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National Industrial Court

Aliyu Dan Suliamam -VS- Alh Yaro Gobirawa

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THURSDAY THE 28TH DAY OF MARCH, 2019

SUIT NO.NICN/SK/05/2018

BETWEEN

 

ALIYU DAN SULEIMAN           ……………………………………….…. CLAIMANT

 

AND

ALH. YARO GOBIRAWA                                   …………………………. DEFENDANT

(Trading under the name and style of

Alh. Yaro Gobirawa &sons)

 

REPRESENTATION

  1. Shettima Esq.  for the claimants.

N.S.Naige Esq. for the defendants.

 

 

JUDGMENT

  1. INTRODUCTION.

This judgment is centered on the alleged non-payment of salaries of the claimant by the defendant over a period of 25 months; from March 2016 to April 2018. The claimant took out a complaint on the 23rd of March, 2018, with all the other accompanying documents. The defendant entered a conditional appearance as well as filed his defense together with the relevant documents on the 5th of April, 2018. Both are as required by the Rules of this Court.

The claimant prays for the following;

(a) The sum of One Million, One Hundred and Eighty Seven Thousand, Five Hundred Naira (N 1,187,500.00) being the unpaid salary of the Claimant since March 2016.

(b)  Cost of this action.

(c)  Other orders as this Honourable Court may deem m to make in circumstances.

  1. FACTS OF THE CASE.

The claimant was employed by the defendant on the 24th of March, 2009. Due to his hard work and diligence, he was promoted two years after. In April 2016, after a trip to Lagos in March, on behalf of the defendant, the claimant wrote an application for a casual leave. He was denied the request (exhibit ADSA) and was accused of absconding from his duty as a result of which his salary was withheld starting from March, 2016; thus this suit by the claimant.

  1. CASE OF THE CLAIMANT

The claimant testified as CW1 in line with his statement of facts as follows:

That the claimant, Aliyu Dan Suleiman is an employee of the defendant and is equally known as Dansule Suleiman to the later. He was employed via a letter dated 24th March, 2009 as stores assistant on a salary of N15,000.00  per month and on the 21st of January 2011, he was promoted to store control officer with a salary of N25,000 per month. That as at 2016, an addition of N22,500 communication allowance was made to his salary, hence making it a total of N47,500 per month. That his duties as the store control officer included purchase and procurement of all telephones marketed/distributed/sold by the defendant from different companies/purchase points. Before he undertakes such purchase journey, he makes an ‘End of Day Stock Report’, this is done to know the value of goods in stock. In March 2016, in pursuance of the above mentioned duty, he, together with one Babangida and Farouk, travelled to Lagos on the instruction of the defendant. That before the said journey, he took the end of day stock report on the 24th March, 2016 and it was N13,394,150.00. After he came back with the goods he bought from Lagos, the stock rose to N28,032,950.00. That despite carrying out the above assignment for the defendant, he was not paid his salary and communication allowance (with code number A-22.5+400) despite being numbers 22 and 4 respectively on the salary report sheet. That in April 2016 he wrote a letter to the defendant for a casual leave. The defendant replied and accused him of absconding from his duty. That his lawyer wrote a letter to the defendant denying the allegation and demanding for the salary of March and April, 2016.That notwithstanding all that transpired, the claimant did not stop going to work. As such, makes a demand for the payment of salary covering a period of 25 months, from March 2016 to April 2018 amounting to N 1,187,500.00

Under cross examination, the claimant said that there is no Ali Dan Suleiman in his witness statement of 3/12/2018.The letter of appointment is addressed to Ali Dan Suleiman. His letter of promotion bears the name Dan Sule Suleiman.  As a staff, he will be paid salary if he has a reason why he did not come to work. None of the exhibits tendered states his salary to be N47, 500.00 but his lawyers letter states so. His promotion letter states his salary to be N25, 000.00. He had earlier filed a suit at the District Court of Sokoto claiming the same amount of money. Musa is the name of the staff who feeds the end of stock into the computer. All the receipts/invoices he tendered have his name and signature in the customer’s column. He has been reporting to work since March 2016 till last Saturday. Besides the duty he carried out for the defendant on 24th and 25th March, he was not assigned with any other duty and he did not perform any. He was in Lagos with Babangida on 23rd, 24th and on 25th he was in Sokoto.

 

  1. CASE OF THE DEFENDANT

The defendant in response filed a statement of defence and two witness statement on oath in line with the defence as follows:

DW1,Yusuf Bello,  stated that the defendant only had a former staff by the name of Ali Dan Suleiman (also known as Dansule Suleiman), and the claimant in the present suit is unknown to him. Moreover, Ali Dan Suleiman was employed by the defendant via a letter dated 24th March, 2009 as a store assistant, on a monthly salary of N15,000. That Ali Dan Suleiman was promoted and not Aliyu Dan Suleiman. That the salary of the claimant never rose to N47,500 including communication allowance. However, the salary of Ali Dan Suleiman was increased to N25,000 after the promotion. That the duties of a store control officer were carried out by Ali Dan Suleiman and not the claimant. So also, it is only the staff of the defendant who make such purchase journey that carry out such ‘End of Day Stock Report’ and not the defendant. That the ‘End of Day Stock Reports’ of 24/03/2016 and 25/03/2016 were wrongly procured by the claimant. These documents are computer generated, classified and only authorized staff, of which the claimant is not one of them, are authorized to access same. That it was the defendant’s employee Ali Dan Suleiman (also known as Dansule Suleiman), who absconded from his duty for the month of March, 2016 and was later requested to hand over the goods in his possession. In line with the handing over bid between Ali Dan Suleiman the defendant, the former and one Babangida (also known as Yusuf Ali, representing the defendant) travelled to Lagos to hand over the purchased goods to the defendant through Babangida (also known as Yusuf Ali) but which were not delivered by the said Ali Dan Suleiman. That in the process of verification at Lagos, it was discovered that Finet Systems revealed that they had supplied Ali Dan Suleiman with the defendants goods but which was not delivered to the defendant. That by virtue of the letter of appointment issued by the defendant, an employee has to work for a full working time for every day of the week up to a month. Thus, Ali Dan Suleiman was not entitled to salary as he absconded in March. Furthermore, the mere appearance of his name in the salary report does not entitle him to payment. At the end of each month, such report is prepared and it is left for the defendant to sieve out those that are entitled to payment and vice versa based on the record of each staff. That the claimant is not entitled to any communication allowance and the purported code- A-22.5+400 is unknown to the defendant and does not connote communications allowance. That the appointment of Ali Dan Suleiman was terminated because he absconded from his duty post and failed to abide by the terms of his appointment. In addition, when his letter of termination was issued to him, he refused to collect same and left the premises of the business outfit. That the instant claimant filed Suit No. SK/CV.20/2017 before a District Court in Sokoto praying for the same reliefs before this Court. The suit was subsequently dismissed on the 4th of April, 2017.That due to the decision reached by that court of competent jurisdiction in the above suit, the instant suit is Res Judicata.

Under cross examination DW1 testified that he has been working for the defendant for 10 years now. We have been together with Ali Dan Suleman also known as Dan Sule Suleiman who is the claimant in this court (witness point to the claimant in Court).He worked as a control officer. The claimant, as his duty, makes purchases for the company. Exhibits ADS15 and ADS16 are some of the company’s end of day report, they are prepared by Mustapha before they are entered into the computer by the computer man. We went to Lagos with Ali Dan Suleman. Exhibits ADS 9, 10, 11, 12, 13, and 14 are receipts of items purchased by Dan Suleman and they were delivered to the company. It is the records on those receipts that are usually entered in the end of day stock report. I am aware of the termination letter with effect from 30/5/2016 issued to the claimant for absconding from work. I was not the one who gave him the letter.

The witness statement on oath of DW2, Alh. Yaro Gobirawa, is materially the same with that of the DW1 and as such, it will not be reproduced herein.

Under cross examination, DW2 said  he is the owner of Alhaji Gobirawa sons, I know one Aliyu Dan Suleiman, I know that he is the one suing me before this  Court. He worked with me for long but I cannot say for how long. I employed him as a store assistant. Exhibits ADS3, 4, 5, 7, 8 and ADS9 to 14 are the invoices of purchases the claimant made but we do not agree with Exhibits ADS6 and 9 because they were not supplied to the company. I did not give the claimant the termination letter personally but I sent my secretary.

 

  1. FINAL SUBMISSION OF DEFENDANT’S COUNSEL.

 

In the final written address of the defendant, his counsel raised some preliminary points of law before delving into the issues for determination. The objections raised pertain to the admissibility or otherwise of the documents tendered by the claimant’s counsel during trial, the competence of the claimants reply and the witness statement attached dated 30/11/2018 and filed on 3/12/2018 and the Jurisdiction of this Court to entertain this suit in view of an earlier suit by the claimant against the defendant at the District Court of Sokoto State. The claimant also raised an objection to the admissibility of one document tendered by the defendant. These arguments will be considered along with the ruling on these exhibits.

Arguing on the merit of the case as to whether the claimant on the preponderance of evidence is entitled to the reliefs sought. The counsel argued that the claimant was only entitled to N25,000 and not the purported N47,500. This is because the claimant only tendered Exhibit ADS 2 which shows a salary of N25,000 and the claimant has stated under cross examination that there is no other evidence that shows the increment of salary claimed by him. As such, the only relevant document (assuming it is admissible) is Exhibit ADS2. See Eghareva v. Osagie (2009) 18 NWLR (Pt. 1173) 299

It was further argued that the claimant is not entitled to the monetary claims made by him as he has not proffered any evidence to show that he has been going to work for the period of March 2016 to April 2018. The burden of proving entitlement is on the claimant and it has not been discharged. There is no evidence from the other staff suggesting that the claimant has been coming to work and working on full time basis to be entitled to salary.

Also, it is argued that the employment of the defendant was terminated by Exhibit AYG 1 as at 30th May 2016 and the claimant has not made any effort to challenge the employment, as such he has accepted it.

 

 

  1. FINAL SUBMISSION OF CLAIMANT’S COUNSEL.

The Counsel to the claimant in his final written address responded to some preliminary objections and raised his own, these arguments shall be considered while ruling on those objections.

Counsel submitted that the main issue for determination is whether the claimant has proved his case on the balance of probability as to warrant the Court to grant all the reliefs sought by the claimant.

That that the discrepancy in the name of the claimant is a mere misnomer.That the claimant has stated clearly that he had worked for the defendant and was not paid for the period of March 2016 to April 2018. The defendant barely responded by raising technical issues, which is prohibited; see Order 32 Rule 2 of the Rules of this Court.

That the claimant has stated some of the duties he performed for the defendant evidenced by the invoices for the goods procured and the ‘End of the Day Stock Reports’ for the 24th and 25th March.

Moreover, on the issue of absconding from duty leading to his termination raised by the defence, the defendant did not state the period in the statement on oath nor does the termination letter.

In addition, the defendant in paragraph 6 of his statement on oath raised an allegation of fraud against the claimant in respect of goods procured from FINET Systems. However, the defendant was not specific in the sense that he did not state the particular type of phone that was not delivered, the quantity, the date and also there is no documentary evidence to prove same. Also, the allegation of fraud was not stated in the termination letter. Even in civil cases, allegations of fraud must be proved beyond reasonable doubt. Alade v. Ogundele (2014) ALL FWLR (Pt. 743) pg. 2027 at 2048, para G-H.

  1. DEFENDANTS REPLY ON POINTS OF LAW

The defendant counsel argued the following in reply:

Firstly, on the contention of the claimant counsel that the discrepancy in the name of the claimant is a mere misnomer, counsel argued that the decision of this Court denying the change of name stands until it is set aside on appeal.

Secondly, on the assertion of the claimant that this Honorable Court can depart from the provisions of the Evidence Act, the word used is ‘may’, as such it is permissive and not mandatory. It has to be done in the interest of both parties. Edewor v. Uwegba and Ors (1987) LPELR-1009 (SC), pg. 45-46, paras. B-B- on the use of ‘May’. As such, the documents cannot be admitted to the detriment of the defendant.

Thirdly, position of the claimant that the District Court of Sokoto lacks the jurisdiction to decide the suit, it is submitted that since that decision has not been set aside on appeal, this Court has no jurisdiction to set aside the decision nor sit on appeal over it. F. O. Loy v. Registered Trustees of the New Covenant Church (2017) LPELR-42183 (CA).

Fourthly, the plaint not is the original copy and not photocopy, thus, there is no need for certification. See section 88 of the Evidence Act 2011. Bankole v. Bankole (2012) LPELR-7988 (CA), PG. 8-9, PARA. F-D

8.ISSUES FOR DETERMINATION:

The issue for determination as formulated by the claimant’s counsel are:

  1. Whether the claimant is on preponderance of evidence entitled to all the reliefs sought against the defendant?

The defendant’s counsel has the following issues for determination:

  1. Whether this Honorable Court has the jurisdiction to entertain this case?
  2. Whether the plaintiff is on the preponderance of evidence entitled to all he reliefs sought before this Honorable Court or any other relief(s)?

For an effective dispensation of the case, the lone issue formulated by the claimant and the first issue formulated by the defendant are adopted as issues for determination.

 

  1. COURT’S DECISION

Having read the claim and the defence, the evidence and counsel final written address of both parties, it is the considered view of this court that, besides the objections on the documents and jurisdiction, the only controversies which constitute live issues in this case relate to the claim of the claimant that his salary was increased from N25,000.00 per month to N47,000.00per month and that he continued to work for the defendant from  March 2016 to April 2018.The defendant denies any salary increment  from N25,000.00  to N47,000.00 and also contend that the claimant absconded from work since from March 2016.

Some18 documents were tendered by the claimant and one was admitted as exhibit ADSA without objection while the other 17 documents were objected to by the defendant’s counsel, these documents were marked as “exhibits ADS1 TO ADS17 tendered” and ruling on them reserved till judgment. These documents are;

  1. ADS1 Tendered-Letter of appointment dated 24/3/2009
  2. ADS2 Tendered – Letter of promotion.

3.ADS3 Tendered -Documents of purchase/ procurement from various companies.

  1. ADS4 Tendered -Document in proof of purchase
  2. ADS5 Tendered – Sales invoice from SUNTEX.
  3. ADS6 Tendered – Invoice from FINET.
  4. ADS7 Tendered – Invoice from MACCO COMM  LTD.
  5. ADS8 Tendered – Sales  Invoice from MACCO COMM  LTD.
  6. ADS9 Tendered – Invoice from DE ONLY MAN for N1,177,000.
  7.  ADS10 Tendered – Invoice from DE ONLY MAN dated 24/3/2016.
  8.  ADS11 Tendered – Invoice from EMMATEX COMM. LTD dated 24/3/2016.
  9.  ADS12 Tendered – Invoice from EMMATEX COMM. LTD dated 24/3/2016 for N2,571,000.
  10.  ADS13 Tendered – Invoice from CHIZEL COMM. LTD dated 24/3/2016 for N81,000.
  11.  ADS14 Tendered – Invoice from CHIZEL COMM. LTD dated 24/3/2016  for N1,427,500.
  12. ADS15 Tendered – End of day stock of Alh. Gobirawa & Sons for 24/3/2016.
  13. ADS16 Tendered – End of day stock of Alh. Gobirawa & Sons for 25/3/2016.
  14. ADS17 Tendered – Claimant counsel letter dated 4/5/2016.

The DW2 tendered exhibit AYG2 and it was admitted without objection. Exhibit “AYG1 tendered” was presented by the defendant counsel and objected to by the claimant counsel and it was also reserved for ruling during judgment.

I shall now consider the admissibility of these documents and the defendant’s objection to the jurisdiction of this Court before proceeding to the merit of the case.

Objection on exhibit ADS1 tendered

Defendant’s counsel objected to the appointment letter marked as Exhibit ADS1 on the ground that it does not relate to the claimant as it does not bear his name. The rationale for this argument is that the appointment letter in question is addressed to ‘Ali Dan Suleiman’ while the claimant has sworn on oath in his deposition, which has been adopted before the Court, that his name is Aliu Dan Suleiman and sometimes also referred to as Dan sule Suleiman. As such, the document in question is not relevant to the claimant in the instant suit. And since the law is that relevancy governs admissibility, this document in question should not be admitted as it is not relevant to the claimant at hand. The counsel relied on sections 1(a) and (b) of the Evidence Act 2011. The counsel further relied on the case of African Continental Bank Ltd v. Alh. Umar Gwawada (1994) 4 SCNJ 168, for the law that the relevance of a document must be considered first before admissibility.

Claimants counsel responded that the appointment letter, promotion letter and claimant’s solicitor’s letter are relevant, pleaded and admissible. They have also been deposed to in the claimant’s statement on oath. The documents are very much relevant and are necessary in explaining the facts in issue and establishing the identity of the claimant. And it is trite in law that relevance is the basis of admissibility. See sections 1, 4, 5 and 7(a)-(e) of the Evidence Act. Ogu v. M. T. and M. C. S. Ltd (2011) 8 NWLR (Pt. 1249) 345. As such, the Court should admit the documents in evidence. In addition to the above, it is not the identity of the claimant that is in contention as DW1 and DW2 have properly identified and conceded under cross-examination that the claimant is the staff of the defendant referred to as ‘Ali Dan Suleiman’ in their processes.

The counsel urged the court to eschew technicality and consider the case on its merit. Order 1 Rules 9(2) & (3) of the NIC Civil Procedure Rules 2017. Okoye v. Onuche (2013) ALL FWLR (Pt. 681) pg. 9622 at 1632 paras C-H

I have considered the arguments of both  counsel as well as the pleading and the evidence. The argument of defendant’s counsel that the decision of this Court denying the change of name stands until it is set aside on appeal is misplaced.

The claimant by a motion dated 8/6/2018 and filed on 11/6/2018 prayed for AN ORDER granting leave to the complainant/ applicant to amend both the statement of claim and the statement of the complainant on oath by adding ALI DAN SULEIMAN  to paragraph 4 of both the statement of claim and the statement of the complainant on oath in suit NO.NICN /SK/05/2018 pending before this Honourable court. In a ruling dated 17/7/2018, this court, after pointing out several errors, omissions and slips in the process for which counsel urged the court to amend and grant the application, this court observed as follows;

Similarly, the simplicity of the process of this court must not degenerate in to a license for counsel to be tardy in doing his job nor can it be stretched to the extent of the court doing counsel’s work for him….. From the Rules therefore, it can be seen that an amendment should be an improvement but not an encroachment on or a complication of the original process. This application is anything but an improvement on the original process…. Granting the application sought herein will amount to condoning and endorsing more slips on the part of learned counsel for the claimant, something for which an amendment such as this rather ought to correct.

Then the court finally ruled as follows;

Making all the several corrections necessary in order to grant the amendment sought by the applicant will amount to the court doing counsel’s job as well as making the whole file and proceedings clumsy which can be avoided by refusing this application and allowing counsel to do the proper thing.

It can be seen then that the application was not for claimant to change his name and the application was refused with a view to allowing counsel to the proper thing. It is therefore not correct to argue that this court had ruled denying the change of name.

The complaint has the name of the claimant as Aliyu Dan Suleiman in the heading. The statement of facts has the name of the claimant as Ali Dan Suleiman in the heading. While the witness statement on oath has Aliyu Dan Suleiman in the heading but the deposition has his name as Aliu Dan Suleiman. It is clear that “Aliu” is a clear spelling error as it can be reasonably seen that “Aliyu” was intended. The defendant agrees that he knows Ali Dan Suleiman who is also known as Dansule Suleiman. The claimant said he is also known to the defendant as Dansule Suleiman. The objection to this document is that it bears Ali Dan Suleman and that is not the name of the claimant. In the statement of defence and evidence of the defendants as summarized above, they admitted knowing the claimant as Ali Dan Suleman who worked for the defendant. The 2nd defendant particularly also acknowledged knowing the claimant as Aliyu Dan Suleman under cross examination, this is further buttressed by exhibit ADSA issued to the claimant with the name Aliyu Dan Suleiman. In the circumstance, even though the names of the claimant are numerous, he is clearly known to the defendant by those names.

Accordingly, the objection lacks merit and is overruled. The document tiled offer of appointment addressed to Ali Dan Suleman is admitted in evidence and marked as exhibit ADS1.

Objection on exhibit ADS2 tendered

Secondly, on Exhibit ADS2, defendant’s counsel argued that the promotion letter dated 21st January, 2011 in the name of Dansule Suleiman, there is no evidence of the claimant on which the document could be based. This is so because in the claimant statement on oath, particularly paragraph 6, it was not the claimant speaking but rather a direct lift from the claimant’s statement of claim. The paragraph states: ‘that the claimant avers that…’ which is a third party point of view, instead of a first person point of view. For this, the counsel argued that the document is not relevant and hence, inadmissible placing reliance on  section 1(a) (b) of the Evidence Act 2011 and the case of Afemai Microfinance Bank Ltd v. Seacos Nigeria Ltd (2014) 27 WRN 83 at 95-96 lines 4-5.

The claimant’s response on the first objection above also covers this objection.

The court has read paragraph 6 of the witness statement on oath, it is true that the language used therein is not in the first person singular but in the 2nd person singular as in a pleading. However, the aim is clear and that will not be defeated on ground of semantics. Furthermore, this argument does not take into cognizance paragraph 4(b) of the witness statement on oath which states as follows;

“4(b)that I am also referred to as Dansule Suleiman by the defendant” which is a fact admitted by the defendant. Accordingly, I find the objection to be lacking in merit and same is hereby overruled. The document tiled “promotion letter” addressed to the claimant as  Dansule Suleiman by the defendant is admitted in evidence and marked as exhibit ADS2.

Objection on exhibits ADS3-ADS14 tendered

On Exhibits ADS3 to ADS14 tendered, defendant’s counsel argued that they are secondary evidence (being photocopies), and for them to be admissible, proper foundation must be laid as to the whereabouts of the originals. See section 89 (a) (i) and (ii) of the Evidence Act 2011.Similarly, the above listed exhibits are computer generated evidence and there was no compliance with the conditions stipulated under section 84(2) (a-d) of the Evidence Act 2011. There was equally no certificate of compliance as stated under section 84(4) (c) of the Evidence Act 2011. The counsel further argued that the defendant was not given notice to produce the originals of the documents in order to render the secondary evidence tendered admissible. See section 91 of the Evidence Act and the case of Nigeria Merchant Bank Plc v. Onabolu (1999) 12 NWLR (Pt. 636) 302. Balogun Enterprises Ltd v. S. J. (1992) 4 NWLR (Pt. 235) 361.

As for exhibits ADS3, ADS4, AD13, AD14, AD16 tendered, claimants counsel argued that proper foundation has been laid for them and all of them are relevant and admissible. They have been pleaded in the claimant’s statement on oath and DW1 and DW2 in their evidence have identified and attested that they were invoice of the purchase made by the claimant on behalf of the defendant. These documents are therefore necessary, relevant and will assist the court in doing substantial justice. See Order 30 Rules (1) & (4) of the Rules of this Court. Moreover, the Court can depart from the provisions of the Evidence Act 2011 in the interest of justice. The Court is thus urged to admit the documents in evidence. Order 1 Rule 9(1) (2) and (3). Order 5 Rule 4(1) (a) & (b) of the Rules of the Court.

The Court finds as a fact that exhibits ADS3 to ADS14 are indeed photocopies and that no foundation was laid for their admissibility and in the circumstance of this case, given that the facts that these documents seek to establish, namely that the claimant makes purchases on behalf of the defendant have not been denied but admitted. Learned claimants counsel has urged the court to admit these documents by invoking Order 1 Rule 9(1) (2) and (3), Order 5 Rule 4(1) (a) & (b) of the Rules of the Court to depart from the provisions of the evidence Act since the documents are relevant. The Court is thus urged to admit the documents in evidence.

When considering whether or not to invoke section 12 of the National Industrial Court Act 2006 and Order 1 Rule 9(1) (2) and (3), Order 5 Rule 4(1) (a) & (b) of the Rules of the Court to depart from the provisions of the Evidence Act to admit a document in the interest of justice, the interest of justice is when rejecting the document will, on the alter of technicality or procedure, cause injustice to the party tendering same and admitting it would not have caused any injustice to the opposing party but would rather put the Court in a better position to properly adjudicate on the live issues before it.

The admission or rejection of these documents will not determine any live issue in this case. The compelling interest of justice therefore has not arisen in the circumstance of this case to warrant calling on the court to depart from the requirement of the evidence Act to admit these documents. Accordingly, exhibits ADS3 tendered to ADS14 tendered are rejected and are to be so marked.

On the purchase invoice tendered by the claimant, Exhibits ADS5 ADS6 ADS7, ADS8, ADS11 and ADS12 tendered, counsel argued that they are all signed by the claimant. However, a closer inspection of the same documents that were frontloaded together with the Complaint will reveal that the signature is conspicuously missing. The counsel argued that the Exhibits have been tampered with.

Claimant counsel did not argue in response to this.

The Court finds it to be true that the copies of these documents were front loaded and they clearly show that the claimant did not sign his own portion on these documents, but the copies tendered, besides being photocopies without foundation, indicate that the claimant signed his own portion on these documents. I agree with the defendants counsel that this suggests a tampering with these documents in the absence of the original documents. For this reason I also reject these documents. Exhibits ADS5 ADS6 ADS7, ADS8, ADS11 and ADS12 tendered remain rejected and they are to be so marked.

Objection on exhibits ADS15 and ADS16 tendered.

Counsel also submitted that Exhibits AD15 and AD16 are unsigned, and in law a document not signed is inadmissible. See M.N.N. v. Nwachukwu (1979) NNLR 49. Learned claimants counsel similarly has no specific response to this arm of the objection.

The court has observed that these documents truly are unsigned. It is now trite that an unsigned document is not worth the paper on which it is written. It is worthless and inadmissible. Exhibits ADS15 tendered and ADS16 tendered are according rejected in evidence and are to be so marked.

Objection on exhibit ADS17 tendered.

Learned defendants counsel indicated during trial that he would be objecting to this document, however, there is no any such objection in his final written address. This letter is the claimant’s letter to the defendant and it is dated 4/5/2016. The letter is pleaded in claimant paragraph 18 of the claimant’s statement of facts and the evidence on this letter is in paragraph 18 of the claimant’s witness statement on oath. The defendant in paragraph 26 of its statement of defence admits service of this letter on it and in its paragraph 27 admits that it did not reply the said letter because it was wrongly addressed to “ALHAJI YARO GOBIRAWA &SONS LTD” and not “ALHAJI YARO GOBIRAWA &SONS”.

Since this letter was expressly admitted by the defendant and the court does not know what other objection there is to this letter, the said letter is hereby admitted in evidence and marked as exhibit ADS3.

 

Objection on claimants’ reply and statement on oath filed on the 3rd of December 2018.

Counsel also argued that the claimants’ reply and statement on oath that was filed on the 3rd of December 2018 are incompetent and ought to be expunged from the records of the Court. This is because the reply and the further witness statement on oath were filed eight (8) months after the statement of defence of the defendant was filed. By orders 30 Rule 2(3) and Order 33 Rule 1 of the Rules of this Honourable Court the claimant had 14 days within which to file his reply to the statement of defence. The use of the word ‘shall’ in the order means that the provision is not permissive but mandatory. See UAC V. Macfoy (1962) A.C.152. Gundiri v. Nyako  (2012) NSCQLR (Pt. 1) pg.26. Claimants counsel did not respond to this objection in his written address.

The defendants statement of defence and all other processes were served on the claimants former counsel, J.O. Uwadea Esq. on 9/4/2018, by Order 33 Rule(1) of the Rules of this Court 2017, the claimant had 14 days to file any reply and the 14 days  expired on 23/4/2018.The claimant’s reply together with the further witness statement filed on 3/12/2018 was filed way outside 14 days without leave of court and accordingly it is incompetent and is hereby struck out.

Objection to the jurisdiction of this court, res judicata.

The defendant counsel also argued on whether this Honorable Court has the jurisdiction to hear the matter. The argument of the counsel in this regard is that the instant case is res judicata as the claimant had already instituted an action (Suit No. SK/CV. 20/2017) before the District Court Sokoto which was dismissed on the 4th of April, 2017. The plaint note (Exhibit ADY2) shows that the claimant’s suit was for the recovery of his salary for the Months of March to August 2016, a total of N285,000, at N47,500 per month.  Furthermore, the claimant himself admitted under cross examination that he instituted the suit and it was dismissed. This admission though fatal to the case of the claimant, supports that of the defendant. Abioye v. Lawal (2007) ALL FWLR (Pt. 350) pg. 1378 at 1385, paras  D-E, ratio 5. Kimdey v. Governor Gongola state (1988) 5 SCNJ 281. Onyegwu v. Ebere (2004) 14 NWLR (Pt. 889) 20 at 39, paras F-G. The defendants counsel urged the Court to hold that it has no jurisdiction to decide on the case as it has already been decided and cannot be re-litigated without setting aside the subsisting decision of the District Court.

The counsel to the claimant argues that contrary to the argument of the defence, this Court has jurisdiction to entertain the matter as the issue of Res Judicata is non-applicable to this case. This is because the District Court lacked the jurisdiction to entertain the suit in the first place as it falls within the purview of employment matters, as such any decision it reaches is a nullity and there is no need to appeal against that decision. The appropriate court with jurisdiction is this Honourable Court- see  Reptico S.A. v. Afribank Nig. PLC (2013) 14 NWLR (Pt. 1373) pg. 172. Ogunbadejo v. Adebowale (2008) ALL FWLR (Pt. 405) 1707.

A close examination of what constitutes Res Judicata will reveal that the ingredients have not been satisfied in this case. In A.I.C. LIMITED V. MANNESMANN-ANLAGENDAU AG AND 1OR (1994) 3 NWLR PT. 334 PG. 606. PARAS. E-F, the Court of Appeal spelt out the condition for a successful plea of res judicata as follows;

“A plea of Res Judicata presupposes that:

  1. The judgment in question is a judicial decision duly pronounced by a court or tribunal having competent jurisdiction in that behalf;
  2. The judgment was final;
  3. It was or involved a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised;
  4. The parties to the judicial decision were the same persons as the parties to the proceedings in which estoppel is raised and in respect of the same cause of action or that the decision was in Rem”.

See also Ajogogo v. Adegoriola (1961) WNLR 177 pg. 606. Paras. D-F

I have considered the said plaint note, exhibit AYG2, it was instituted by the claimant against ALHAJI YARO GOBIRAWA & SONS LTD not ALH. YARO GOBIRAWA  (Trading under the Name and style of Alh. Yaro Gobirawa & Sons)

Similarly, that suit claims for the sum of N285,000.00 (two hundred and eighty five thousand Naira  only being unpaid salaries due  and payable to the plaintiff since March 2016 up to and including august 2016.  Not for the sum of N1,187,500 from March 2006  as in this case.

The present case is by the claimant against ALH. YARO GOBIRAWA (Trading under the Name and style of Alh. Yaro Gobirawa & Sons). This suit seeks for (a} The sum of One Million, One Hundred and Eighty Seven Thousand, Five Hundred Naira (N 1,187,500.00) being the unpaid salary of the Claimant since March 2016 to April 2018.  It is clear that the defendant in the former case is not the same in this present case, the amount and period covered in the former case are not the same in this case. In such a situation, res judicata will not apply. See the same case of A.I.C. LIMITED supra where the court held;

“Where there are more than one causes of action against the same persons or distinct persons, judgment in the previous trial cannot be said to have extinguished the right of the plaintiff to sue on other items even though the causes of action might have been rooted or based on the same agreement. Where money can be due from time to time, judgment in an early action upon the amount already due should not estop the plaintiff from suing subsequently for commission on the amounts becoming due after the first action”.

Furthermore, res judicata requires that the earlier court is a court of competent jurisdiction to entertain the matter and that it finally determined the matter on the merit. The judgment of the District Court is not before this court and this court cannot assume that the matter was determined on the merit.

By section 254C of the Constitution of the Federal Republic of Nigeria as amended, the Jurisdiction of the National Industrial Court is to the exclusion of any other court and by section 254C(k), non -payment of a workers’ salaries is within the exclusive jurisdiction of this court. The exercise of the jurisdiction of this court by the District Court of Sokoto State therefore cannot serve as res judicata to a further litigation in this Court. For all the above reasons, I find that this case is not res judicata and I so hold.

Defendant’s objection to exhibit AYG1

Claimant’s counsel argued that there is a no evidence of delivery of the letter in the sense that no name was given of the person who made the delivery nor was he put on the stand to testify, there is no time, date and location. As such, the claims amounts to nothing more than hearsay and should be discarded. See sections 37 and 38 of the Evidence Act.

The Court does not need to go far before finding that this letter of termination was never delivered to the claimant. On the face of the letter, it is the original letter still in possession of and tendered by the defendant and there is no evidence of receipt on the face of it to show that any copy of it was delivered to the claimant. Furthermore, in paragraph 30 of the statement of defence and paragraph 23 of DW2 witness statement on oath, the defendant states thus;

“That upon the termination of the appointment of Ali Dan  Suleiman, his letter of termination was issued to him but he refused to collect same and left the pemises my business outfit”.

It is clear from the pleading and evidence that this document is not sought to be tendered as evidence that it was served on the claimant but to prove that such a letter was written but claimant refused to accept same, it is therefore admissible for that purpose only and the said letter titled termination of appointment dated 30/5/2016 is admitted in evidence and marked as exhibit AYG1.

 

JUDGMENT ON THE MERIT

Having disposed of the objections, the first issue to determine is the salary of the claimant. The claimant claims that his salary was increased from N25,000,00 to N47,000.00 per month. Besides his allegation and his counsel letter, there is no any evidence of such increment besides exhibit ADS2 which provides for a monthly salary of N25,000.00. The burden of proof on this matter which is placed on the claimant has not been discharged. The claim that his monthly salary was N47,000.00 is not proved. The only evidence proved before the court fixes the salary of the claimant at N25,000.00 per month. I so find and hold.

 

The next issue relates to whether the claimant absconded from work or whether his employment was terminated.

The defendant contends that the claimant absconded from work from March, 2016. However, evidence reveals that the claimant worked for the defendant on 24th and 25th March. Evidence also shows that the claimant applied for casual leave on 29th April,2016 necessitating the defendant’s refusal in exhibit ADSA dated 1st May, 2016. It is also the evidence of the defendant that as at 30th May, 2016, the claimant was still with the defendant when he purportedly refused to accept exhibit AYG1 and rather left the defendant premises.

It is also in the evidence of the claimant that he did not work for the defendant beyond 24th and 25th March 2016.A reproduction of the claimants’ evidence under cross examination is necessary here. The claimant testified under cross examination on 3/12/2018 thus;

“I have been reporting to work since March 2016 till last Saturday. I was not assigned any other duty and I did not perform any. Besides the duty I carried out for the defendant on 24th and 25th March, I was not assigned with any other duty and I did not perform any”.

It is therefore clear, that although it may appear by the evidence, that the claimant remained with the defendant till 30th May 2016, it is also clear that the defendant had refused to assign to him any duties in his organization after 25th may, 2016 and did not pay him any salaries. These facts, coupled with the defendants accusation of the claimant of not reporting to work in exhibit ADSA dated 1/5/2016 which read as follows; “The management have understood that you have not been reporting to work from the 1st day of March up to the 30th April 2016. It is however surprise that you are still applying for a casual leave while you have absconded from your work”; makes it easy to understand why the defendant would refuse to assign any duty to the claimant; it also lends some credence to the assertion by the defendant that the claimant was only sent to Lagos to deliver to his workers goods earlier purchased by him.

It is also easier to understand why and to believe that the defendant wrote the termination letter, exhibit AYG1 on 30th May 2016 but was unable to serve the claimant. In the light of the above, I find it highly probable and I believe the evidence of the defendant that the claimant refused to accept his termination letter and walked away from the premises of the defendant. I find it highly improbable and I disbelieve the claimant that he kept coming to work for two years after knowing that the defendant has refused to assign to him any duties to perform and has refused to pay him.

It is the firm view of this court that since the employment of the claimant was not statutory and he was not on suspension, the refusal of the defendant to assign any duties to the claimant from 26th March to 30th May and refusing to pay him any salaries is evidence that his services were no longer required by the defendant and the defendant had terminated his employment by conduct. See MR. OMADACHI V. NOTORE CHEMICAL INDUSTRIES LTD. [2019] 1 NCLR. PG. 144-145 wherein it was held that:

“…While the claimant is contending that no letter of termination of employment was served on him… and that his salary was stopped in the month of March, 2015, the defendant tendered exhibit DW1 to prove that the claimant’s services with the defendant have been terminated. I must pause here to state that, while I agree with the claimant that he was not given any letter of termination of appointment, it must be pointed out straight away that, in a master and servant employment such as the instant case not being an employment with statutory flavor, termination of employment can be made either orally, in written form or even by conduct, the conduct of the defendant in stopping salary is enough proof that the claimant’s services were no longer required by the defendant’.

 

Now if the claimant did not work for March, April and May, the defendant’s intention in exhibit AYG1 to terminate the employment of the claimant with effect from 30th May, 2016 means the defendant elected to condone the action of the claimant from March, April and May 2016.

The defendant is therefore  bound to pay the claimant for the months of March, April and May 2016 as well as one month salary in lieu of notice at the rate of N 25,000.00(twenty five thousand naira) per month which will amount to N100,000.00 (one hundred thousand naira) only and I so hold.

  1. COUTR ORDER

On the whole, the claim succeeds in part and for the avoidance of doubt, it is hereby ordered as follows;

  1. The defendant is to pay to  the claimant the sum of N100,000.00 (one hundred thousand naira) representing his salaries for the months of March, April and May 2016 as well as one month salary in lieu of notice at the rate of N 25,000.00(twenty five thousand naira) per month.
  2. The judgment sum is to be paid within 21 days of this judgment failure upon which it shall attract 10% interest per annum.

I make no order as to cost.

 

………………………………….

HON.JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, SOKOTO.

 

 

 

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