TAYLEK DRUGS COMPANY LIMITED v. PETER ONANKPA
(2018)LCN/12122(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of November, 2018
CA/MK/60/2017
RATIO
ACTION: WHETHER COUNTER-CLAIM STANDS ON THE SAME PEDESTAL AS A CLAIM
“It is the law that a counterclaim stands on the same pedestal as a claim. It is a separate and distinct action, and a counter-claimant like all other plaintiffs, must prove the claim against the person being counterclaimed against before he can obtain judgment on the counterclaim. This is a well known principle of law. See Maobison Inter-Link Associated Ltd V UC Nig Ltd (2013) 20335(SC) 13; Ogiren V Amzat Olufunmilayo (2015) LPELR-24295(CA) 25; & Dabup V Kolo (1993) 9 NWLR (Pt. 317) 254. Therefore, a counter-claimant has the onus to adduce credible evidence to prove the assertions in his counterclaim. Where he fails to so prove, the burden of proof does not shift to the Respondent and he fails to prove his claim on a balance of probability as required by law. See Section 133(1) of the Evidence Act, 2011.” PER JUMMAI HANNATU SANKEY, J.C.A.
COURT AND PROCEDURE: WHERE EVIDENCE IS LEGALLY INADMISSIBLE
“Secondly, the law is trite that a Court of law cannot countenance or act upon legally inadmissible evidence, even where it has been admitted in evidence without objection or by the consent of both parties. Exhibits DW16, DW17 and DW21 are evidently and unarguably unsigned and undated documents. Thus, the lower Court was on solid ground when it declined to place any weight or act on them, and instead expunged Exhibits DW16 and DW17 from the Record. See Section 94(1) Evidence Act, 2011; Omega Bank Ltd V OBC Ltd (2005) 1 SCNJ 150; Global Soap & Detergent Ind. Ltd V NAFDAC (2011) All FWLR (Pt. 599) 1025; & Ikem V Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476. I see no reason to disturb this finding.” PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
TAYLEK DRUGS COMPANY LTD Appellant(s)
AND
PETER ONANKPA Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the National Industrial Court, Makurdi Division sitting at Makurdi. Therein, Judgment was delivered in favour of the Respondent as Claimant before the trial Court, while the counterclaim of the Appellant as Defendant/Counter-claimant was dismissed.
The Respondent a Pharmacist, as claimant was employed by the Appellant as a Medical Representative under a written contract which was subject to confirmation after probation for a period of nine months. The letter of appointment stated the terms of employment in respect of remuneration, other allowances and termination of the employment. In respect of the latter, it stated that either party could terminate the employment during the period of probation by giving two week’s notice or payment in lieu of notice. For reasons of poor performance, the Appellant declined to confirm the appointment of the Respondent after the expiration of nine months stipulated as agreed in the contract of employment, and instead wrote two letters to him stating her reasons for not doing so. Despite this, the Respondent continued to work with the Appellant and even received an upward review of his salary and allowances. Sometime after his confirmation had been deferred twice, the Respondent wrote a letter to the Appellant explaining his non-performance and asked for more time to improve.
However, the Appellant failed to pay the Respondent his salaries for a period of seven months and so the Respondent handed in his resignation. The Appellant however refused to accept his resignation and alleged instead that the Respondent had misappropriated the funds of the Appellant. Consequently, the Respondent filed a suit before the lower Court claiming from the Appellant inter alia, his salary from April to November, 2014. The Appellant denied the claim and counterclaimed for the sums of money which she alleged was misappropriated by the Respondent. The Appellant in turn denied the counterclaim.
At the trial, the Respondent testified for himself as CW1 and tendered a total of eleven documents marked Exhibits CWA-CWI. The Appellant, on her part, testified through DW1 and tendered a total of 21 documents marked Exhibits DW1-DW21.
After the final addresses of Counsel, the lower Court in its Judgment found in favour of the claim of the Respondent and dismissed the Appellant’s counterclaim. Aggrieved by this decision, the Appellant filed an Appeal complaining on five grounds.
At the hearing of the Appeal on 18-09-18, R.C. Ndefo Esq. appearing with E.G. Yaji Esq., adopted the Appellant?s Brief of argument filed on 24-02-17 and settled by R.C. Ndefo Esq., in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and enter Judgment for the Appellant on his counterclaim.
A.A. Chukwuma Esq., for the Respondent equally adopted the Respondent’s Brief of argument filed on 24-03-17 and settled by A.A. Chukwuma Esq., after he had withdrawn issue one form the five issues framed for determination therein. He urged the Court to dismiss the Appeal and affirm the Judgment of the lower Court.
From the five grounds of appeal, the Appellant distilled the following four issues for determination:
1. Whether the trial Court was right in holding that the Respondent’s employment was deemed to have been confirmed after 9 months from the date of his employment. (Grounds 1 & 2)
2. Whether the Respondent is deemed to have accepted Appellant’s letter of deferment or has waived his right by not rejecting the letters of postponement of his confirmation. (Ground 3)
3. Whether the trial Court was right to have awarded the Respondent his annual salary when there is evidence that he received his salary up to the date he resigned his appointment. (Ground 4)
4. Whether the trial Court was right in dismissing the Appellant’s counterclaim. (Ground 5)
The Respondent adopted the four issues for determination as crafted by the Appellant. Issues 1 and 2 were argued together and then issues 3 and four separately. They shall be addressed in the same order.
However, from the onset, I must observe for the sake of clarity that whereas the Appellant tendered and the lower Court admitted in evidence and duly marked a total of 21 documents as Exhibits DW1-DW21, the Appellant in his Brief of argument wrongly referred to the documents with strange markings not borne out by the Record of proceedings of the Court. Therefore, wherever such have occurred, I have endeavored in this Judgment to refer to them properly in tandem with the markings of the lower Court so admitting them in evidence.
Issues one and two:
1. Whether the trial Court was right in holding that the Respondent’s employment was deemed to have been confirmed after 9 months from the date of his employment.
2. Whether the Respondent is deemed to have accepted Appellant’s letter of deferment or has waived his right by not rejecting the letters of postponement of his confirmation.
It is the submission of the Appellant that at the time she issued Exhibit CWB dated 13-12-12, the first letter deferring the confirmation of the Respondent’s employment, the Respondent had worked for almost eight months outside the period of probation without complaining. Even thereafter, the Respondent did not resign to terminate his contract of service. On 30-01-14 when the Respondent’s salary was reviewed upwards, he accepted it and continued working. The Appellant submits that by Exhibit CWB, the Appellant found the performance of the Respondent unsatisfactory. However, instead of sacking him, she gave him an extension of time to improve.
While the trial Court accepted that a probationary period can be deferred, she held that such a deferment should be done timeously. The period considered reasonable was not however specified by the Court. The Appellant attempted to distinguish the facts in the two cases relied upon by the lower Court, to wit: Iwuji V Federal Commissioner For Establishments (1985) WSCC 580; & Awolowo University V Onabanjo (1991) 5 NWLR (Pt. 193) 549.
He contended that in those cases, the employer did nothing after the probationary period had lapsed, while in the instant case the Appellant gave the Respondent notice that it would not confirm his appointment but would defer it. It is also contended that the Respondent, by applying for a loan and for compassionate leave, is deemed to have accepted the deferment of his confirmation.
It is further contended that even though the Appellant for the second time deferred the Respondent’s confirmation of employment on 30-01-14 (Exhibit CWC), she reviewed the Respondent’s salary upwards on the same date (Exhibit DW11). The Respondent did not reject the offer or resign, but still continued working with the Appellant until November, 2014. It is therefore submitted that it is reasonable to presume that the Respondent waived his right to complain about the deferment. Reliance is placed on Udoh V Michelleti & Sons Ltd (1997) 7 SCNJ 447. The Appellant contends that the Respondent kept the contract of his employment alive until the Appellant raised the question of his misappropriation of her funds. The Court is therefore urged to answer issues 1 and 2 in the negative.
In response, the Respondent submits that when parties enter into a contract, they are bound by the agreed terms of the contract. Thus, if any question should arise with respect to the contract, the terms of the contract are the guide to its interpretation. Baba V NCAA (1991) 5 NWLR (Pt.) 388 at 392-393; Alade V Alic Nig. Ltd (2011) All FWLR (Pt. 563) 1849; JFS Invest. Ltd V Brawal Line Ltd (2011) All FWLR (Pt. 578) 867; & AG Ferrero & Co. Ltd V HNCL (2011) All FWLR (Pt. 587) 647 are relied on. Consequently, where parties to an employment contract agree that the probationary period shall be for a specified period or length of time, it shall be so and none of the parties can unilaterally abridge or extend this period.
It is contended that Exhibit CWA, the employment letter of the Respondent embodying the contract between the Respondent and the Appellant, expressly spelt out the terms of the contract; one of which is that the Respondent was offered appointment as a Medical Representative on probation for nine months. It was the case of the Respondent that at the expiration of the probationary period on 25-04-12, the Appellant unilaterally postponed the confirmation of his appointment outside the terms of the contract (Exhibits CWB and CWC).
At the trial Court, the Appellant contended that it was the Respondent who requested for the deferments. However, he failed to offer any credible evidence in support of the assertion. Before this Court, the Appellant has contended that the Respondent is deemed to have requested for the deferments or that he has waived his right by not rejecting the letters postponing his confirmation. The Respondent however submits that parties are bound to be consistent in the case they present at the trial Court and the appellate Court. Reliance is placed on Archibong V Ita (2004) 1 SCNJ 141.
It is further submitted that the Appellant did not explain the undue delay in issuing Exhibits CWB and CWC (the deferment letters) until after eight months in the first instance and twenty-two months in the second instance, if indeed the Respondent’s performance was not satisfactory; and that this underscores the Appellant’s motive of an unfair labour practice. It is contended that these periods of time cannot be considered a reasonable time within which to complain of unsatisfactory performance in fair labour relations. The Respondent submits that to hold otherwise would amount to giving judicial impetus to the unfair attitude of employers of labour contriving ways of continuous exploitation by dumping unsuspecting job seekers. He contends that the trial Court’s finding that Exhibit DW18 dated July 9, 2014 (explaining his performance) was made long after the issuance of Exhibits CWB and CWC (the letters of deferment), is unassailable. This finding is further buttressed by the fact that there was no prior complaint by the Appellant against the Respondent’s performance before the purported deferments or issuance of Exhibits CWB and CWC.
The Appellant also submits that the Court is not to make a contract for parties where the terms are expressly stated and agreed on by the parties; but only to give effect to the contract freely entered into by parties. Thus, that the action of the Appellant in issuing Exhibits CWB and CWC finds no support in the express terms of the contract of employment, Exhibit CWA. Since parties are bound by the terms of their contract, the trial Court was right in declaring Exhibit CWB and CWC null and void and of no effect on the contract of employment between the claimant and the defendant. Reliance is placed on some authorities including Dragetanos Constr. Ltd V FAB Madis Ltd; & Kaydee Ventures Ltd V Hon. Min. FCT (2010) All FWLR (Pt. 519) 1079 at 1086.
He contends that in the circumstances, the Respondent’s employment was rightly held to be deemed confirmed after the period of nine months agreed to be probationary. This is because where a staff is retained in the employ of his employer at the expiration of the agreed probationary period and is receiving his monthly salaries and allowances, the staff is deemed to be a confirmed staff of the employer. The rationale for this being that if at the expiration of the probation period, the performance of the staff is unsatisfactory the only option open to the employer is to terminate the appointment of the staff. Any continued retention of the staff after the probationary period means that the employer wants his services. OAU V Onabanjo (1991) 5 NWLR (Pt. 193) 549; & Ude V Osuji (1988) 13 NWLR (Pt. 580) 1 are relied on. The Court is therefore urged to hold that the employment of the Respondent is deemed confirmed at the expiration of his probationary period in April 2012.
On the Appellant’s submission that the Respondent behaved in a manner that kept alive the contract, it is submitted that Exhibit A2/DW2 and Exhibit A6/DW6 dated 23-02-12 and 10-02-12 respectively seeking a loan were made by the Appellant (not the Respondent) before the issuance of the deferment letters and the upward review of his salary on 30-01-14 (Exhibits CWC and CWD). Therefore, the behavior of the Respondent in making the request was not made after the issuance of the letters of deferment to warrant holding it against the Respondent as a waiver. The Court is urged to resolve issues one and two in favour of the Respondent.
Findings –
The Appellant was offered an appointment in terms of the Exhibit CWA on 15-06-11. Paragraphs 1 and 4 of the offer letter states ?
With reference to your application and recent interview, we are pleased to offer you appointment on probation for 9 months as MEDICAL REPRESENTATIVE II with effect from 25th July, 2011?
Termination of employment: either party can terminate employment during probation with two weeks notice or two weeks payment in lieu of notice.
It goes without saying that the terms stated in Exhibit CWA will govern the relationship between the parties. This is because the terms and relationship of a contract are the bedrock of any case in respect of the employment which calls for determination.
I agree with the definition of the word ‘probation’ as given by the learned trial Judge in her Judgment as well as the definition given by the Appellant in the submissions in her Brief of argument. The International Student’s Edition of the Oxford Advanced Learner’s Dictionary at page 1167 defines probation inter alia as:
2. a time of training and testing when you start a new job to see if you are suitable for the work.
Similarly, the Tenth Edition of the Black’s Law Dictionary at page 639 says of a ‘probationary employee’ thus:
‘A recently hired employee whose ability and performance are being evaluated during a trial period of employment.’
The law as settled based on the doctrine of Estoppel and incorporated into Section 169 of the Evidence Act, 2011 is that:
‘When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.’
The words of the contract between the parties are expressly that the Respondent’s appointment was on probation for a fixed period of nine months. Within this period, either party was at liberty to terminate the contract by giving two months notice or paying two weeks salary in lieu of such notice.
From the pleadings and evidence of both parties, none of the above happened. Instead, six months into the probation period, the Appellant purported to defer the confirmation of the appointment of the Respondent citing unsatisfactory performance. No agreement was made in Exhibit CWA to ground such an action. Thereafter, the Respondent continued to work with the Appellant and receive his salaries and allowances as stipulated in Exhibit CWA. However, twenty-two months later, still without expressly confirming the Respondent’s employment or terminating same, the Appellant again deferred the confirmation for a further period of six months citing yet again unsatisfactory performance. Surprisingly however, in the same breath and on the very same day, by a letter dated 30-01-14, the Appellant reviewed and increased the Respondent’s salary.
These two actions cannot be rationally reconciled. For while the failure to confirm the Respondent’s appointment is placed at the doorstep or attributed to unsatisfactory performance, such is rewarded by an upward review of his salaries and allowances as in the Exhibit CWD.
It is evident that for reasons not readily evident but best known to the Appellant, she was not willing to abide by the terms of the contract of employment between the parties and only intended to keep the Respondent perpetually in limbo uncertain about his fate in the Appellant company, with all the attendant insecurities as to tenure, etc that are attendant to her actions. This is indeed an unfair labor practice as much as it is a breach of the contract entered into by the parties. The Appellant is therefore estopped from denying that the Respondent’s employment is deemed confirmed under the terms of the contract, Exhibit CWA, having kept him on in her employ long past the period of probation and testing.
However, learned Counsel for the Appellant has submitted that whereas the nine months probation period ended March, 2013, the Respondent continued to work for another eight months in the first instance and twenty-two months subsequently after the period of probation had ended. He has also argued that by applying for a loan and money to acquire accommodation, Exhibits CWC and CWD, the Respondent is deemed to have agreed to the deferment of his employment and therefore cannot be heard to complain as he has waived his right to complain about the deferment. He relies on Udoh V Michelleti & Sons Ltd (1997) 7 SCNJ 447. The Respondent’s answer to this is that where a staff is retained in the employ of his employer at the expiration of the agreed probationary period and is receiving his monthly salaries and allowances, the staff is deemed to be a confirmed staff of the employer and relies on OAU V Onabanjo (1991) 5 NWLR (Pt. 193) 549; & Ude V Osuji (1988) 13 NWLR (Pt. 580) 1.
After giving due consideration to the authorities cited by both Counsel, I am of the considered view that learned Counsel for the Respondent and the lower Court where right in saying that the decision in the above latter two cases are applicable to the instant case as the facts are virtually on all fours. Therefore, the ratio decidendi particularly in the case of which applied the doctrine of estoppel by conduct to formulate the principle of ‘deemed confirmation of appointment’ is also applicable to this case. The contention of the Appellant that the case is inapplicable because whereas in this case, the Appellant deferred the Respondent’s confirmation, is immaterial. For as rightly pointed out by the Respondent, such a deferment was not within the contemplation of the parties when they entered into the contract, did not form part of the terms of the contract and so cannot be imported therein unilaterally by the Appellant in order to justify her actions.
Indeed, his Lordship, Mustapha Akanbi, JCA (as he then was, and of blessed memory) in the case of OAU V Onabanjo (supra) stated as follows in the lead Judgment of the Court at page 566 of the Report:
‘It is evident from the above that if at the end of three years no re-appointment is offered and accepted, that will normally be the end of the appointment. But it would appear for all practical purposes in this case that the appellant related with the respondent as if the contract between them was still subsisting and had not lapsed. In those circumstances, can it be said that the respondent had not been led into believing that he had been re-appointed or that his appointment had not been confirmed.’
Unfortunately, there appears to be no clear cut provision in the conditions of appointment for the situation that had developed in this case. However, I repeat what I said before that, while the probationary appointment subsisted or soon after it came to an end notice could have been given. If that had been done, the appellant would have known his position, would perhaps have decided to pack out bag and baggage and probably take some positive steps to find alternative employment elsewhere and not be left high and dry. Allowing him to continue to work and earn his salary, gave the impression that he was in for another term of office as an officer who has satisfactorily completed his probationary period and has been re-appointed.
His Lordship continued thus:
‘Clearly, on the authorities no term will be implied in a contract unless there are grounds for doing so, and it is on that basis I approach the submission that the parties have manifested by their conduct that respondent’s appointment had been reviewed and renewed and he is now a confirmed officer. I think the principle of estoppel by conduct can rightly be founded upon in this case, having regard to all the facts I have highlighted above.’
In total support of the leading Judgment, Akpabio, JCA also stated as follows at page 570 of the Report:
‘The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm the respondent’s probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of ‘estoppel by conduct’ would operate to prevent the appellant from alleging and treating him as if he was still on probation. ‘Delay defeats equity.’
The Court of Appeal in this decision relied on the decision of the Supreme Court in Iga V Amakiri (1976) II SC 1 at 11-12 wherein it applied this doctrine of estoppel.
Again, in the more recent decision of the Supreme Court in Chukwuma V Ifeloye (2008) 18 NWLR (Pt. 118) 204 at 237-238, the principle of estoppel by conduct was further elucidated as follows:
‘Where a person or one by words or deed or conduct made to another a clear and unequivocal representation of facts either with knowledge of its falsehood or with the intention that it should be acted upon, or has conducted himself that another would, as a reasonable man with his full faculties, intended to be acted upon, and that other person in fact acted upon the representation whereby his position was thereby altered to his detriment an estoppel arises against that person who made it and he will not be allowed to say that the representation is not what he presented it to be. This is known as estoppel by conduct or estoppel in pais.
In other words, where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on the belief so as to alter his own position, the former is precluded from asserting against the latter a different state of things as existing at the same time. Iga V Amakiri (1976) 11 SC 1; Ude V Nwara (1993) 2 NWLR (Pt. 583) 509; Ude V Osuji (1990) 5 NWLR (Pt. 151) 488; Nsirim V Nsirim (2002) 3 NWLR (Pt. 755) 697
See also the decision of this Court in Raji V OAU (2014) LPELR-22088(CA) at 50-52 per Owoade, JCA.
In the instant case, just as it was in the case of OAU V Onabanjo (supra) the Appellant, in allowing the Respondent to work with full pay and even reviewed his salary upwards long after the nine months probationary period of employment had lapsed, is estopped from treating the Appellant as if he were not a confirmed officer. Therefore, the Respondent cannot, by any reverse reasoning as suggested by the Appellant, be deemed to have accepted Appellant’s letters of deferment or waived his rights by not rejecting the said letters. That is not the law. I thus resolve issues one and two in favour of the Appellant.
Issue three – Whether the trial Court was right to have awarded the Respondent his annual salary when there is evidence that he received his salary up to the date he resigned his appointment.
Under this issue, the Appellant submits that from the letter of offer of appointment (Exhibit CWA), the basic salary of the Respondent per annum was N590, 912.12 paid monthly in arrears totaling N1, 030, 606.70 per annum. By paragraph 5(m) of the Amended Statement of claim, the Respondent admitted that his annual salary was reviewed upwards to N1,638, 824 vide the Appellant’s letter of 30-01-14 (Exhibit CWD).
Therefore, the new salary of N1, 638, 824 took effect from 30-01-14 and was paid to the Respondent from January to March 2014. Thus, from the pleadings of the Respondent it is submitted that the money due and payable to him before his resignation letter dated 07-11-14 (Exhibit CWE) is for seven months, and not his annual salary for twelve months. It is contended that the Respondent’s pleadings and evidence show that the new salary increase took effect from January, 2014. He received his salary in April after which it was stopped and he resigned in November, 2014. Reliance is placed on Ekenna V Mkpakar (1997)5 SCNJ 70 where it was held that damages are not proved when the evidence offered in proof is contradictory and in conflict with the pleadings. The Court is therefore urged to resolve issue three in the negative.
In response, the Respondent submits that the claim of the Respondent in paragraph 3(e) of his claim at the lower Court is for an order directing the defendant to pay to the claimant his salaries and allowances based on the annual salary review of 30th January, 2014 in the sum of N1, 638, 824 withheld by the defendant from April 2014 till the date of filing the suit.
From the pleading of the Appellant in her statement of defence, she did not deny that the Respondent was not paid salaries and allowances from April 2014 to the date of his resignation. Instead, her contention was that the Claimant was on suspension vide Exhibit DW20. However, the trial Court found as a fact that the Respondent had resigned his appointment with effect from 21-11-14. The Respondent therefore contends that it is idle for the Appellant to contend that the trial Court awarded the Respondent his annual salary and allowances per annum. The Appellant is restricted to the findings and decision of the trial Court in the Appeal. The Court is therefore urged to also resolve this issue in favour of the Respondent.
Findings
As has been admitted in the Appellant?s Brief of argument, the Appellant by Exhibit CWD reviewed the Respondent?s initial salary upward on 30-01-14. Thereafter, the Appellant paid the Respondent his salary and allowances from January to March, 2014 based on this new salary review. Again by her own admission, thereafter, no further payments were made to the Respondent until he resigned on 21-11-14.
The fact that the Respondent resigned on that date is again not in issue, and this is buttressed by Exhibit CWE. Thus, the lower Court cannot be faulted when it found at page 200 of the Record inter alia that: ‘In sum, the claimant – is entitled only to his salaries and allowances based on the annual salary review of 30th January 2014 (Exhibit CWC), in the sum of N1, 638, 824 withheld by the defendant from April 2014 till November 21st when the claimant resigned from the defendant’s employment’
For the avoidance of doubt, this Court doth hold and order as follows:
3. That the defendant shall pay the claimant his salaries and allowances based on the annual salary review of 30th January, 2014 in the sum of M1, 638, 824 withheld unlawfully by the defendant from April 2014 till the time of resignation of the claimant from the services of the defendant on 21st November, 2014.
(Emphasis supplied)
It seems to me that the Appellant based his submissions in this regard on an obvious misconception of the Judgment of the lower Court that it awarded the Respondent his annual salaries and allowances from January, 2014 (the date of the upward review) to December, 2014. That however is not the case. At pages 199 to 200 of the Record, the lower Court was categorical when it said:
‘For this reason, the claimant is only entitled to his salaries and allowances for the period the defendant have (sic) retained him after the expiration of his probationary period, i.e. from 25th April, 2014, to time of his resignation on 21st November, 2014, vide Exhibit CWE.’
(Emphasis supplied)
I therefore find that the award made by the lower Court was completely in tandem with the credible evidence adduced before the lower Court which established the Respondent?s entitlement to his salaries and allowances for a period of seven months from April to November, 2014. I resolve issue three also in favour of the Respondent.
Issue four – Whether the trial Court was right in dismissing the Appellant’s counterclaim.
The Appellant contends that in paragraphs 5 and 6 of her counterclaim, she pleaded that the Respondent misappropriated the Company’s money and that he agreed to refund the sum of N2, 800, 632.
To buttress this, she tendered in evidence Exhibit C5 titled ?Debt Repayment Agreement To Taylek Drugs Company Ltd? dated 15-10-14 signed by the Respondent as debtor. Therein, it is contended that even though the Respondent contested the sum of N2, 235, 646 as the amount he owed the Appellant, he eventually agreed to repay the money and even set out the manner of repayment in installments. Therefore, it is submitted that Exhibit C5 is an admission against the Respondent’s interest. Thus, that by Sections 20 and 24 of the Evidence Act, the Respondent is estopped from denying that he owes the Appellant money. Reliance is placed on Ehidimhen V Musa (2000) 4 SCNJ 325; Adesola V Abidoye (1999) 12 SCNJ 61.
The Appellant contends that in further proof of the Respondent’s debt to the Appellant, three postdated Cheques marked Exhibit E5 were tendered. It is therefore submitted that even if the Appellant could not prove the sum of N2, 800, 232.50k claimed in his counterclaim, the Respondent admitted the lesser sum of N2, 235, 646.18 and had even started making payments. Reliance is placed on Artra Indust. Nig Ltd V NBCI (1998) 3 SCNJ 97; & Salawu V Yusuf (2007) 5 SCNJ 354 to submit that where a party is able to prove a lesser amount than what he is claiming, the Court will award him the lesser amount proved. The Respondent admitted issuing three post-dated cheques towards the repayment of the sum misappropriated. It is therefore argued that the Appellant was entitled to utilize the Respondent’s admission in proof of his counterclaim.
Finally, it is contended that the trial Court did not attach any weight to vital documents tendered in evidence in arriving at the conclusion it did, documents such as Exhibit DW18 wherein the Respondent agreed that he tampered with the Appellant’s money. It is argued that if the contents of this Exhibit are read together with Exhibit DW19, the lower Court would have found in favour of the Appellant even if only in respect of the amount admitted by the Respondent.
It is further submitted that while it is the primary function of the trial Court to make findings of fact, where the trial Court fails to carry out this function and it leads to a miscarriage of justice, the Court of Appeal will be justified in interfering with the decision.
Reliance is placed on Uka V Okorie (2002) 7 SCNJ 246; & Tsokwa Motors Nig Ltd V UBA (2008) 1 SCNJ 323 at 335 to 336. The Court is urged to resolve this issue in the negative, to allow the Appeal, set aside the Judgment of the trial Court, dismiss the Respondent’s claims and enter Judgment for the Appellant on his counterclaim.
In response, the Respondent submits that the Appellant failed to prove her counterclaim with credible evidence and same was rightly dismissed by the trial Court. It is contended that: (a) Exhibits DW16, DW17 and DW21 are photocopies are unsigned and undated documents; (b) Exhibit DW19 was not pleaded and so cannot at address stage be used to replace the document pleaded titled “Debt Repayment Agreement To Taylek Drugs Ltd” (which document the Appellant failed to tender at the trial); and (c) the Appellant did not file a reply to the Respondent’s defence to the counterclaim.
The Appellant contends that since the counterclaim is for a precise and certain sum of N2, 800, 632.50k and the Respondent denied it, it was incumbent on the Appellant to prove same. Reference is made to Exhibits DW16, DW17, DW18, DW19 and DW21 which were tendered in proof of the counterclaim. It is submitted that Exhibits DW16, DW17 and DW21 even though pleaded, are worthless documents having not been signed by any person. Accordingly they are irrelevant and command no evidential value in law, even though admitted in evidence without objection.
It is also contended that Exhibit DW19 titled ‘Summary’ is not pleaded. Instead, what is pleaded in a document titled ‘Debt Repayment Agreement to Taylek Drugs’ dated 15-11-14, also referred to by the Appellant’s Counsel in his final written address, but not tendered in evidence. In addition, the cheques allegedly referred to in this document were not tendered. It is therefore submitted that it is idle and offensive in law for the Counsel to place reliance on documents not before the trial Court in this Appeal.
The Respondent submits that in the absence of Exhibits DW16, DW17, DW19 and DW21, only Exhibit DW18 which the Appellant contends is an admission by the Respondent that he tampered with the Appellant’s funds, is left. However, Exhibit DW18 was not addressed to the Appellant. It also did not state the sum of money allegedly misused by the Respondent.
Furthermore, that no other sum of money was proved vide credible evidence as the Appellant’s money in possession of the Respondent.
It is further submitted that the evidence of DW1 was at variance with the Appellant’s pleadings, for whereas the Appellant pleaded and sought to recover the sum of N2, 800, 632.50k as money allegedly misappropriated in the counterclaim, the evidence of DW1 in paragraph 16 of his statement on oath is at variance with the pleadings, having testified that the total amount misappropriated by the claimant came to N2, 665, 271.31k. It is therefore the submission of the Respondent that any evidence at variance with pleaded facts do not support the pleadings and goes to no issue.
It is further submitted that since the Appellant contends that the basis for the counterclaim is fraud and/or misappropriation by the Respondent, it borders on the commission of a crime. It is therefore directly in issue in the counterclaim. In such a case where fraud is pleaded, the particulars of the fraud must be specifically set out and proved. The Appellant contends that the Appellant did not meet this legal requirement.
It is also submitted that by Section 135(1) of the Evidence Act, 2011, where an allegation of crime is directly in issue in civil proceedings, the standard of proof is proof beyond reasonable doubt. The Respondent contends that the Appellant did not meet this legal requirement in respect of her counterclaim based on fraud and/or misappropriation. This is in light of the speculative nature of the claim, the material contradictions and/or variations in the evidence of the counter-claimant vis–vis the pleadings of the Appellant, to wit: that the Appellant who alleged misappropriation of her money, did not plead and prove with exactitude the amount allegedly misappropriated.
Finally, it is submitted that the failure of the Appellant to file a reply to the Respondent’s defence to the counter-claim, particularly as it relates to the sum allegedly owed the Appellant by the Respondent (paragraphs 14(a)-(h) thereof) means that same is deemed admitted and requires no further proof from the Respondent. Section 75 of the Evidence Act; & Spasco V Alraine (1995) 9 SCNJ 288 at 301 are relied on. The Respondent therefore submits that the trial Court was right when it dismissed the counterclaim in its entirety. Thus, the Court is urged to resolve issue four in favour of the Respondent, to dismiss the Appeal and affirm the decision of the trial Court.
Findings
The lower Court dismissed the counterclaim based on two main grounds, to wit: (i) no cogent evidence was adduced as to the actual amount allegedly misappropriated by the defendant to the counterclaim; and (ii) Exhibits DW16 and DW17, being documents upon which the Appellant relied on to ground the counterclaim and prove the alleged fraud, lacked evidential value and weight being unsigned and undated documents.
Indeed it is not contestable that whereas the Appellant counterclaimed against the Respondent alleging fraud and/or misappropriation in the sum of N2, 800, 632.50k, her sole witness DW1 in his statement on oath testified that the Respondent owed the Appellant the sum of N2,665, 271.31k. This evidence is clearly at variance with her pleadings; no effort was made to clarify and/or explain the inconsistency. That certainly cannot be done by Counsel in his final address before the lower Court or even here on Appeal.
Secondly, the law is trite that a Court of law cannot countenance or act upon legally inadmissible evidence, even where it has been admitted in evidence without objection or by the consent of both parties. Exhibits DW16, DW17 and DW21 are evidently and unarguably unsigned and undated documents. Thus, the lower Court was on solid ground when it declined to place any weight or act on them, and instead expunged Exhibits DW16 and DW17 from the Record. See Section 94(1) Evidence Act, 2011; Omega Bank Ltd V OBC Ltd (2005) 1 SCNJ 150; Global Soap & Detergent Ind. Ltd V NAFDAC (2011) All FWLR (Pt. 599) 1025; & Ikem V Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476. I see no reason to disturb this finding.
In addition to this, Exhibit DW19 also tendered in proof of the counterclaim titled ‘Summary’ by which the Respondent was alleged to have admitted a debt owed to the Appellant, was neither pleaded nor was it addressed to anyone on the face of it. It is settled law that any evidence on facts not pleaded, goes to no issue. See Momoh V Umoru (2011) All FWLR (Pt. 588) 797; Agboola V UBA Plc (2011) All FWLR (Pt. 574) 74; & Buhari V Obasanjo 2005 All FWLR (Pt. 273) 1. In addition to which, the letter said to issue from the Respondent but which was never pleaded to give the Respondent an opportunity to react to same, discloses no addressee. Thus, no nexus was established between the letter and the Appellant. Such vital information cannot be the subject of conjecture or speculation by the Court as it is incumbent on the Appellant to prove the facts he relies on to establish his counterclaim.
Thus, virtually the only document remaining upon which the Appellant could possibly rely in proof of her counterclaim was Exhibit DW18. However, this document written under the hand of the Respondent does not also state the amount of money said to have been tampered with by the Respondent. Therefore, in the absence of any other credible and admissible evidence as to the exact sum of money said to have been fraudulently misappropriated by the Respondent, the document does not assist the Appellant’s counterclaim in any way.
It is the law that a counterclaim stands on the same pedestal as a claim. It is a separate and distinct action, and a counter-claimant like all other plaintiffs, must prove the claim against the person being counterclaimed against before he can obtain judgment on the counterclaim. This is a well known principle of law. See Maobison Inter-Link Associated Ltd V UC Nig Ltd (2013) 20335(SC) 13; Ogiren V Amzat Olufunmilayo (2015) LPELR-24295(CA) 25; & Dabup V Kolo (1993) 9 NWLR (Pt. 317) 254. Therefore, a counter-claimant has the onus to adduce credible evidence to prove the assertions in his counterclaim. Where he fails to so prove, the burden of proof does not shift to the Respondent and he fails to prove his claim on a balance of probability as required by law. See Section 133(1) of the Evidence Act, 2011.
Additionally the assertion of the Appellant in his counterclaim is that the Respondent fraudulently misappropriated the funds of the Appellant. That being the case, an allegation of a criminal offence was in issue and indeed the crux of the counterclaim. Therefore, since the allegation has to do wit fraud, it must be pleaded with particularity. So, the Appellant was obligated to have pleaded and expressly set out the particulars of the fraud alleged. SeeUBA V Osok (2016) LPELR-40110(CA) 8-9; Eya V Olopade (2011) All FWLR (Pt. 584) 28; & Olaleye V Trustees of ECWA (2011) All FWLR (Pt. 565) 297. This was not done.
Finally, the law is trite that if the commission of a crime by a party to a proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act. Thus, fraud being an allegation of a criminal nature, the standard of proof is proof beyond reasonable doubt. See Jua V State (2010) LPELR-1637(SC) 20, PARAS b-e; UBA V Osok (2016) LPELR-40110(CA) 8-9; Neka V Kunini (2015) LPELR-26031(CA) 52-54; Haruna V Modibbo (2004) 16 NWLR (Pt. 900) 487; & Adewale V Olaifa (2012) 17 NWLR (Pt. 1330) 478. However, the evidence adduced by the Appellant and offered in proof of this serious allegation was both meagre and riddled was inconsistencies. It was clearly nowhere close to attaining the requirement/standard of proof beyond reasonable doubt. Thus, on all counts, the lower Court rightly dismissed the counterclaim on the ground that same was not proved. I again resolve issue four in favour of the Respondent.
In the result, having resolved all four issues in favour of the Respondent, I find no merit in the Appeal. It is accordingly dismissed.
Accordingly, I affirm the Judgment of the National Industrial Court Makurdi Division, Coram Haastrup, J., in suit no. NICN/MKD/24/2015 between Peter Onankpa V Taylek Drugs Company Ltd delivered on November, 9th 2016.
I award the costs of the Appeal which I assess at N100,000.00 (One Hundred Thousand Naira) only, to the Respondent against the Appellant.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, dismissing this appeal. I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I also dismiss the appeal and abide by the orders made in the lead Judgment.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the judgment which has just been delivered by my learned brother, Sankey, JCA.
Where there is a dispute between parties to a written agreement touching on the agreement, the only authoritative and legal source of information for the purpose of resolving same is the written document executed by the parties. See BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209 and JFS mv. Ltd V Brawal Line Ltd (2011) All FWLR (Pt. 587) 647. A perusal of the terms of the written agreement between the parties in this appeal (Exhibit CWA) shows that there is no provision for deferment of the confirmation of the appointment of the respondent. Therefore the purported deferments of the confirmation of the appointment of the respondent by the appellant was not within the contemplation of the contract between the parties.
By failing to terminate the employment of the respondent within the period stipulated by the written agreement and increasing his salary long after the expiration of the period of probation, the appellant is deemed to have confirmed the appointment of the respondent.
The doctrine of estoppel by conduct does not allow the appellant to contend otherwise. See Section 169 of the Evidence Act, 2011 and the cases of Iga V Amakiri (1976) 11 SC 1 and OAU V Onabanjo (1991) 5 NWLR (Pt. 193) 549.
As regards the counter – claim, the non – evidence and the contradictory and skimpy evidence proffered by appellant in proof thereof failed woefully to meet the standard of proof beyond reasonable doubt required by Section 135(1) of the Evidence Act regarding allegation of a criminal nature as in this instance, viz; misappropriation of the appellant?s money by the respondent. The trial Court rightly dismissed the counter -claim.
I therefore agree with the lead judgment of my learned brother that the appeal has no merit. I accordingly dismiss the same and affirm the judgment of the National Industrial Court.
Appearances:
R.C. Ndefo Esq. with him, E.G. Yaji, Esq.For Appellant(s)
A.A. Chukwuma, Esq.For Respondent(s)
