even the name of the writer is not indicated in the letters.  The letters are not only unsigned, but also without a known author.  They are incomplete letters and could not have been photocopies made before the originals were signed.  I therefore discountenance exhibits C4, C6, C8 and C9.

  1. Another preliminary issue to be determined is defendant’s attribution of the evidence of CW – claimant’s attorney as hearsay evidence.  The defendant contends that the entire testimony given by CW (the claimant’s Attorney) are facts not within his personal knowledge but what the claimant told him, and therefore caught up by the hearsay rule. Counsel for defendant, Mr. Aju argues that the claimant is the competent witness to give evidence in support of his claim.  In response, Mr. Olalere argues for claimant that the evidence of CW properly falls under the exceptions to the hearsay evidence rule as stated in sections 38, 39 (d), 41, 42 , 43, 51, and 83 (1) (a. ii), (2), (5) of the Evidence Act 2011. Claimant’s counsel further submits that having left the employment of the defendant; the claimant could not come to the country for the prosecution of this case without incurring unreasonable amount of delay and expense.
  2. I have considered the submissions of counsel for both parties on this issue.  Power of attorney can be granted by individuals and corporations to an agent to perform functions, such as instituting an action in court, managing property, signing documents or receiving rents etc.  It is an easy way to have another person handle legal or financial matters for you when you are away or otherwise unable to handle them for yourself.  The powers conferred on the attorney are usually stated in the document.  In this case, exhibit C1 is the Power of Attorney donated to CW.  It grants CW power to:
  3. Prosecute and defend my interest, in my legal proceedings in Suit No. NICN/LA/464/2016 – Prof. Dr. Mansi El-Mansi v. Elizade University pending before the National Industrial Court, Lagos Nigeria or any other suit arising from the same claim to demand and recover all the sums lost, damages incurred and commensurate damages/full compensation for the damages I suffered from and against Elizade University.

I find that this power so donated empowers CW to so act.  To argue that the donee of such a power cannot give evidence would undermine the essence of the power of attorney entirely.  Further, I find that by the circumstance of this case, that is, claimant’s return to the United Kingdom and the entire reliefs sought in this case, this case falls under the exception in section 39(d) of the Evidence Act 2011.  Explaining the purport and scope of this provision, the Court of Appeal in Njoku & Ors v. IRECHUKWU & Anor (2013) LPELR-20673(CA)  stated that:

Thus Sections 39 and 46 of the Evidence Act, 2011 are provided to enable a party and the trial court make use of evidence of previous proceedings as if same were testimony given on oath before it. Such evidence is only relevant and admissible before the Court if the maker of such statement is either dead, cannot testify or is incapable of testifying for one reason or the other; such as old age, ill-health etc; or cannot be produced without an amount of delay or expense which in the circumstances of the case, the court considers to be unreasonable. (My emphasis)

  1. Further on the issue, the Rules of this Court settles it when it authorises commencement of action by an agent.  Order 13 Rule 32 and 33 provides as follows:
  2. Where by these Rules, any act may be done by any party in any proceedings, such act, may be done either by the party in person, or by the party’s counsel, or by the party’s agent (unless an agent is expressly barred under these Rules).
  3. If a power of attorney is executed by a principal and the agent is authorized to sue in a representative capacity on behalf of the principal, such an action must be brought in the name of the principal, that is, the donor of the power of attorney, indicating that the donor is suing through the named agent

Based on all the above, I am of the view that evidence of CW does not constitute hearsay, and is therefore admissible.  I so hold.

  1. Having resolved the preliminary issues, I would now proceed to consider the issue set out for determination – whether the claimant has established his entitlement to the reliefs sought in this suit by the facts and evidence before the Court.  I shall consider each of the reliefs sought by claimant sequentially.
  2. DECLARATION that the defendant breached the contract of employment it entered with the Claimant and the relevant laws of Nigeria by (a) failing to obtain the appropriate Nigerian residence and work permits/papers required for Claimant’s stay and job roles in Nigeria despite holding on to his passport for that purpose for a whole academic year (1st October 2014 to 19th July 2015) and contrary to the extant regulation for the employment of a foreign faculty in a Nigeria University.

In proof of this relief, claimant relied on exhibit C5 which was also tendered by defendant(exhibit D5).  This document is a letter written by the defendant to the Nigeria High Commission, London, introducing the claimant and requesting for an STR visa to be issued to him to enable him return to Nigeria to resume his duties.  The defendant conceded that it was its responsibility to obtain the appropriate residency and work permits/papers but stated that it could not do so because claimant on arrival into the country handed over his international passport to someone else to do it on his behalf.  DW stated as follows:

Upon arrival in Nigeria, the claimant, on his own volition and without any recourse to the defendant, engaged one Mr. Ogunleye of Elizade Nigeria Limited to whom he handed his international passport for the purpose of procuring a Residence Permit for him. The defendant severally requested for the claimant’s International Passport to enable it process the claimant’s Work Permit but the claimant refused and/or failed to present same.

All losses allegedly suffered by the claimant as a result of the failure to obtain his residence permit within time are a direct consequence of his decision to procure his residence permit without recourse to the defendant

It was only after the claimant’s attempt at procuring his residence permit in the manner described in paragraph 5.3 above, had failed, that the claimant sought the defendant’s intervention in terms of its Registrar’s letter to the Nigeria High Commission dated 19th October, 2015(exhibit D15).

I do not find any rebuttal to this averment by the claimant in any form; not by way of Reply or during cross examination.  There is evidence that the defendant supported the claimant’s application for an STR visa by writing 3 (three) letters to the Nigeria High Commission in the United Kingdom, all dated 11th August, 2014, confirming the offer of appointment made to the claimant and stating that the said appointment fell within the Expatriate Quota approved for the defendant by the Nigerian Government.  These letters are exhibits D3A – D3C.  These letters and exhibit D5 all go to show that defendant took steps to ensure claimant was properly in the country to commence work.  In the circumstance of absence of any rebuttal of DW’s evidence above, I do not find that the claimant has proved, on a preponderance of evidence, that the defendant “failed to obtain the appropriate Nigerian residence and work permits/papers required for claimant’s stay and job roles in Nigeria despite holding on to his passport for that purpose for a whole academic year (1st October 2014 to 19th July 2015).   I therefore find that claimant’s entitlement to this declaration is not established.

  1. The next relief seeks for a declaration that the defendant breached the contract of employment it entered with the claimant and the relevant laws of Nigeria by (b.)     failing to pay (exchange) the claimant’s salary at the prevailing Central Bank of Nigeria (CBN) official exchange rate at all relevant times as agreed; and by paying the claimant at an out dated exchange rate of about N154 to a $1 (US Dollar) (rate at October 2014) thus short changing the claimant to the tune of about 25% of his entitlement at the official rate and much more at the parallel market rate;

Claimant in proof of this head of relief tendered his offer of appointment (exhibit C2), the Central Bank of Nigeria (CBN) Dollar exchange rate for the period 31st October 2014 to 31st March 2016 (exhibit C1A – C1R) and his pay slip for the month of November 2015.  The relevant part of exhibit C2 is the 4th paragraph which provides that:

Your consolidated annual salary will be $76,000.00(Seventy Six Thousand Dollars only.  Please note that your salary will be paid in Naira, the Nigerian currency.

I agree with claimant that it goes without saying that what is to be paid is at the prevailing Naira rate per Dollar.  It is important that the claimant proves that he was paid at a less exchange rate, especially, having asserted that defendant failed to pay at the prevailing CBN rate “at all material times”.  This expectedly is to be proved by presenting to the Court, claimant’s pay slips to show this failure, when juxtaposed against the prevailing exchange rate presented in exhibits C1A – C1R.  Surprisingly, the claimant tendered only one pay slip; for the month of November 2015.  The defendant has denied that they short changed the claimant and states that “the Claimant’s salary was paid to him in Naira, as agreed in the Letter of Appointment.”

It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Claimant’s tendering of only one pay slip tends to invite the Court to begin a conjecture of what might have been paid for the other months, or better still to apply what was paid in November 2015 to the other months.  The claimant himself had presented a table indicating that there was no consistency in the payment pattern.  In the absence of proof of what the claimant was paid in these other 16 months (as listed in CW evidence, paragraph 6) this court is unable to make the declaration sought.  This court cannot begin to imagine and assume facts.  As held in Adegbite v. State, (2017) LPELR-42585(SC):

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

  1. The next relief sought by claimant is for a declaration that the defendant breached the contract of employment it entered with the Claimant and the relevant laws of Nigeria by (c.)          failing to follow and defiantly violating its own Governing Council’s decision/directive to (a) pay the claimant the balance of his emoluments arising from usage of wrong exchange rate of about N154 to a $1 (US Dollar), and (b) pay 35% of the claimant’s emolument to his domiciliary account, from the date of the decision/directive, to the harsh detriment of the claimant.  Claimant asserts that defendant was given notice to produce the minutes of the meeting of Council of February/March 2015 where the decision/directive was made/given.  The defendant did not produce the said document.  The failure to produce a document does not discharge the requirement to prove a fact in issue.  By Order 40 Rule 38 of the Rules of this Court, it allows the party making the request to give secondary evidence of the document.  See section 91of the Evidence Act 2011.  This has been given judicial assent in a plethora or cases.  See the case of Uba Plc v. Ogochukwu (2014) LPELR-24267(CA).  In the case of Chukwu v. Nduka (2008) LPELR 3985 CA, AYOKU V YINUSA (2008) LPELR (3663) CA, the court held that:

Service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents.” Per OBASEKI-ADEJUMO, J.C.A (P. 26, paras. C-G)

In Nweke v. State (2017) LPELR-42103(SC), the Supreme Court reiterated that:

“A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. I

The claimant, not having furnished the evidence of the decision/directive of the Council of defendant being defiantly violated, I find that claimant has not established his entitlement to this relief.  I cannot ignore defendant’s tangential admission that it considered the possibility of splitting the “salaries of expatriates” into two with a part paid to them in Naira and the balance paid in Dollars, but that it was unable to give effect to the said Council decision as the CBN subsequently issued a press statement prohibiting the use of foreign currency as a medium of exchange in Nigeria. However, this fact is not consistent with the relief sought, thus I cannot rely on it as proof of what the claimant has asserted.  As a result of not finding proof of the decision/directive of defendant’s council to pay the claimant the balance of his emoluments arising from usage of wrong exchange rate of about N154 to a $1 (US Dollar), I decline the declaration sought.  I also decline the declaration that there is a breach of contract for defendant’s failure to pay 35% of the claimant’s emolument to his domiciliary account, as I do not find is as constituting part of the terms of claimant’s contract; neither has it been proved to apply by any other means.

  1. Claimant’s also seeks this court for a declaration that the defendant breached the contract of employment it entered with the Claimant and the relevant laws of Nigeria by (d.)  failing to pay to the claimant the allowance of N500,000.00(Five Hundred Thousand Naira) attached to the assignment as Director of Centre for Research and Innovation (CENRIN), a position he was appointed to and in which he served the defendant meritoriously and excellently from 1st November 2014 to 1st November 2015. There is no dispute over whether the claimant was appointed as the Director of Centre for Research and Innovation (CENRIN) from 1st November, 2014 to 1st November, 2015.  The disagreement is whether the position attracts N500,000.00 allowance.  Whereas claimant states that it attracts N500,000.00 allowance; defendant disputes this fact and contends that it was not written in claimant’s appointment letter as Director. Claimant relies on exhibit C11 which is the University’s Financial Regulation as proof of his entitlement to the said allowance.  Defendant testified that:

The Claimant was not paid entitlement because the appointment was without financial benefits. It was not stated in his letter of appointment that there would be financial benefits.

I have seen that the appointment letter to the directorship of CENRIN (exhibit D6) did not contain any provision for financial benefits.  However in evidence is DW testimony during cross examination that:

Apart from the letter of employment and the law, we also have the Financial Regulations and the contract and conditions of service that regulates claimant’s employment

I find by this admission, that exhibit C11 forms part of claimant’s employment terms.  Exhibit C11 at chapter 22, page 39 (paragraph C) provides for Responsibility Allowance.  The rates are as follows:

I.)                Provost/Dean/Director                  – N500. 000.00 per annum

Since, by defendant’s evidence, exhibit C11 forms part of the documents that regulates claimant’s employment, I find that the above provision applies to claimant.  Also, and as suggested by claimant, I take judicial notice of the fact that such appointments in Universities, are usually with allowances.  I find it more probable than not that allowances are attached to such positions.  The defendant having not paid claimant’s allowances for the post of Director to which it appointed him, is in breach of its contract.  I so find and hereby declare that the defendant breached the contract of employment it entered with the claimant failing to pay to the claimant the allowance of N500,000.00(Five Hundred Thousand Naira) attached to the assignment as Director of Centre for Research and Innovation (CENRIN).

  1. The fifth declaratory relief sought by claimant is for a declaration that the defendant breached the contract of employment it entered with the Claimant and the relevant laws of Nigeria by (e.)  failing to reimburse the claimant all other expenses – including hotel bill, airfare, etc that the claimant was caused to incur on behalf of the defendant in obtaining Subject to Regularization (STR) visa to return to his duty post and deliver on his job roles for the defendant.  I have gone through the entire length of the claimant’s evidence and do not find any proof of the said expenses; no receipts, no tickets, no taxi receipts, no hotel bill or receipt, no airfare; nothing.  I do not agree with claimant, as he stated in his evidence that “such expenses are usually not receipted.”  There is no need to further the issue.  This relief cannot be granted in the absence of such proofs.

  1. Claimant’s final declaratory relief sought is for a declaration that the defendant breached the contract of employment it entered with the Claimant and the relevant laws of Nigeria by (f.) failing to abide by and recklessly contravening the Nigerian Immigration Service’s conditions and regulations statutorily guiding the allocated expatriate quotas to the defendant.  I do not find any evidence of the act alleged under this relief.  This relief is related to the first declaratory relief sought in this case.  The finding under that heading is applicable to this relief.  I therefore decline this order sought for lack of proof.

  1. The claimant further seeks AN ORDER for the sums of GBP £1,379 (One Thousand Three Hundred ad Seventy-Nine Great British Pounds) and US$494 (Four Hundred and Ninety-Four United States of American Dollars) being balance of the expenses the claimant incurred in obtaining STR visa to return to his duty post and the hotel expenses incurred upon the defendant’s failure to obtain the necessary work and resident permits for the claimant.  The failure of the declaratory relief on the expenses incurred in obtaining both the STR visa and the hotel expenses ultimately means that this relief fails.

  1. The relief for AN ORDER for the sum of N4,069,166.67 (Four Million Sixty-Nine Thousand One Hundred and Sixty-Six Naira, Sixty-Seven Kobo) being the estimated differentials between the rate used to pay the claimant’s salary throughout his employment period with the defendant (which was N154 to $ 1) and the CBN’s official exchange rates at all relevant times (which was N167.5 to $1 between November 2014 – January 2015 and N197 to $1 between February 2015 -March 2016) also fails based on the failure of the declaratory relief 1b.
  2. The relief for AN ORDER for the sum of N500,000.00 (Five Hundred Thousand Naira) being the claimant’s allowance as the Director of CENRIN from 1st November 2014 to 1st November 2015 succeeds based on the finding on the declaratory relief (i)(d) above.  I further find that defendant’s submission that the Elizade University Financial Regulations in Chapter 23 thereof only contained a “proposal” which was never implemented by the defendant is not part of the evidence before the Court, it being argument made in Counsel’s submission.  It is trite that no matter the length and logic, submissions of Counsel cannot substitute for pleadings or hard evidence. See Oyeyemi & Ors v. Owoeye & Anor (2017) LPELR-41903(SC).
  3. The fourth order sought by claimant is for AN ORDER for the sum of N243,610 (Two Hundred and Forty-Three Thousand Six Hundred and Ten Naira) being the differential sum expended in transferring (expatriating) a part of the claimant’s money using the escalating parallel market rate.  Claimant led absolutely no evidence is proof of this claim.  It is therefore not grantable.
  4. Claimant’s claim for AN ORDER for the sum of N45,000.00 (Forty-Five Thousand Naira) being expenses incurred by the claimant in purchasing fuel for Ibadan and Lagos trips towards his return trip to the United Kingdom and penalty for not having his residence card to hand at the Murtala Muhammed International airport, Lagos Nigeria on the 28th day of March 2016 is without proof as found in the declarative order (i)(e) above.
  5. Reliefs (vii), (viii) and (ix) must necessarily fail, for lack of proof to their entitlement; and further, the failure of the declaratory orders sought.
  6. Effectively, only reliefs (i)(d) and (iv) succeeds.  Defendant is ordered to pay to the claimant, the sum of N500,000.00 (Five Hundred Thousand Naira) being the claimant’s allowance as the Director of CENRIN from 1st November 2014 to 1st November 2015.  This is to be done within 30 days of this judgment, failing which interest will accrue at the rate of 20% per annum.

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

…………………………………

Hon. Justice Elizabeth A. OJI PhD

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