THERESA UCHE PADONU -VS- KINGS BROADCASTING LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBO

DATE: 19^TH JUNE, 2018 SUIT NO: NICN/ABJ/73/2017

BETWEEN:

THERESA UCHE PADONU CLAIMANT

AND:

KINGS BROADCASTING LIMITED DEFENDANT

REPRESENTATION

M. BAKARE for the Claimant

SILAS J. ONU for the defendant

JUDGMENT

The Claimant filed this Complaint on 2^nd March, 2017 with the accompanying frontloaded documents, claiming against the Defendant as follows:

(a) The sum of 859,746.65 (Eight Hundred and Fifty-Nine Thousand, Seven Hundred and Forty-Sixty Naira and Sixty-Five Kobo being unpaid earned salaries for 5 months from May 2016 — September, 2016 at the monthly net pay of 171,979.33 which the Defendant refuses and/or neglects to pay the claimant despite repeated demand and entreaties to pay.

(b) The sum of N374,803.77 (Three Hundred and Seventy-Four Thousand Eight Hundred and Three Naira Seventy-Seven Kobo) being unremitted deductions at the monthly sum of 1 1,351.69 for 33 months from January 2014 — September, 2016 which the Defendant deducted from the monthly salaries of the Claimant but failed, refused and/or neglected to remit to Arm Pensions Limited, the Claimant’s Pension Administrators-despite the Claimant’s repeated demands and the Defendant’s promise to remit same.

(c) Interest at 28% per annum on the said sums from September 2016 till judgment is delivered and post judgment interest 10% till full and final liquidation of the outstanding debt.

(d) Cost of this action in the sum of N5 00,000.00.

The case of the Claimant is that she worked as a media practitioner for the Defendant Company from May 2016 to September 2016 when she resigned and despite her repeated demands the Defendants failed, refused or neglected to pay her overdue salaries.

At the trial, the Claimant testified on her own behalf as CW; adopting her written statement on oath which was marked as C1 and proceeded to tender 5 other documents which were marked Exhibits C2-C6. (C3-C6) were admitted under protest, CW was duly cross-examined by the opposing Counsel.

Claimants Exhibits.

S/No	Description/Title of Document	Dated	Exhibit No	Tendered	Remarks
1.	Letter of Employment	17/9/13	C2	10th July 2017
2.	Letter of Resignation	24/5/16	C3	“ “	Admitted under protest
3.	Employee Handbook		C4	“ “	“ “
4.	Pay slips	April 2016	C5	“ “	“ “
5.	Claimant’s Solicitors Letter	7/2/17	C6	“ “	“ “

While Raheem Olabode, a Director handling Communication Strategy and Corporate Planning for the Defendant, testified as DW. Adopted his written statement on oath which was marked D1 and was cross examined by Claimant’s Counsel. The Defendants raised a counter claim in their statement of defence which they subsequently abandoned.

After the trial parties filed their respective Written Addresses. The Defendant’s Final Written Address is dated and filed on 31st January 2017, while the Claimant’s is dated and filed on 28th February 2017. The Defendant’s reply on points of law was filed on 8th March 2017.

The DEFENDANT’S FINAL WRITTEN ADDRESS was filed on 11^th January, 2018.

ISSUE

Whether from the totality of the Claimants’ evidence, documents before the court and extant laws, the Claimant has shown cause to be entitled to the reliefs sought?

Counsel to the Defendants contended that the Claimant is not entitled to the reliefs sought in this case as contained in the Complaint and statement of Facts because, if they are granted, it will defeat the age long position of our law that facts must be proven through positive verifiable evidence and the Claimant has failed to establish the fact that she indeed resigned as an employee of the Defendant.

He submitted that the law is clear as provided for in Section 84 of the Evidence Act,
2011 on how documents produced by a computer are to pass the admissibility test.

Defence Counsel argued that in the instant case, the Claimant failed to supply the required certificate in the manner outlined by subsection 4 of Section 84 of the Evidence Act, 2011 and that the effect of such a failure is that the affected documents are not before the Court and cannot be relied on for any purpose whatsoever.

The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on15th February, 2018.

ISSUES
Whether from the pleadings and totality of evidence, the Claimant has proved her case and is entitled to the reliefs being sought herein.

Whether the Defendant has failed to establish a successful defence to the action thereby entitling the Claimant to the judgment of this Honourable Court in her favour.

Whether the Claimant’s c/aims having been admitted by the Defendant need further proof by the Claimant to entitle her to the claims herein.

ON ISSUES 1 AND 2

Whether from the pleadings and totality of evidence, the Claimant has proved her case and is entitled to the reliefs being sought herein.

Whether the Defendant has failed to establish a successful defence to the action thereby entitling the Claimant to the judgment of this Honourable Court in her favour.

It is Claimant’s Counsel’s submission that if the Honourable Court considers in totality and assesses the evidence of witnesses of both parties testified in this matter together, the Court will have no difficulties in finding for the Claimant on the imaginary scale successfully. PRAMO NIGERIA LTD vs. DAODU (1993) 3 NWLR (PT.281) 9 PAGE 372 RATIO 3. He argued that the said Exhibits are clearly in Support of the Claimant’s case and the Court can only rely on and use evidence that is relevant to the facts in issue. S.I of the EVIDENCE ACT, 2011; ADEBAYO-vs-ADUSE, 1 (2004) 4 NWLR (PT.862) PAGE 44; MOSHEIHE GEN.MERCHANTS LTD -vs NIGERIA STEEL PRODUCTS (1987) 1 NWLR (PT.100) PAGE 122; AKINYOLA-vs-OLUWA (1962) ALL NLR, PAGE 224.

Counsel submitted that for a party to prove a case, it will depend on whether the legal evidence will, if put on the proverbial scale, tilt one way on the other in favour of that party as was held in NWAGA -vs REGISTERED TRUSTEES RECREATION CLUB (2004) FWLR (PT.190) PAGE 1360 RATIO 3.

Counsel contended that with the failure of the Defendant to impeach the credibility of the Claimant’s evidence on strength of legal authorities, it is the relevancy of the Claimant’s evidence to the facts in issue that most matters to the Court rather than feeble technicalities and misconception in determining the justice of the case. UJOTUONU-vs-ANAMRA STATE GOVERNMENT (2010) 15 NWLR (PT.1217) PAGE 421.

He submitted that Counsel address no matter how couched cannot amount or substitute evidence. NIGERIA ARAB BANK LTD -vs FENU KANEL LTD (1995) 4 NWLR (PT. 387) PAGE 100 AT 106, RATIO 10.

Furthermore, that a submission of Counsel no matter how brilliant and persuasive cannot metamorphose into or substitute evidence in a matter. CHUKWUEJEKWU-vs-OLARERE (1992) 15 NWLR (PT.221) PAGE 86 AT 93; and 0 NAMADE-vs-ACB LTD (1997) 1 NWLR (PT.480) PAGE 123 PARAS. C-D.

ON ISSUE 3

Whether the Claimant’s claims having been admitted by the Defendant need further proof by the Claimant to entitle her to the claims herein.

Counsel submitted that the Defendant in paragraphs 4.6 and 4.7 of its Final Address has admitted the Claimant’s claims herein and that what is admitted need not be proved as the Supreme Court held in VEEPEE IND. LTD-vs. COCOA INDUSTRIES LTD (2008) APRIL-JUNE NSCQLR VOL.34 PAGE 904 AT PAGE 910 RATIO 8; NIGERIA AIR FORCE-vs. EX.SON LEADER A. 0 BIOSA (2003) 3 SCM PAGE 113 AT PAGE 117 RATIO 5.
The Claimant’s Counsel urged the Honourable Court to so hold and grant the Claimant’s reliefs already admitted by the Defendant in the said paragraphs 4.6 and 4.7 of the Defendant’s Written Address in the interest of substantial justice.

On the 17^th April 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Claimants case.

Before delving in to the merits of this case it is necessary to remark on a contention of the Defendant who made heavy weather of the subject of the Claimant’s resignation, stating that there was no evidence before the court that the claimant had resigned and inferring a duty on this court or the Claimant to prove her resignation. Now firstly in as the courts cannot impose an employee on an unwilling employer in the same way the courts cannot compel an employee to remain with an employer. “It is settled law that an employee cannot compel an employer to retain him no matter how desirable that may be on humanitarian or other grounds. In as much the same way an employer cannot compel an employee to remain in his service no matter how indispensable his service may be to his employer” ODIN KERIMERE Vs IMPERIAL BAKILON (NIG) Ltd.

Furthermore, it is the basic law, with regards to resignation by Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. The implication of this position of the law with regard to an email would only require proof that an email was delivered. I hold.
Now back to the merits of this case
The Claimants reliefs are as follows; –

(a) The sum of 859,746.65 (Eight Hundred and Fifty-Nine Thousand, Seven Hundred and Forty-Sixty Naira and Sixty-Five Kobo being unpaid earned salaries for 5 months from May 2016 — September, 2016 at the monthly net pay of 171,979.33 which the Defendant refuses and/or neglects to pay the Claimant despite repeated demand and entreaties to pay.

(c) Interest at 28% per annum on the said sums from September 2016 till judgment is delivered and post judgment interest 10% till full and final liquidation of the outstanding debt.

(d) Cost of this action in the sum of N5 00,000.00.

In support of this Claim the Claimant tendered 5 exhibits; C2 her Letter of Employment, C3 her Letter of Resignation, C4 the Employee Handbook, C5 Pay slips and C6 the Claimant’s Solicitors Letter of demand. The Defendants objected to the tendering of exhibits C3, C5 and C6 during trial and in their final address argued that the documents being computer generated documents required certification as per section 84 of the Evidence Act 2011 and that as this evidentiary requirement had not been met the court cannot admit these documents as the said documents are not properly before the court and the court cannot rely on them. It is pertinent at this stage to note that in making this objection the Defendants are not taking issue with the authenticity, content or source(s) of the documents but the Defendant’ grouse by this objection is with the mode or means of tendering these documents.

The Claimant on her part argued that the Defendants have failed to impeach her credibility and that relevancy of evidence matters most rather than feeble technicalities and misconceptions.

I am aware of the pronouncement of the Supreme Court in OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 that

“Nowadays, courts denounce judgments by mere technicality. Courts are set up to do substantial justice and in the pursuit of the substantial justice, all forms of technicalities which will act as detriments to the determination of the substantial issues between litigants must be shunned. Thus, although rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity, in appropriate circumstances, for their claims to be adequately investigated and properly determined on merit.”

In fact, the Apex Court went on in the case of NWAKONOBI V. UDEORAH (2013) 7 NWLR (PT. 1354) 499 @ 504 S.C. to further elucidate that it is “Evidence adduced that is relevant to a matter in controversy that has neither been challenged nor debunked must be accepted by the court. OMOREGBE V. LAWANI (1980) 3-4 SC 108.
What this means is that although relevance is the guiding principle in admission of evidence, where a piece of evidence is challenged the court is obligated to make a determination in respect of the objection in accordance with the law.

Now Section 84 of the Evidence act provides that; –

In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

Sub section (2) provides; –
The conditions referred to in subsection (1) of this section are-

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

While subsection (4) of this section states that; –
In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-

(a) identifying the document containing the statement and describing the manner in which it was produced

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.

(1) dealing with any of the matters to which the conditions mentioned in subsection

(2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it

Now bearing in mind that section 86 (4) of the Evidence Act 2011 provides one of the rules for determining primary evidence (also known as the “original” evidence). It states that: “where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photograph, computer or other electronic or mechanic process, each shall be primary evidence of the contents of the rest: but where they are all copies of a common original, why shall not be the primary evidence of the contents of the original.” And It is noteworthy that computer and other electronic processes have now been recognized as processes which documents can be made uniformly” as stated by the Learned Author Alaba Omolaye Ajileye in his book A Guide to Admissibility of Electronic Evidence LawLords Publication © 2016 Edition Abuja, Nigeria, See page 160

I find that Exhibits C3 is the series of emails ranging from the 24^th September to 30^th October from the Claimant to the Defendants notifying them of her intended resignation to take effect from the 24^th September, Exhibit C5 is the Claimant pay slip for the month of April 2016 and C6 is the claimant solicitor’s letter of demand. These documents I find are all Computer Printouts, the learned author mentioned above, in considering computer generated evidence relied on the work of Gahgtan, A.M. (1999) Electronic Evidence. P. 152 (Scarborough: Carswell). Quoted in Makulilo, A.B. (2007). Admissibility of computer evidence in Tanzania. Retrieved from: http://repository.out.ac.tz/321/1/Admissibility of Computer Evidence in Tanzania.pdf.

“When information is first entered into computer system, it is commonly stored in the system’s memory (for instance, ready/write or RAM memory on a PC, which generally has the quickest time). It is then usually quickly copied to a semi-permanent storage device such as a hard disk so that the system’s core memory can be freed up of all other tasks. At some point it may also be copied or moved to a magnetic tape or optical disk storage media for a longer-term storage. The information, as stored in any of the foregoing digital storage mediums, is not perceived by humans and must be printed out I hard form or displayed on a computer monitor……….”

This means that the material stored in a computer into humanly readable but the print out is the document to be read by humans hence it is the original in the stored information.

The wording of section 84 of the Evidence Act, 2011 clearly assumes that “the statement contained in a document produced by a computer” referred to therein is one that is human readable. It may, therefore, be further argued, that for all practical purposes, if such a document is produced directly from the computer, it must be intended by the Legislature to be treated as primary evidence.

Now, section 84 of the Evidence Act, 2011 prescribes conditions that must be fulfilled to render electronically generated evidence admissible. Then, a distinction must be made between cases where evidence is inadmissible in any event in law and cases where evidence is admissible under certain conditions. In respect of cases where evidence is admissible on fulfilment of certain conditions, if the evidence was admitted without objection or by consent of parties the trial court will not entertain any complaints on the admissibility of such evidence. Which means that as the objection was made the court must rule on the merit of the objection. The position would have been otherwise if the defendants had not raised the objection See EWEKA & ORS V. RAWSON(2000) 10 NWLR (PT. 722) 723 (CA) ANYAEBOSI V R. T. BRISCOE (1987) 3NWLR (PT/ 50) 108 and the unreported case of SUIT NO. NICN/ABJ/128/2015 NATIONAL PENSION COMMISSION VS. FAMAKS INTERNATIONAL SCHOOL delivered on the 4^th June 2018

Section 84 requires that the person who seeks to tender a computer generated document, to furnish the court with a certificate of compliance satisfying the conditions stated in Sections 84 (2) and (4) of the Evidence Act. In alternative to the providing a certificate of compliance by the case of BRILA ENERGY LTD Vs, FRN 2018 LPELR 43926 CA Sankey JCA held that “where such certificate of trustworthiness of the computer used in printing the documents is not produced. It has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality and that such a person need not be a computer expert” this is because as his Lordship had stated earlier in the judgment, that “from case law Section 84(4) permits even non experts, especially persons who, though not possessing the required professional qualification may have acquired some practical knowledge and being in the position described in the subsection to bring him within the definition of an expert”. This means that the Claimant can presented oral evidence of the computer fitness.

In the instant case I find that the Claimant has neither presented the court with the required certificate of compliance neither has she given evidence orally by herself or some other person as to the functionality of the computer that produced Exhibits C3, C5 and C6. In the circumstances I find that this certification is vital to the proper admission of these documents, previously admitted under protest. I find that the Defendants objection has merit and it is hereby upheld. Exhibit C3. C5 and C6 are hereby discountenanced for the purpose of this suit.

By implication this translates to the fact that the Claimant has no proof to justify her claims before the court. It is not in doubt that the Claimant has made a case for these reliefs but she has failed to fulfill the evidentiary and legal requirements to substantiate the claim to enable the court make a determination of the matter on the merit. I find in these circumstances the proper order to be made in this case is an order of the Court striking out this suit without prejudice.