IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
SEPTEMBER 27, 2018
SUIT NO: NICN/LA/624/2017
BETWEEN RAPHAEL ANAGBADO CLAIMANT
AND
1. AZUBUIKE EZEH
2. TOCHUKWU ONYIUKE DEFENDANTS
3. DEBORAH CHUKWUEDO
(Practicing law under the name and style of
Accendolaw Barristers & Solicitors)
APPEARANCE
V.E Emerowa for the Claimant/Defendant to counterclaim.
X. J Ogbogboyibo for the Defendants/Counterclaimants.
JUDGMENT
The Claimant commenced this suit by way of General Form of Complaint and the accompanying originating process on 15th December, 2017 claiming against the Defendants jointly and severally as follows:
a. An order for payment of N80, 107.33 (Eighty Thousand, One Hundred and Seven Naira Thirty-Three Kobo) being May 2016 salary.
b. An order for payment of N28, 600.00 (Twenty Eight Thousand Six Hundred Naira Only) being total accumulated transport expenses for November, 2015 and January to May, 2016.
c. An order for remittance of N31, 448.69 (Thirty One Thousand Four Hundred and Forty-Eight Naira Sixty Nine Kobo) deducted personal income tax directly to the Claimant’s Lagos State Inland Revenue Service (LIRS) Account No: N-2986970.
d. An order for remittance of N64, 800.00 (Sixty Four Thousand Eight Hundred Naira Only) being pension entitlement to the Claimant’s IBTC Stanbic Pensions Ltd account.
e. An order for payment of N100, 000.00 (Hundred Thousand Naira) as general damages.
f. An order compelling the Defendants to issue a statement indicating the periods the Claimant was employed, being November, 2015 to May, 2016.
The Defendants entered conditional appearance and filed their joint Statement of Defense/Counter Claim and other defence processes on March 7, 2018. As per their Counter Claim, the Defendants are claiming against the Claimant/Defendant to the Counter Claim the following reliefs:
a. The sum of N5, 000,000.00 (Five Million Naira) as general damages for negligence of the Defendant to the Counter Claim.
b. The sum of N5, 000,000.00 (Five Million Naira) as general damages for unlawful interference with trade and business.
OR IN THE ALTERNATIVE
c. The sum of N5, 000,000.00 (Five Million Naira) as general damages for breach of contract.
d. The sum of N500,000.00 (Five Hundred Thousand Naira) being costs of the Counter Claim.
During the trial, the Claimant testified as for himself by adopting his witness statement on oath and tendered 13 documents which were admitted in evidence and marked as Exhibit C1 to C13.
The Defendants opened their case on 2nd May and called their sole witness, the 1st Defendant to lead evidence. The DW adopted his witness statement on oath and tendered 10 documents which documents were admitted in evidence and marked as Exhibitn D1 to D10.
On 2nd May, 2018, in the course of cross-examining the Claimant, the Defendants’ counsel tendered the Claimant’s personal diary pursuant to the notice to produce given in paragraph 6 of the Claimant’s Reply to Statement of Defense and same was admitted in evidence and marked Exhibit C14.
THE CASE OF THE CLIMANT
The Claimant is a former employee of the Defendants and it is his case that he was absent in court on 7/12/15 due to his inadvertence and reliance on the firm’s cause list for the week 7th – 11th December 2015 (which does not have the NBC v Taiwo suit listed on that day) which is a true reflection of the Claimant’s copy of the Defendants’ cause list as in Exhibit C2, save for the endorsement on the final copy pasted on the office notice board. The Claimant was issued query for not attending court on 7/12/15, he responded and was subsequently punished by being asked to pay a penalty of N5, 000 which was duly paid. In addition, he was further punished by delaying the payment of his December 2015 salary till 8/1/16 as per Exhibit C3. The Claimant remained in employment until his decision to resign in June 2016 as in Exhibit C4. The Defendants accepted this resignation and proposed that the Claimant resigns in May 2016 and this was complied with as in Exhibit C5 (email of 26th May 2016). The Defendants then refused to pay the May 2016 salary and by Exhibit C8, the Claimant demanded payment of the salary, accumulated transport expenses, remittance of personal income tax and pension deductions and the Defendants failed, refused to pay same compelling the Claimant to brief Counsel to recover the claims in this Court.
THE CASE OF THE DEFENDANTS
The Claimant was employed by the Defendants as a Legal Practitioner in the Law firm of Accendolaw. Sometime in 2015, the Defendants were appointed by Royal Exchange Plc to represent Nigeria Bottling Company Plc to whom Royal Exchange Plc acted as insurers, in Suit no: LD/1112/2012 Olufemi Taiwo & Another v. Nigeria Bottling Company Plc to set aside a garnishee order nisi. Following the appointment to represent Nigerian Bottling Company Plc, the 2nd Defendant filed a motion for change of counsel dated the 3rd day of July, 2015. On the 11th of November, 2015, the Claimant and the 2nd Defendant were in the High Court of Justice 1, Ikeja to represent Nigerian Bottling Company Plc in suit no: LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc but the court did not sit and consequently the case was adjourned off record to the 7th day of December, 2015 which was endorsed in the 2nd Defendant and Defendants’ office diaries. In the law firm’s official cause list covering the period of 7th -11th days of December, 2015, the Claimant was assigned by the 1st Defendant to attend court proceedings on the 7th day of December, 2015 in Suit no: LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc but he failed to attend court consequent upon which the Court struck out the 2nd Defendant’s application for change of counsel and granted the garnishee order absolute against the said Nigerian Bottling Company Plc. In consequence, Royal Exchange Plc acting as insurers to Nigerian Bottling Company Plc immediately became obligated to pay and indeed paid the sum of N5,000,000.00 (Five Million Naira) to the claimant in Suit no: LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc. The 2nd Defendant informed the Claimant that due to his unjustifiable actions, he would have to bear the financial brunt of lodging an appeal against the garnishee order absolute, as the firm was not prepared to suffer unnecessary financial exposure due to his indiscretions to which he agreed and made an initial payment in the sum of N5,000.00 (five thousand Naira) to the firm’s Litigation Clerk in furtherance of immediately filing a notice of appeal. Due the low patronage of the law firm by Royal Exchange Plc, the Defendants decided to see to the immediate end of the Claimant’s engagement with the firm as soon as he tendered his letter of resignation which took effect on the 27thday of May, 2016. It is also the Defendants’ case that the Claimant had unlawfully interfered with their proprietary and confidential information including documents, letters, pleadings, agreements and other sensitive and confidential information. The Defendants also counterclaimed against the Claimant for negligence, breach of contract and unlawful interference with trade and business for his failure to appear on 7th December, 2015 in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc, tampering with the proprietary and confidential information of the Defendants, deleting his browser history and misusing the internet resources of the Defendants.
After the trial, the parties filed their respective final written addresses. The Claimant/Defendant to Counter Claim filed his written address on June 13,2018 while that of the Defendants/Counterclaimants is dated and filed on June 7, 2018. The Defendants/ Counterclaimants also filed reply on point of law on June 27, 2018.
THE SUBMISSIONS OF THE DEFENDANTS
In their final written address, the Defendants/ Counterclaimants submitted the following issues for determination:
a. Whether having regard to the totality of evidence, the claimant has discharged the evidential burden of proof placed upon him pursuant to the relevant provisions of the evidence act?
b. Whether based on the preponderance of evidence, the counter claimants are entitled to judgment in respect of their counter claim?
On the first issue, the learned Counsel for the Defendants submitted that it is the case of the Claimant that he is entitled to an order for payment of N80, 107.33 (Eighty Thousand, One Hundred and Seven Naira Thirty-Three Kobo) being his May 2016 salary but the he is unable to substantiate this claim in the light of the evidence adduced by the Defendants relating to the exercise of their right of lien over the May 2016 salary. That in his evidence in chief, the 1st Defendant testified that the financial burden of prosecuting the appeal against the garnishee order absolute was transferred to the law firm of the Defendants and that the Claimant being responsible due to his negligent acts to the unnecessary financial exposure of the Law Firm to the financial cost of prosecuting the said appeal, the Defendants decided to exercise their rights of lien against the Claimant. On the meaning of lien and when it can be exercised, Counsel cited N.B.A v. Gbenoba [2015] 15 NWLR (Pt. 1483) P. 585 @ P. 619, paras. D-G. Learned Counsel submitted that the Defendants have a right to retain the May 2016 salary of the Claim until the latter indemnifies the former of all his financial losses arising from his negligent act of failing to represent the Law Firm of the Defendants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc on 7th December, 2015 consequently upon which a garnishee order nisi was made absolute against the Client of the Defendants.
Counsel further submitted that the Claimant having not satisfied the demands of the Defendants to defray the expenses of filing and prosecuting the said appeal against the garnishee order absolute, the Defendants have a right to retain the May 2016 salary of the Claimant and exercise their right of lien in respect of same until their demands are met. Counsel placed reliance on Afrotec Tech. Serv. (Nig.) Ltd v. MIA & Sons Ltd [2000] 15 NWLR (Pt. 692) P. 730 @ P.786, para. D, and paragraphs 26 of the Defendants’ statement of defense.
Learned Counsel contended that the Claimant has also failed to prove his claim for payment of N28, 600.00 (Twenty-Eight Thousand Six Hundred Naira Only) being the total accumulated transport expenses for November, 2015 and January to May, 2016 as there is nowhere in Exhibit C1 where the Defendants agreed to pay the Claimant transport expenses and that under cross-examination, the Claimant himself admitted that there was no provision for payment of transport of expenses in Exhibit C1. Counsel therefore submitted that is trite law that when the court is interpreting the terms of a written contract, the parties are not allowed to import extraneous issues into the contract. Citing Obajimi v. Adediji [2008] 3 NWLR (Pt. 1073) P. 1 @ P. 14. Paras. C-D, the learned Counsel urged this Court to discountenance and disregard the unproven evidence of the Claimant that the payment of transport expenses is the practice of the Law Firm of the Defendants and the general accepted legal industry practice as same are extrinsic and extraneous to the employment contract between the Claimant and the Defendants in Exhibit C1 and to construe strictly the terms of the said employment contract to determine whether or not the Claimant is entitled to transport expenses as claimed. Counsel cited Odukwe v. Ogunbiyi [1998] 8 NWLR (Pt. 561) P. 339 @ P. 352, para. E-F and submitted that having failed to discharged the legal and evidential burden of proof in respect of the claim for transport expenses, this court should dismiss the said claim as same is speculative without proof and lacking in merit.
Learned Counsel further contended that the claim for remittance of N31, 448.69 (Thirty One Thousand Four Hundred and Forty-Eight Naira Sixty Nine Kobo) deducted personal income tax directly to the Claimant’s Lagos State Inland Revenue Service (LIRS) Account No: N-2986970 is baseless and without any legal or factual foundation whatsoever, that in his evidence in chief, the 1st Defendant adduced credible evidence to the effect that all personal income taxes due to the Claimant have been duly remitted and tendered in proof Exhibit D8. Counsel reproduced Section S. 131(1) of the Evidence Act 2011 provides and argued that having not also discharged the burden of proof as required by law in respect of the claim for remittance of personal income tax, the said claim ultimately fails for the simple reason, that there is no evidence before this Honorable Court in proof of the fact that the Defendants failed to remit the taxes due to the Claimant rather the Defendants tendered exhibit D8 which are tax receipts evidencing the fact that the taxes due to the Claimant were duly remitted.
Counsel went on that assuming without conceding, that the Defendants failed to prove the payment and remission of the said taxes, the only person or authority with the right to sue for such remittance is the Lagos State Government but not the Claimant. Counsel reproduced Section 54 of the Personal Income Tax Law of Lagos State and submitted that the Claimant does not have the locus standi to institute this suit to claim for remittances of personal income taxes as same is within the exclusive province of the Lagos State Government. Counsel also cited Charles v. Gov., Ondo State [2013] 2 NWLR (Pt.1338) P. 294 @ P.313, paras. E-F, and contended that this Court is divested of jurisdiction to adjudicate the claim for remittance of taxes as the Claimant lacks the requisite locus standi to set in motion the machinery of justice to drive home his claim and urged this Court to so hold.
The learned Counsel averred that in paragraph 15 of the Claimant’s Reply to Defendants’ Statement of Defense and Defense to Counterclaim, the Claim expressly admitted Paragraph 40 of the Defendants’ Statement of Defense wherein the Defendants averred that all pension entitlements from November, 2015 to May, 2016 due to the Claimant had been duly paid and remitted and there were on arrears of pension payments. Counsel therefore submitted that it is settled law that where a pleaded fact is admitted there is no need for further proof. Reliance is placed on Dauda v. L.B.I. Co. Ltd [2011] 5 NWLR (Pt. 1241) P. 411 @ P. P.424, paras. E-F.
To the learned Counsel, the claim for an order compelling the Defendants to issue a statement indicating the periods the Claimant was employed, being November, 2015 to May, 2016 is without any legal basis Counsel therefore urged this Court discountenance same as strange and unknown to law.
Counsel finally submitted in this regard that from the totality of the evidence adduced, the Claimant is unable to establish the liability of the Defendants to him with respect to all the reliefs contained in the Statement of Claim. That damages are direct corollary of liability. On when damages will not be awarded, the learned Counsel referred to Anike v. S.P.D.C.N Ltd [2011] 7 NWLR (Pt. 1246) P. 227 @ P. 244, para. B.
On the second issue for determination, learned counsel for the Defendants averred that the Defendants as Counter Claimants, are claiming against the Claimant/Defendant to the Counter Claim the sum of N5, 000,000.00 (Five Million Naira) as general damages for negligence of the Defendant to the Counter Claim. Counsel cited Durowaiye v. U.B.N. Plc [2015] 16 NWLR (Pt. 1484) P.19 @ P.36, paras. D-E that defined negligence and contended that the definition of the term “negligence” aptly describes the “culpable carelessness” of the Defendant to the Counter Claim regarding his apparent failure and/or neglect to attend court on 7th December, 2015 to appear and represent the client of the Counter Claimants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc. Counsel argued that the Defendant to the Counter Claim did not deny that he failed to attend court proceedings on the 7th day of December, 2015.
The learned Counsel submitted that for the Counter Claimants to succeed in their claim against the Defendant to the Counter Claim for the tort of negligence, all they need to establish are the essential ingredients of the tort namely duty of care, breach of duty of care and damage resulting from the breach. Citing Bouygues (Nig.) Ltd v. O. Marine Services Ltd [2013] 3 NWLR (Pt. 1342) P. 429 @ P. 441, paras. E-F
It is contended by the learned Counsel that in the instant Case, the Defendant to the Counter Claim owed the Counter Claimant a duty of care to ensure that he appears and represents the client of the Counter Claimants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc on 7th December, 2015 after fully becoming aware of the new adjourned date of 7th December, 2015 and assigned to appear in the said case. That the Defendant to the Counter Claim breached the duty of care he owed the Counter Claimants when he neglected to attend court on 7th December, 2015 to appear and represent the client of the Counter Claimants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc. That because of the negligence of the Defendant to the Counter Claim by failing to appear and represent the client of the Counter Claimants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc, the Defendants suffered low patronage from Royal Exchange Plc and was made to bear the financial burden of filing and prosecuting an appeal against the garnishee order absolute granted against their clients. Relying on the authority of Bouygues (Nig.) Ltd v. O. Marine Services Ltd (supra), learned Counsel urged this Court to hold that the Counter Claimants have by the evidence adduced and all the documents tendered established negligence against the Defendant to the Counter Claim. That in the Defendant to Counter Claim’s written statement of oath especially at paragraph 4 of the additional written statement on oath deposed on the 15th day of March, 2018, the Defendant to the Counter Claim stated as follows:
“In further response to paragraph 11, I was not so assigned to attend court sitting on the said date as per the weekly cause list but clearly to attend court because I was in court on the last adjourned date but failed to attend due to inadvertence because I erroneously endorsed 17/12/2015 instead of 7/12/15 as contained in my personal diary and same was not taken away after resignation.”
Counsel went on that during the cross-examination, the Defendant to the Counter Claim gave a conflicting account different from the deposition in his additional statement on oath on the reason why he failed to appear in court on 7th December, 2015 as follows:
“Question: Can you recount why you were absent from the court on 7-12-15
Answer: I forgot that court would be sitting on that date.”
That Counsel to the Counter Claimants drew the attention of Defendant to the Counter Claim to his deposition in his additional statement on oath and the Defendant to the Counter Claim responded as follows:
“Question: Can you recall in your additional statement on oath that you said you inadvertently wrote 17/12/15 instead of 7/12/15
Answer: Yes
Counsel averred that at this point, the Defendant to the Counter Claim’s personal diary was tendered and admitted into evidence and marked as Exhibit C14 and the Defendant to the Counter Claim was asked by Counsel to the Counter Claimants to read the cases endorsed for 17/12/15 in Exhibit C14 and the outcome was that there was nowhere in Exhibit C14 where the case of Olufemi Taiwo V N.B.C. was endorsed for the 17/12/15.
To the learned Counsel this inconsistency in the Defendant to the Counter Claim’s evidence puts a doubt as to the credibility of the Defendant to the Counter Claim and rendered him not a witness of truth. Counsel submitted that the oral evidence of the Defendant to the Counter Claim cannot take precedence over the clear contents of Exhibit C14. Citing Anambra State Government v. Gemex International Limited (2012) 1 NWLR (Part. 1281) 333 @ page. 357, paras. E-G, Stabilini & Co. Limited v. Obasi (1997) 9 NWLR (Part. 520) 293; and Kimdey v. Mil. Governor Gongola State (1988) 2 NWLR (Part. 77) 445.
Learned Counsel went on hat assuming without conceding, that the Counter Claimants are unable to prove the negligence of the Defendant to the Counter Claim, the Court can also infer the facts of the negligence of the Defendant to the Counter Claim by the Doctrine of Res Ipsa Loquitor and on this. Reliance is placed on S.P.D.C.N. Ltd v. Edamkue [2009] 14 NWLR (Pt. 1160) P. 1 @ P. 37, paras. E-G.
The learned Counsel also submitted that Defendants as Counter Claimants are also claiming against the Claimant/Defendant to the Counter Claim in the alternative the sum of N5, 000,000.00 (Five Million Naira) as general damages for breach of contract.
Relying on S.P.D.C.N. Ltd v. Edamkue (supra), learned Counsel submitted that the Defendant to the Counter Claim’s unlawful interference with the proprietary and confidential information of the Counter Claimants including documents, letters, pleadings, agreements and other sensitive and confidential information which the Defendant to the Counter Claim admitted in Exhibit D6 is in breach of employment contract with the Defendants. Counsel referred this Court to the paragraph on confidential information in Exhibit C1.
It is contended by the learned Counsel that the Defendant to the Counter Claim misused the internet resources in the office of the Defendants and unlawfully deleted/cleared his browser history on the Counter Claimants’ office computer to which he was assigned against the office policy of the Counter Claimant to avoid detection in breach of the paragraph on code of conduct/ethical standard in Exhibit C1. That the Defendant to the Counter Claim admitted to this breach in Exhibit D6 and under cross-examination. Below is an excerpt drawn during the cross examination of the Defendant to the counter claim to wit:
Question: Did you delete your browser history on the Defendants’ computer assigned to you?
Answer: I routinely delete, yes.
Question: Are you aware of the Defendants’ policy that prohibits the deleting of browsing history?
Answer: I was aware.
On what amounts to breach of contract, Counsel cited the decision of the Supreme Court in Best (Nig.) Ltd v. B.H. (Nig.) Ltd [2011] 5 NWLR (Pt. 1239) P. 95 @ P.117, paras. A-C.
Counsel also submitted that the Defendant to the Counter Claim having admitted to breach of Exhibit C1, he is in breach of contract and therefore liable in damages to the Counter Claimants. Reliance is placed on Eigbe v. N.U.T [2008] 5 NWLR (Pt. 1081) P. 604 @ P. 632, paras. E-F and Nwaolisah v. Nwabufoh [2011] 14 NWLR (Pt. 1268) P. 600 @ P. 633, para. F
To the learned counsel, the misusing of the Counter Claimant’ s internet resources by the Defendant to the Counter Claim and his tampering of the proprietary and confidential information of the Counter Claimants by transferring same on a USB storage device and depriving the Counter Claimants of the use of their own data and information amounted to unlawful interference with trade and business. Citing Quinn v. Leathem (1901) A.C. 495 at 510 the court per Lord Macnaghten held that it
The learned Counsel further contended that the elements of unlawful interference which the Counter Claimants have successfully pleaded and proved in this case are as follows:
(a) Deliberate use of unlawful means by the Defendant to the Counter Claim to interfere with the trade and business of the Counter Claimants
(b) Interference with the Counter Claimants’ trade and business
(c) Intention of the Defendant to the Counter Claim to injure the Counter Claimants
(d) The Defendant to the Counter Claim causing loss to the Counter Claimants. See Barretts & Baird (Wholesale) Ltd v. IPCS [1987] I.R.L.R 3 @ 6. Citing Bullen & Leake & Jacobs Precedents of pleadings, 15tb Edition, Volume 2 London Sweet & Maxwell 2004.
While concluding, learned Counsel submitted that it is trite that the Claimant is not entitled to any relief since he is in breach of his employment contract by interfering with the proprietary and confidential information of the Defendants and deleting his browsing history. Citing Vinz Int’l (Nig) Ltd v. Morohundiya [2009] 11 NWLR (Pt. 1153) P. 562 @ P.585, paras. B-C. Counsel urged this Court to hold that all the claims of the Claimant fail in their entirety and consequently, the Claimant is not entitled to general damages having failed to establish the liability of the Defendants. That, having discharged the legal and evidential burden of proof in respect of the Counter Claim and placed on the scale of justice credible evidence and materials which weigh heavily in favour of the Counter Claimants, Counsel also urged this Court to grant all the reliefs of the Counter Claimants as contained in their Counter Claim. We rest our case.
THE SUBMISSION OF THE CLAIMANT
In his final written address, the Claimant/Defendant to Counterclaim submitted the following issues for determination:
1. Whether the Claimant is entitled to the claims made?
2. Whether the Defendants have any defence to the claims?
3. Whether the Defendants have any valid/substantiated counter claim?
On the first issue, the Claimant argued that he duly resigned as per the terms of his employment contract as in Exhibit C1 and pursuant to the Labour Act and thus unimpeachably entitled to the net monthly salary of N80, 107.33 for May 2016. The Claimant contended that in an employment contract, provided that an employee fulfils the notice requirement for resignation, not dismissed or indebted, salary cannot be denied to such an employee, that the Defendants have not refused payment on notice grounds or on any other justifiable ground but on grounds that the salary was applied in the alleged prosecution of an appeal resulting from absence of CW in court on 7/12/15. The Claimant urged this Court to so hold as the amount is not in dispute, the notice requirement not in issue and that facts admitted need no further proof. Citing Biosola Ltd v Mainstreet Bank Ltd (2013) LPELR-2206(CA).
The Claimant contended that the transport expenses as seen from Exhibit C9 are all monies spent attending various courts sittings for the office and reimbursement for the costs, that it is very customary to the Defendants not discretionary and that same is usually made at intervals after submission of claims.
it is argued for the Claimant that a custom or wide practice known to a profession, very recognized and practiced need not be contained in a contract of employment or a collective agreement for it to be recognized and enforced and that that it is necessarily implied into the contract. Learned Counsel for the Claimant therefore urged this Court to take judicial notice of this wide practice in the legal profession and order the Defendants to pay the accumulated transport expenses and more so where the total amount of the transport claimed is not denied or disputed.
On the third issue, Claimant said that the Defendants have argued that this is a statutory obligation on their part under Section 82 of Personal Income Tax Act, Cap P8, LFN 2004 and that DW has tendered Exhibit D8 as proof of tax payment but unfortunately, it was for the period July to September 2015 which precedes the Claimant’s employment. Claimant submitted that it is trite that facts pleaded in which no evidence is led goes to no issue, Citing Rajco Int’l v Le Cavalier Motels & Restaurants Ltd (2016) LPELR-40082(CA) at page 15, para B. The Claimant argued that Exhibit C11, being CW’s personal income tax statement of account up to October 2017 proves that no fund was received. The Claimant therefore urged this Court to order the Defendants to remit the claimed sum directly into the personal income tax account of the Claimant with LIRS.
Learned Counsel averred that the Defendants’ Counsel at Paragraph 5.15 of their final written address cited Section 54 of the Personal Income Tax Law of Lagos State, to the effect that the Claimant has no locus standi to make the request for remittance of his tax to the appropriate authority, learned Counsel submitted that from the clear wording of the said provision replicated in their address, it did not say that the demand for tax remittance can only be made exclusively by an employer or that an employee cannot demand same. To the learned Counsel, the provision only placed a burden on an employer to account to the Board and the claim of the Claimant herein is to seek order of Court to compel the Defendants to do that required under the law. Counsel went on that it is out of place to say that an employee has no locus standi or sufficient interest to make the claim. B.B. Apugo & Sons Ltd v OHMB (2016) LPELR-40598(SC),
On the Claimant’s claim for remittance of pension deductions to Stanbic IBTC pensions Ltd in the sum of N64, 800.00, Counsel submitted that in response to Paragraph 40 of the Statement of Defence and Counter Claim, Claimant has admitted in Paragraph 15 of the Reply that the Defendants have paid same and therefore this claim is defeated.
On the claim for the sum of N100, 000 general damages, Claimant submitted that the award of general damages is at the discretion of the court and same is guided by the reasonable man’s test. Citing Andrew v MTN Nigeria (2016) LPELR-41181(CA) pages 11-12, and Osuji v Isiocha (1989) 2NWLR (Pt. 111) 623 at 636, SCNJ 227 at 23. Counsel went on that, in the circumstances, the salary which has been unjustly withheld by the Defendants’ action has compelled the Claimant to brief Counsel at a professional cost in addition to transport expenses for attending court sittings. Counsel further submitted that this claim stands distinct or can be subsumed under cost awardable by this court even without asking under Section 85(2) of the Labour Act, Cap L1, LFN 2004. Counsel therefore urged this Court to award what is at least reasonable as the Claimant will be greatly disadvantaged if no damages and/or cost is awarded in his favour.
On the Claimant’s relief for the Defendants to issue a statement stating the periods he was in employment, learned Counsel submitted that it is not a strange request, it is natural request and very justified, that it is not a letter of attestation or reference but a mere statement stating that the Claimant worked with the firm for the period November 2015 to May 2016 and usually addressed to ‘Who it May Concern’ without more. Counsel urged this Court to order the Defendants to issue same in its simplest form without more.
On the second issue for determination, learned Counsel for the Claimant submitted that the Defendant’s reasons for withholding the Claimant’s salary for May 2016 are very laughable, ridiculous, unfounded under contract and labour law and fails in toto. Counsel submitted that the Defendants have no defence to this case for the following six (6) reasons:
Firstly, it is Claimant’s position that he was queried and he responded, consequent upon which he was penalized with a penalty of N5, 000 which was duly paid and the Defendants further punished him by not paying his December 2015 salary until 8/1/16 as in Exhibit C3. He remained in employment five months after until his resignation notice as in Exhibit C4 and during this period, the Defendants did not deem it fit to sack the Claimant who by Probationary Period Clause in Exhibit C1 was still under the Probationary Period but did in fact took benefits from his services.
Secondly, DW in Paragraph 24 of his Statement on Oath stated that the firm was instructed by Royal Exchange Insurance to appeal the garnishee order absolute. It is the position that when a client instructs a law firm to prosecute a matter, that same is an engagement for provision of legal services which will be paid for except done gratis. During cross examination, DW admitted that the firm was instructed by Royal Exchange Insurance but somersaulted when he stated that it is the Claimant that will foot the bill for the appeal. The Counsel therefore submitted that by the said instruction contained in Paragraph 24 of DW’s Statement on Oath which is his evidence in chief, the Defendants were duly paid to appeal the suit and your Lordship is urged to so hold.
Thirdly, the Defendants allege that they have appealed the matter and yet failed to exhibit any notice of appeal to prove making the appeal and have not proved payment of N5M alleged to have been paid under Paragraph 20 of DW’s Statement on Oath. It is trite law that facts pleaded in which no evidence is led goes to no issue. This is the position in Rajco Int’l Ltd v Le Cavalier Motels & Restaurants Ltd (supra).
Fourthly, CW relied on the firm’s cause list in attending court for the said week and the said suit slated for 7/12/15 was absent on the cause list that Exhibit C2 which is CW’s meeting copy of the weekly cause list was tendered to show the said suit for 7/12/15 was absent, during cross examination, CW explained why his own copy of the cause list was not signed being that it is usually given to Counsel for use on Thursdays during meetings and after assignment of cases to associates, the names are typed, it is then printed out, signed and pasted. That in repudiation, DW tendered Exhibit D4 during trial which contains only one suit for 7/12/15. Counsel therefore submitted that Exhibit D4 is falsified and a document produced for the purpose of this trial. Counsel went on that it is so falsified and made for this suit, Exhibit D2 which is the 2nd Defendant’s personal diary contains other suits for the week which tallies with that of CW’s Exhibit C2. That the CW further tendered Exhibits C12 and C13 which are certified true copies of court’s cause lists for matters he attended before the Federal High Court on 8th and 11th December 2015 within same week. It is thus established that Exhibit D4 is falsified and produced for this suit. Counsel urged this Court not to attach any weight to Exhibit D4. Counsel continued that the Defendants may want to argue by way of Reply on Points of Law that the office cause list (Exhibit D4) was made from Exhibit D3. That this cannot stand because the office course list is usually made from litigation Counsel’ office diaries (the Claimant and 2nd Defendant in the main) in addition to the office copy and not the office copy alone, that this position was confirmed by CW during cross examination where he said that the cause list is not always made from the office diary. Learned Counsel therefore submitted that it is the role of the Court to make findings of facts based on the credibility of the witness who testified and the probability of their story and properly evaluate the totality of the evidence before coming to a decision to believe or disbelieve a witness or piece of evidence in the just determination of a case. Citing Arabambi v Advance Beverages Ind. Ltd (2005) 1 NWLR (Pt. 959) 1 at 8, (2005) LPELR-529(SC).
Fifthly, that, assuming without conceding that the Claimant is fully negligent by failing to attend court on 7/12/15, learned Counsel submitted that an employer is vicariously liable for the negligent act or conduct of the employee and that is the developed legal position that a person, who enjoys the benefits of another, is equally liable to the losses or harm caused by that other and this situation results in established principle of vicarious liability. Citing Kodilinye & Aluko, ‘The Nigerian Law of Tort’ (Revised Edition), Spectrum Books, 2003, p. 235. and Ifeanyichukwu (Osondu) Motors Ltd v Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at page 41 paras. B-D and Iyare v Bendel Feed and Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300. Learned Counsel contended that the three legs of vicarious liability clearly apply and not disputed and if at all the issue of negligence is substantiated, Counsel urged this Court to apply the principle of vicarious liability and push any liability to the Defendants fully.
Sixthly, it is argued that appealing a matter from a court of first instance is not the end of the fate of a law suit and appealing suits by law firms is part of litigation/work of lawyers/law firms. It is not the position that losing a matter at the High Court for any reason whatsoever means that a Defendant goes without remedy, as a suit lost at the High Court can be upturned at the Court of Appeal or Supreme Court. That it is most likely that the garnishee order absolute can be set aside at the Appeal Court.
Conclusively, Counsel urged this Court hold that the Defendants have no valid defence to the claims of the Claimant and that each of the six (6) reasons argued and presented herein either alone or all in concert unimpeachable shows that no valid defence was made by the Defendants.
On the third issue, learned Counsel for the Claimant averred that the Defendants Statement of Defence and Counter Claim amounts to 45 and 22 Paragraphs respectively while the DW deposed to a 47-Paragraph Statement on Oath covering only the defence part. Counsel submitted that no evidence in chief exist in support of the Counter Claim and it is the law that a witness statement on oath once adopted becomes evidence. Counsel added that it is trite law that facts pleaded on which no evidence is led goes to no issue and should not be considered by the court and that pleading not supported by evidence is deemed abandoned. Citing Ifeta v SPDC Ltd (2016) LPELR-1436(SC), page 10, paras. C-G.
It is submitted by the learned Counsel that a counter claimant has a burden of proving the allegations made on the counter claim to be entitled to judgment thereon Citing. Ekondu Community Bank Ltd v Pasun Global Concepts Ltd (2016) LPELR-41251(CA), at page 14 and 15, paras. G-B.
Counsel averred that if the court wishes to consider the Counter Claim as is and give it validity, he adopted the argument on issue Two in defence to the Counter Claim.
Counsel further argued that it is unequivocally clear that the Defendants are vicariously liable for any damages or loss (if any) suffered. Citing Osondu v Soleh Boneh Ltd, Iyare v Bendel Feed & Flour Mill Ltd and Kodilinye and Aluko on ‘The Nigerian Law of Tort’, supra.
Learned Counsel averred that at Paragraph 12 (b), under the Particulars of Loss in the Counter Claim, the Defendants alleges that N5, 000,000.00 was paid by Royal Exchange Insurance to Mr. Taiwo and yet has not led any evidence in proof of the payment. That the Defendants have not attached any proof of payment of the said amount and that it is the law that pleadings not supported by evidence is deemed abandoned and referred to Ifeta v SPDC Ltd, supra. Counsel further argued, pleadings cannot constitute or replace evidence and in fact, in the absence of evidence, the other party is deemed to have accepted the facts adduced by the Claimant notwithstanding the general traverse (underlining for emphasis). Citing Ifeta v SPDC Ltd.
On allegation of unlawful interference with trade and business, Counsel argued that it is the clear and proven case of the Claimant that all the files of the Defendants are intact and located within the last computer used by him but the DW was unable to locate same, prompting the email of 3/6/16 sent at 15.51pm as in Exhibit C6 and that of 4/6/16 as in Exhibit C7 sent at 06.34pm, wherein the Claimant explained how to locate the files and also agreed to hand over his own flash drive containing same files including those created by him and did in fact hand over same. Counsel went on that after the above explanation, the Defendants were able to locate the files in same computer and also had it in the flash drive handed over to them, the receipt of which the Defendants have not denied and that issue ended as no other emails where exchanged on that. Counsel referred to Exhibit C7.
It is the Claimant’s position that he deletes browser history and cookies to enhance computer processor’s speed and efficiency; and that is a standard practice in the use of computers. It is his position that he did not transfer the files for his private use but did so because: a) he used more than one computer during his employment and there is need to have these files used in another computer and b) he also works at home at some nights and during weekends and will need the files for purpose of the work. Learned Counsel therefore submitted that Paragraphs 17, 18, 19, 21 and 22 are fully countered successfully, totally empty and indeed goes to no issue and that there was no unlawful interference with the Defendants’ trade and business and urged this Court to so hold.
Learned counsel finally maintained that the Counter Claim, if deemed validly made by the court, will be empty because: a) Any claim for negligence, even if substantiated falls to the ground as the argument on vicarious liability herein makes a mess of the counter claim; b) The Defendants have failed to prove that any appeal was in fact made by exhibiting a notice of appeal even after a notice to produce was given by the Claimant; c) The Defendants have failed to prove by evidence of the said payment of N5M to Mr. Taiwo; d) The Defendants allegation of the Claimant stealing its files is totally false as the files were indeed found within the computer; and same was never stolen but in the hands of the Claimant by virtue of his job.
The learned Counsel for the Claimant/Defendant to counterclaim to grant the claims of the Claimant and discountenance the defence and counter claim as both are lacking in merit, gold-digging, ridiculous, a show of ego and unfounded under employment labour law and to award general damages and cost of the suit against the Defendants for compelling the Claimant to seek redress in court through Counsel.
DEFENDANTS/COUNTERCLAIMANT’S REPLY ON POINTS OF LAW TO THECLAIMANT/DEFENDANT ‘S TO COUNTERCLAIM FINAL WRITTEN ADDRESS
In response, the Defendants have now filed their Reply on Points of Law in opposition to the Claimant’s Final Written Address. The leaned counsel to the Defendants submitted that the Claimant has misconceived the issue of law relating to the Defendants’ legal right of retaining the May 2016 salary of the Claimant until the Claimant indemnifies them of all their financial losses arising from the Claimant’s negligent act of failing to represent the Law Firm of the Defendants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc on 7th December, 2015 consequent upon which a garnishee order nisi was made absolute against the Client of the Defendants. Counsel contended that the Defendants only exercised their right of lien to retain the May 2016 salary of the Claimant until the latter fulfils his outstanding obligations to the former but the Claimant in his Final Written Address did not address the Court on this salient legal issue which forms the fulcrum of the Defendants’ defence to the claim for an order for payment of N80, 107.33 (Eighty Thousand, One Hundred and Seven Naira Thirty-Three Kobo) being May 2016 salary. Counsel further argued that it is a common-law remedy which is independent of the employment contract between the parties but available to ensure the performance of existing obligations. Reliance is placed on Livestock Feeds Plc v. Okezie [2002] 10 NWLR (Pt. 775) P. 341 @ P. 354, paras A-B; D and Afrotec Tech. Serv. (Nig.) Ltd v. MIA & Sons Ltd [2000] 15 NWLR (Pt. 692) P. 730 @ P.786, para. D.
Learned Counsel therefore urge this Court to discountenance the Claimant’s argument on admitted facts requiring no further proof as same is misconceived and a ploy to misdirect this Court. To the learned Counsel, the core issue for the Court to decide is whether the Defendants duly exercised their common law right of lien by retaining the May 2016 of the Claimant in view of the outstanding obligations the Claimant owed the Defendants.
Learned Counsel averred that the argument that the Claimant is entitled to the payment of N28, 600.00 (Twenty-Eight Thousand Six Hundred Naira Only) being total accumulated transport expenses for November 2015 and January to May 2016 because it is a widely practiced custom in the legal industry that employees are reimbursed transport expenses is clearly untenable and falls flat in the face of the law. That the law is that any party who wants to rely on the application of any custom to his case must lead positive evidence to establish same otherwise his case would fail. Counsel reproduced Section 73, 16 and 131 (1) of the Evidence Act, 2011.
In response to the argument that the Court should take judicial notice of the alleged widely custom of re-imbursement of transport expenses, learned Counsel maintained that the position of the law as to when judicial notice may be taken of a custom is provided in Section 17 of the Evidence Act thus:
“A custom may be judicially noticed when it has been adjudicated upon once by a superior court of record.”
Counsel also placed reliance Tatu v. Estate of Late Alh. I. Adamu [2015] 13 NWLR (Pt. 1476) P. 364 @ P. 393, para. D.
It is also contended by the learned Counsel that apart from the failure of the Claimant to lead positive evidence to establish the alleged widely custom of re-imbursement of transport expenses, he has also failed to cite any judicial authority wherein the alleged custom has been judicially acted upon. Counsel urged this Court to so hold.
Counsel also averred that it is settled law that oral evidence cannot be used to prove or contradict the contents of a document as the document speaks for itself. On the best evidence of the contents of documents. Citing Fagbenro v. Arobadi [2006] 7 NWLR (Pt. 978) P. 172 @ P. Pp. 196-197, paras F-A). Counsel urged this Court to disregard the argument of the Claimant that Exhibit D8 is for the period of July to September, 2015 and let Exhibit D8 which is a copy of the Defendants’ tax receipts with a covering letter in respect of the taxes remitted on behalf of the Claimant speaks for itself.
The learned Counsel averred that Section 82 of the Personal Income Tax Act cited by the Claimant reinforces the Defendants ‘case and is in pari materia with Section 54 of the Personal Income Tax Law of Lagos State earlier cited in our Final Written Address in support of the Defendants’ position that the appropriate person or authority to sue for any alleged unremitted tax in respect of deducted emoluments of the Claimant is the Lagos State Government. To put the foregoing in clear perspective, Counsel reproduced Section 82 of the Personal Income Tax Act and Section 54 of the Personal Income Tax Law of Lagos State.
To the learned Counsel, the foregoing provisions clearly establish that the appropriate person or authority to sue for any alleged unremitted tax in respect of deducted emoluments is the relevant tax authority or Lagos State Government. Thus, the Claimant does not have the requisite locus standi to institute this suit to claim for remittances of personal income taxes as same is within the exclusive province of the Lagos State Government.
On the correct position of the law on the vexed question of locus standi, Counsel referred this Court to the case of Yar’adua v. Yandoma [2015] 4 NWLR (Pt. 1448) P. 123 @ P. Pp. 173-174, paras. E-A and contended that the Claimant, having failed to establish the requisite locus standi to claim as a legal right an order for the remittance of N31, 448.69 (Thirty-One Thousand Four Hundred and Forty-Eight Naira Sixty Nine Kobo) deducted personal income tax directly to the Claimant’s Lagos State Inland Revenue Service (LIRS) Account No: N-2986970, this claim consequently fails and urged this Court to so hold.
In opposition to the argument in support of the claim for payment of N100, 000.00 (Hundred Thousand Naira) as general damages, Counsel argued that the true position of the law is that damages will not be awarded when liability is not established. Citing Anike v. S.P.D.C.N Ltd [2011] 7 NWLR (Pt. 1246) P. 227 @ P. 244, para. B. and Vinz Int’l (Nig) Ltd v. Morohundiya [2009] 11 NWLR (Pt. 1153) P. 562 @ P.585, paras. B-C. Having failed to discharge the legal burden of proof as required by law, it is our contention that the case of the Claimants fails on all fronts and same should be dismissed with punitive cost against the Claimant and the claim for payment of N100, 000.00 (Hundred Thousand Naira) as general damages should be refused accordingly.
It is contended by the learned Counsel that a claim in a civil action must be founded on a cause of action otherwise it will be discountenanced by the Court. Any claim that does not have any cognizable cause of action will melt away and cannot stand the test of the superheated crucible of the law. Citing Victor v. F.U.T.A. [2015] 4 NWLR (Pt. 1448) P. 1 @ P.58, paras. C-D, Counsel argued that the claim for an order compelling the Defendants to issue a statement indicating the periods the Claimant was employed, being November, 2015 to May, 2016 is without any legal basis and urged this Court to discountenance same as strange and unknown to our laws.
Learned Counsel further argued that contrary to the position of the Claimant that the Defendants failed to prove the appeal against the garnishee order absolute by failing to exhibit the notice of appeal and that they also failed to prove payment of the sum of N5, 000,000.00 (Five Million Naira), it is the law that pleaded facts may be proved orally or through documentary evidence depending on the circumstances of the case. That the foregoing argument with respect to oral evidence enjoys statutory flavor under Order 40 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
In answer to the argument of the Claimant that Exhibit D is falsified, Counsel averred that it is the law that where fraud is alleged, it must be particularized and proved beyond reasonable doubt since it is criminal in nature. Citing Otukpo v. John [2012] 7 NWLR (Pt. 1299) P.357 @ P. 386, para. D, and S. 135(1) of the Evidence Act. To Counsel, the Claimant having failed to discharge the heavy and onerous burden of establishing the falsity of Exhibit D4 which is proof beyond reasonable doubt, this Court should disregard the argument of the Claimant more so that the Claimant admitted under the fire of cross examination that Exhibit C2 is not the official cause list of the law firm of the Defendants/Counter Claimants.
The learned Counsel further contended that argument of the Claimant/Defendant to the Counter Claim that the Defendants/Counter Claimants are vicariously liable for his negligence and tortuous act in failing to attend court on 7th December, 2015 to appear and represent the client of the Counter Claimants in Suit No. LD/1112/2012 Olufemi Taiwo & Another v. Nigerian Bottling Company Plc is untenable, without legal foundation and cleverly designed to misdirect this Court. That the principle of vicarious liability presupposes that an employer will shoulder the tort liability of his employee who commits tortuous acts within the scope of his employment against third parties. And that the emphasis here is on third parties. That this principle is encapsulated in Iyere v. B.F.F.M. Ltd [2008] 18 NWLR (Pt.1119) P. 300 @ P. 330, paras. A-F).
The learned Counsel argued that the concept of vicarious liability was designed to protect third parties by giving them civil remedy against the employer of a tortfeasor in respect of the tortuous acts of the employee tortfeasor. That the principle of vicarious liability, therefore, is not a shield for an employee tortfeasor who commits tortuous acts against his own employer as wrongly argued by the Claimant/Defendant to the Counter Claim. To the learned Counsel, It is therefore preposterous to hold an employer vicariously liable to an action in tort at the suit of such employer against the tortuous acts of his employee.
The learned Counsel also argued that the law does not specifically require additional witness statement on oath for the Defendants’ Counter Claim as opined by the Claimant. To the Counsel, all that the law requires to prove a case is written deposition and oral examination of witnesses in open court whether it is a claim, defence or counter claim is immaterial. Reliance is placed Order 40 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
The learned Counsel urged this Court to hold that all the claims of the Claimant fail entirely and consequently, the Claimant is not entitled to general damages having failed to establish the liability of the Defendants. To learned Counsel, having discharged the legal and evidential burden of proof in respect of the Counter Claim and placed on the scale of justice credible evidence and materials which weigh heavily in favour of the Counter Claimants, this Court should grant all the reliefs of the Counter Claimants as contained in their Counter Claim.
COURT’S DECISION
I have carefully examined the processes filed, the evidence led and the submissions of the parties in this case. The crux of the claimant’s case is that the Defendant has wrongfully withheld his May 2016 salary, accumulated transport expenses and non-remittance of his personal income tax to the Lagos State Inland Revenue Service by the defendant. The Defendant’s case is that it is withholding the claimant’s May 2016 salary in the excwecise of its right of lien over the loss caused it by the claimant for his failure to represent the defendant’s client in a matter which led to the grant of an order nisi absolute against its client and for which it is appealing against. It is also the defendants’ case that the claimant has, during his employment, stolen their intellectual properties and interfered with their trade and business.
From the foregoing, the issues that presented themselves for determination are:
1. Whether the claimant is entitled to any all the reliefs sought.
2. Whether the Defendant has proved his counter claim against the claimant.
The general position of the law regarding the standard of proof in civil proceedings is that the claimant must succeed upon the preponderance of evidence or on the balance of probabilities. The burden of proof in civil proceedings lies on the party who would fail if no evidence were given on either side. See Hon. Julius Oyebanji Akinremi v Mr. Ipoola Buniyo & Ors (2010) LPELR 9150 CA, see also Sections 132 and 133 of the Evidence Act 2011.
The claimant’s relief one is for an order for payment of the sum of N80,107,33 being the claimant’s May 2016 Salary. The claim a averred that he was employed by the defendant as an associate course on the November 2nd 2015. The claimant tendered Exhibit C1, the claimant’s offer of employment. It is not in dispute that the claimant had continued to work for the Defendant till May 25, 2016 when the claimant submitted Exhibit C4 which is the notice of resignation with effect from 27-6-2016 to the 1st defendant. The defendants then decided to relieve the claimant from his obligatory one month notice consequence upon which the claimant’s resignation took effect from May 272016. As it is, the claimant can rightly claim entitlement to May 2016 salary having worked for it but the defendants did not yield to the claimant’s demand for that.
In response to the claimant’s demand for the May 2016 Salary, the defendants’ contention is that they were briefed to represent a client in a garnishee proceedings in which order nisi was already granted against the said client and the defendant’s being new counsel in the matter, had to apply for change of Counsel and the claimant was assigned to represent the defendants’ firm in the matter that came before the Lagos State High Court on 7-12-15 but the claimant failed to attend and as a result of which the court struck out the defendant’s application for change of Counsel, went ahead and made the order absolute against the defendant’s client where the client was ordered to pay the sum of N5,000,000.00. to the judgment creditor. To the Defendants, they retained the claimant’s salary as a lien for prosecuting the appeal against the order absolute. The claimant’s response in his further statue on oath is that he inadvertently fixed the case for 17-12-15 in his personal diary and that in a firm’s course list, the case in question was not fixed for 7-12-16.
Exhibit C2 is the cause list tendered by the claimant, it is unsigned, under cross examination, the claimant was asked to look at his personal diary, EX. D2, to tell the Court where the case in question was fixed for 17-12-15 before the Lagos High Court but the claimant failed to do so. The defendants in their effort to prove the claimant’s failure/negligence to attend the Court on 7-12-15 also tendered among others, Exhibit D4, the defendants’ firm course list from 7-11 December 2015 and in it, the case in question was assigned to the claimant and it came up on the 7-12-15 before the Lagos High Court. From the forgoing I find that the claimant has negligently failed to attend Court on 7-12-15 as rightly argued by the Defendant’s.
Given that the claimant was employed on Nov. 2, 2015 to serve for a probationary period of 6 months after which his appointment would be confirmed but the claimant negligently failed to attend Court on 7-12-15, consequent upon which his December salary was deferred till some times in January 2016 and he was made to pay N5,000 while the defendants continued to pay him salary for months of January, February, March and April 2016, it is my humble view which I find and hold that the Defendants have thereby condoned whatever wrong committed by the claimant. Withholding the claimant’s salary for May 2016 after relieving him of the obligatory one month notice following his tendering of resignation letter is an afterthought. The Law is that where an employer is lax in discipline an employee, that would be read as condoning the act of the employee. See Abdulrahman Mariam v University of Ilorin Teaching Hospital Management Board & Anor (2013) 35 NLLR (PE 103) 40 N/C. This being the case, I find and hold that relief one is grantable and I so hold.
Relief two is for the sum of N28,600.00 being the accumulated transport expenses for November 2015 and January to May 2016 for attending courts incurred by the claimant while in the defendants’ employment. The claimant tendered Exhibit C9, the memo from the claimant to the Defendants indicating the trips undertaken. To the claimant, payment of transport expenses to counsel is a custom or wide practice known very recognized and practiced that it need not be contained in a contract of employment or collective agreement for it to be recognized and enforced, that it is necessarily implied into the contract and a wide practice that this Court should take judicial notice of it.
Exhibit C1 is the written contract of employment that government that governed the relationship between the parties to this suit. It is not in dispute that provisions about reimbursement of transport expenses is not included in Exhibit C1, the claimant’s argument is that it is implied in to the contract because it is a general customary, practice in the law profession. With respect to the leaned course for the claimant, I find this argument misleading. The general rule is that where the parties have embodied the terms of the agreement or contract in a written document as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. Where the parties enter a contract, they are bound by the terms of that contract and it is unfair to read in to such a contract the terms on which there was no agreement. see Layade v Panalpina World Transport Nigeria Ltd. (1996) LPELR-1768 (S.C), Galoye v Balogun (1990) 5 NWLR (pt. 148), Galoye v. Balogun (1990) 5 NWLR (pt. 148) and Union Bank of Nigeria Ltd V. Gzigi (1994) 3 NWLR (pt. 333) 385. This being the case, I find that the claimant has failed to prove his entitlement to relief two and I so hold.
Relief 3 is for an order for remittance of N31,448.69, the deducted personal income tax directly to the claimant’s Lagos State Inland Revenue Service (LIRS) Account No. N-2986970. In proof of his entitlement to this relief, the claimant tendered Exhibit C11, the tax remittance statement dated Nov. 23, 2017 covering the period of Nov. 1, 2011 to Nov. 23, 2017 which reflected the payment made on 3/11/2011, 9/12/2011 and 28/12/2011. The evidential burden has now been shifted to the defendants to prove otherwise. See Nwavu & Ors. v Okoye & Ors. (2008) LPELR-2116 (SC).
The defendants’ contention is that all personal income tax due to the claimant have been duly remitted, relying on Exhibit D8. To the defendant, assuming but not conceding that the defendants have failed to prove the remittance of the said tax, it is only Lagos State Government that can sue for same and that the claimant lacks the locus standi to claim for remittance of tax to the Lagos State IRS and this robs the court of the Jurisdiction to entertain same.
I have painstakingly examined the contents of EXD8, it is a bundle of documents in two sets, the first set includes a covering letter, a cheque in favour of the LIRS for the sum of N53,250.00, representing the tax payment for employees in the Defendants’ firm for the months of November and December 2015 with a schedule attached which included the claimant’s name and the Lagos State Government’s Revenue receipt evidencing payment of same. The second set of documents includes a covering letter addressed to the Managing Partner, Bolanle Mustapha and Co. 7 Ijaoye Street Jibowle, Yaba, Lagos, titled TAX PAYABLE (PAYET) TO LIRS FOR THE PERIOD JANUARY TO MAY 2016 in favour of the Defendant firm’s employees with a cheque of N152,866.65 attached, also attached are the schedule of payment bearing the names of the claimant and other employees in the Defendants’ firm and the receipt Evidencing payment of same issued by the Lagos State Government. I also find from the two schedules of payment that the total sum of the tax paid in favour of the claimant is N31,448.69 which tallies with the amount being claimed in the claimant’s relief 3. I am therefore satisfied that the Defendants have discharged evidential burden shifted to them in respect relief 3, this being the care I find that relief 3 is not grantable and I so hold.
Relief 4 is for an order for remittance of N64,800 being pension entitlement to the claimant’s IBTC Stanbic Pensions LED which claimant abandoned in Paragraph 15 of his reply to the defendants’ statement of defence/defence to counterclaim for same having been remitted to the claimant’s IBTC Stanbic Pension Ltd account. The relief, having been abandoned, is hereby struck out. see Adiatu Ladunmi & Anor v Wema Bank Limited & Anor (2010) LPELR 4418-CA.
Relief 5 is for the sum of N100,000 as general damages. I shall skip it now till the end of this Judgement.
Relief 6 is for an order compelling the Defendants to issue a statement indicating the periods the claimant was employed being November 2015 to May 2016. To the claimant, he is not demanding for a letter of attestation or reference but a mere statement indicating the period he had worked for the defendants. To the defendants, this claim is without legal basis, that it is strange, unknown to Law and as such should be discountenanced by this Court.
It is not in dispute that the claimant was employed by the defendants, that he had served the defendants from Nov. 2015 to May 2016 when he voluntarily resigned from the defendants’ employment. From the foregoing, I feel it would not be out of place if the claimant demands for a statement from the defendants indicating the period he served. This I think, is in accord with the global practice in labour relations. This being the case, I find that relief six is grantable and I so hold.
The second issue is whether the Defendant has proved their counter claim against the claimant.
The Defendants claim against the claimant as follows:
a. The sum of N5,000,000 as general damages negligence of the Defendant to counter claim.
b. The sum of N5,000,000 as general damages for unlawful interference with trade and business.
c. The sum of N5,000,000 as general damages for breach of contract
d. The sum of N5,000,000 being cost of the counterclaim.
On relief a, I earlier found that the claimant was neglect in failing to attend Court on December 7th – 2015 which led to the grant of order nisi absolute against the Defendants’ client. However, having held that the Defendants failure to promptly take a disciplinary action against the claimant’s/defendant to counterclaim is deemed as condoning the negligence, it is my humble view which I find and hold that relief 9 is not grantable. All the counter claimants’ arguments in this regard are hereby discountenanced.
Relief “b” is for N5,000,000 as general damages for unlawful interference with trade and business. The counter claimants did not adduce any evidence to prove their entitlement to this relief. Aside this, interference with trade or business does not, in my view, falls within the Jurisdiction of the Court under section 254C of the CFRN 1999 as amended. This being the case, relief b is hereby struck out.
The Counterclaimants’ main reliefs having failed, the next thing is to determine the alternative reliefs. Relief C for N5,000,000 as general damages for breach of contract. The counterclaimants have argued that the Defendant to the counterclaim has in lawfully interfered with their proprietary and confidential information such as document’s letters, pleadings, agreements and other sensitive confidential information as he admitted in Exhibit D6which to the defendants, amounts to a breach of contract of employment. Reliance is placed on the paragraph on confidential information in Exhibit C1. The Defendant to them counter claim was also accused of deleting/clearing his browser history on the counterclaimant’s office computer assigned to him against the counterclaimant’s policy to avoid detection and in breach of the paragraph on code of conduct/ethical standard in Exhibit C1 which the counterclaimants said Defendant to the counterclaim has admitted under cross examination.
The counterclaimants did not lead any evidence in proof of the allegation of interference with their proprietary and confidential information by the defendant to the counterclaim. They alleged that he deleted his browsing history to avoid detection which deletion is against counterclaimants policy, they tendered EX D6 in proof of their allegation. In Exhibit D6, the Defendant to counterclaim had explained to the counterclaimants the folder in which the files are arranged in the computer. He admitted the clearing of his browser history as a matter of routine practice and to free the system of trapped cookies and to enhance processor speed. The alleged policy prohibiting the deletion of browser history is not contained in Exhibit C1, it was not also tendered before this Court, the policy was only quoted and referred to in Exhibit D7, the said policy was not pleaded, it therefore goes to no issue; it is settled law that a document referred to in another must be specifically pleaded in its own right before it can be of any evidential value in other words, there is nothing like derivative pleadings see Oyediran v Alebioosu; (1992) NWLR (pt. 249 550; (1992) LPELR_2868 (SC). This being the case, I find that relief c is not grantable and I so hold.
Relief D. is for N5,000,000 as the Court of the counterclaim, the counter claim having filed in its entirely the relief for cost automatically fails and I so hold.
In all and for the reasons stated, I find that the claimant’s case succeeds only in terms of relief 1 and 6, I also find that the counterclaim fails and it is hereby dismissed. For the avoidance of doubt, I make the following orders which must be complied with within 30 days of this judgment:
- The defendants shall pay to the claimant the sum of N80, 107.33 being the claimant’s salary for May 2016.
- The defendants shall write and issue to the claimant, a statement indicating the period spent by the claimant in their employment covering November 2, 2015 to May 27, 2016.
Judgment is entered accordingly. I make no order for cost.
………………………………………………………
HON. JUSTICE MUSTAPHA TIJJANI
