IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 3RD MAY, 2019 SUIT NO: NICN/AK/25/2018
BETWEEN
1. FERNADEZ JUAN CANTALAPIEDRA
2. KELVIN CANTALAPIEDRA ………………….CLAIMANTS
AND
1. GRUPO SYSTEMSO NIG. LTD
2. ALHAJI FATAI BALOGUN ………………..DEFENDANTS
3. ZIKIRU CHANDY TOPE ADAMS
4.ABOLADE ISIAKA OSOBA
REPRESENTATION
Akinyemi Omoware with him is Rotimi Ologun for the claimants
O.S Adedeko for the defendants
JUDGMENT
This suit was instituted via a General Form of Complaint wherein the claimants claimed against the defendants jointly and severally as follows:
1. €80,938 being the outstanding balance of accumulated salary, living expenses and other entitlement owed the claimants as contained in the letter of undertaking dated 14/12/2017.
2. €20,000 as general damages.
3. 10% per annum interest on the judgment sum until same is fully liquidated.
The claimants according to their pleadings are Spanish who were invited by the defendants as the Electrical/Technical Expert/Resource persons for the building and construction of International Conference Center (Dome) and all travelling expenses paid by the defendants, that the 1st claimant was one of the core personnel of the defendants as specified at page 7 of their handbook. That on the demand of the defendants, the 1st claimant bought some materials with his money for the construction work, the materials which the defendants refused to pay for include:
(a) Balance money order incomplete – €250
(b) 1 Record machine names for electrical panels – €300
(c) 36 fluorescent (Philips) – €264
(d) 1 safety shoe – €85
(e) 10 packages of flarges – €20
(f) 6 boxes of nail spit – €900
(g) 2 rolls silver tin – €60
(h) 1 safety glove – €70
(i) 1 platform electronic control board 715H10DHL – €825
(j) 2 communication cables air conditioning – €20
Total-€2794
1st claimant averred further that it was agreed by parties that he shall be entitled to salary of €3,500 monthly, living expenses and all entitlement. That sequel to the agreement he worked from September 2012 to February, 2016 and was paid all his salaries and entitlement. It is also averred that the defendants requested the services of the 2nd claimant who was invited to Nigeria and worked between August to October, 2015 but was not paid the agreed salary and entitlement in the sum of €2,800 pay till date. The 1st claimant averred that he further worked for the defendants from March, 2016 till December, 2017 and was not paid his salary, living expenses and other entitlement. The claimants went on to state that their total entitlement from March, 2016 till December, 2017 for the 1stclaimant and August to October, 2015 for the 2ndclaimant which the defendants refused to pay despite repeated demands is €80,938, that the indebtedness was admitted in letter of obligation dated 14/12/2017 by the defendants, but till date has not paid it indebtedness.
The defendants in their defence averred that at the end of February, 2016 when the 1stclaimant’s job with the defendants came to an end, he was paid his full entitlement (salary and travel allowance) but that he pleaded with the 1stdefendant to allow him and his son stay in the apartment he occupied for extra three (3) months (from March, 2016 – May 2016) pending when he would depart Nigeria, the request was granted but that the claimants did not leave until December, 2017, that he pleaded to be allowed to stay pending when he would be paid for the work, he did for Premier Timber and that he would be ready to pay the rent of the apartment beyond the period he was allowed but never did so. They posited that the 2nd claimant was never invited at the instance of any of the defendants but at the request of the 1st claimant for a visit that the 2nd claimant never worked for the 1st defendant, thus not entitled to any payment from it. The defendants stated further that the 2nd defendant is neither a shareholder nor a Director of the 1st defendant that he is not a proper and necessary party to this suit, they thus urged the Court to strike out his name. It is further stated that the 1st claimant was engaged as an Electrical engineer and not as an expert/resource person, that his name was included in the 1st defendant’s handbook being the person in-charge of the electrical work as demanded in construction work, also that the 1st claimant was responsible for the payment of his flight ticket to Nigeria. It is stated that the 1st defendant bought all the materials used for the construction work and that the 1st claimant did not work for it between March, 2016 and December, 2017, that the 1st defendant never promised to pay lump sum in respect of additional contract from State Government as it was never awarded any additional contract, that the letter of obligation mentioned by the claimant never emanated from it. The 1st defendant contended that the purported letter of obligation was fraudulently procured by the 1st claimant and not binding on it.
PARTICULARS OF FRAUD
a. That letters and/or correspondence emanating from the 1st defendant are usually on the letter head paper of the 1st defendant with its logo.
b. That the alleged letter of obligation is not on the well-recognized letter head paper of the 1st defendant.
c. That the 1st claimant is the maker of the purported letter of obligation.
d. That the letter of obligation never emanated from the 1st defendant.
e. That the said letter was never endorsed by any of the authorized signatories of the 1st defendant’s company.
f. That the 1st defendant cannot be bound by letter not emanating from it.
g. That the 1st claimant fabricated the said letter of obligation.
The defendants contended that the claimants’ action is unmeritorious, baseless and frivolous and they were entitled to N1.5 million paid for securing legal services and representation in defending this suit and therefore urged the Court to dismiss the case with cost.
Moreover, the defendants, by way of counter-claim, counter- claimed against the claimants as follows:
a. Sum of N1,625,000.00 (One Million, Six Hundred and Twenty Five Thousand Naira only) being the money accruable to the 1st defendant/counter-claimant as rent/mense profit payable by the 1st claimant between June, 2016 and December, 2017, the period when the 1st claimant occupied 1st defendant’s 5 bedroom Duplex apartment at Akure, Ondo State.
b. Sum of N1.5 million being the cost of litigation and legal representation to defend this suit.
c. N5,000,000 (Five Million Naira) general damages.
The claimants in defence to the counterclaim averred that the 1st claimant is not indebted to the defendants to any sum in rent as he was gratuitously given apartment where he lived with 2nd defendant’s brothers and the Chief Security Officer of the 1st defendant and that he did not at any time material work with/for Premier Timber. They stated that the stay of 1st claimant in Nigeria was guaranteed by the 2nd defendant on behalf of the 1st defendant with the Nigeria Immigration Service. They also averred that the defendants are not entitled to N1.5 million or any sum at all from them as it is their non-compliance with their obligation under the contract that led to institution of this suit, they challenged the jurisdiction of this Court to determine the counterclaim of the defendants and urged the Court to dismiss same with cost.
The Claimant during trial testified for himself as CW, he adopted his statement on oath dated 15th of May, 2018 and 28th June, 2018 as his evidence in this case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits F-F6. The defendants during trial testified through one Ogunyemi Mayowa Ilesanmi, as DW. He adopted his statement on oath dated 21st of June, 2018 as his evidence in this case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits OM-OM4.
The defendants filed their final written address on 5th February, 2019 as it is customary to do at the close of trial. They raised four issues for the Court’s determination;
1. Whether the 2nd, 3rd and 4th defendants are proper and necessary parties to this suit and can be liable to the claimants.
2. Whether Exhibit F3 meets the requirement of the law to warrant making the defendants liable based on it.
3. Whether the claimants have been able to establish their case on the preponderance of evidence before this Court to enable this Court grant their reliefs.
4. Whether the 1st defendant is not entitled to its counter-claim before this Court.
The argument of the learned counsel to the defendants on issue one is that by virtue of Exhibits OM – OM1 before this Court, the 2nd – 4th defendants are neither Shareholders/members nor Directors of the 1st defendant, therefore they are improperly and wrongfully sued by the claimants and that the failure of the claimants to provide acceptable material evidence in law before this Court to establish that the defendants under reference are members and Directors of the 1st defendant is fatal to their case and claim against the said defendants. They urged the Court to act on the pieces of evidence in Exhibits OM – OM1 and to so hold and equally strike out the names of 2nd – 4th defendants from this suit.Order 13 Rule 14(2) of the National Industrial Court was referred to.
In the event that the Court is of the view that the 2nd – 4thdefendants are Directors and members of the 1st defendant, it is submission that they cannot be liable personally to the claimants in lawhe cited the cases of Dansa Foods (Nig) Ltd v. Isong [2011] ALL FWLR (Pt. 596) 593 at p. 599; Aureol Plastic Ltd [2002] FWLR (Pt. 129) 1471 at p. 1489 and Section 65 of Company and Allied Matter Act.
On issue two, it is the submission of the learned defence counsel that Exhibit F3 was not on the letterhead of the 1st defendant and that on the face of the Exhibit, the 1stdefendant cannot be said to be the maker of it as it did not sign it, therefore cannot be bound by same as it is settled law that unsigned document is worthless, valueless, insignificant and cannot be accorded any recognition by the Court, they also added that the signature at the bottom of the Exhibit by an undisclosed person cannot be said to be the signature of the official of the 1stdefendant in the eye of the law. Counsel relied on the cases of Oyama v. Obe [2016] ALL FWLR (Pt. 840) 1274 at p. 1286 and S.P.D.C.N Ltd v. Obonogina[2018] 17 NWLR (Pt. 1648) 221 at p. 235, paras C-D. The Court is urged not to ascribe any probative value to Exhibit F3 before it not to talk of making the 1st defendant liable based on it as the claimants have failed to discharge the burden place on them and resolve this issue against the claimants.
In respect of issue three, the defendants adopted argument on issues one and two as part of their submission and further submitted that if Exhibit F3 which is the foundation of the claimants’ claim is worthless and amounts to a document without probative value, the claimants’ case should therefore be dismissed by the Court. They further urged the Court to hold that the unchallenged evidence of DW1 that all the materials used in the construction of the Dome project were purchased and procured by the 1st defendant are deemed reliable and acceptable as they relied on the authority of Provost, LACOED v. Edun[2004] ALL FWLR (Pt. 201) 1628 pp. 1642 – 1643, they added that the Court should discountenance the evidence of CW1 that he bought the materials listed in paragraph 8 of his written deposition on oath of 15th May, 2018, same being at variance with Exhibit F3 which revealed that the 1stdefendant collected material from one Antonia, the 1st claimant’s wife and also that the failure of the claimant to tender in evidence receipt of purchase of the items is fatal to his case, hence, the claim cannot be granted having not been satisfactorily proved by him.Reliance is placed on Ezenwa v. Ibeneme [2004] ALL FWLR (Pt. 223) 1786 at p. 1816 and Ikekwen v. C.O.P Delta State [2004] ALL FWLR (Pt. 213) 1852 at pp. 1866 – 1867 among others.
It is further submitted that there is no material concrete evidence before this Court to enable it conclude that the 2nd claimant worked for the 1st defendant between August and October, 2015, as such, the claim for any monetary claim by the 2nd claimant for the alleged work done is unsustainable and remained unproved as required by the law, they urged the Court to so hold. Furthermore, the defendants contended that since Exhibit F2 is predicated on Exhibit F3, it therefore means that Exhibit F2 cannot stand. Also that Exhibits F4 – F6 fall within the category of computer generated evidence which can only be admissible in law upon compliance with the provision of Section 84 (1) and (2) of Evidence Act, 2011, that they did not meet the requirement of the law, they urged the Court to expunge them from the records of this Court.
It is submitted that reliefs two and three are predicated on relief one and that since same is not grantable for lacking probative value, reliefs two and three are also not grantable. Also, that the failure of the claimants to prove by way of evidence their entitlement to interest on the alleged debt being claimed makes the relief not grantable in law.
On issue four, it is the argument of the counter-claimant that by virtue of evidence of DW1 before the Court, the counter-claim of the 1st defendant has been proved and established, it therefore urged the Court to grant the counter-claim while it relied on the case of Asadu v. Ifeanyi [2010] ALL FWLR (Pt. 517) 736 at p. 752.
The claimants on their part formulated three (3) issues for the determination of this suit in their final address filed on 20th February, 2019, viz:
1. Whether the 2nd – 4thdefendants are proper and necessary parties to this suit and can be liable to the claimants.
2. Whether considering the totality of evidence led on records, the claimants have not proved their claim on preponderance of evidence to warrant the grant of their reliefs.
3. Whether the Court is clothed with jurisdiction to determine the counterclaim of the defendants and if so, whether the defendants have proved their entitlement to same by credible and cogent evidence.
Learned claimant counsel on issue one, submitted that their pleadings, evidence led and Exhibit F3 show clearly that the 2nd – 4thdefendants are the directing minds of the 1stdefendant upon which it act and transact with them, hence, they are proper and necessary parties to give effect to the decision of this Court in this suit and are therefore liable to them. Furthermore that the denial of the directorship of the 3rd -4th defendants in the defendants’ written address amounts to approbation and reprobation as they admitted same in paragraph 7 of their joint statement of defence, that the 1st defendant is therefore estopped from denying same. The authority of Salawu v. Yusuf [2007] 31 NSCQR 550 @ 579and Order 34 Rules 1 & 4 of the National Industrial Court (Civil Procedure) Rules 2017 are commended to the Court. The claimants therefore urged the Court to resolve this issue in their favour.
The claimants’ argument on issue two is that placing reliance on the totality of admissible evidence on records, they have proffered cogent and credible evidence to warrant the grant of their claims. It is submitted that Exhibit F3, which the claim of the claimants and defence of the defendants revolve around, is the undertaking genuinely entered into by parties as assurance of defendants’ indebtedness to the claimants which the defendants denied knowledge of same in that they never sign it. It is the submitted that a perusal of Exhibits OM4-OM5 would reveal that the two letters were signed by 3rddefendant as Technical/Director for the 1st defendant as his signature is the same with the signature on Exhibit F3. They urged the Court to juxtapose the signatures as contained in Exhibits F3, OM4 & OM5 and make a finding therefrom,they equally urged the Court to invoke the provision of Section 101 of the Evidence Act, 2011 and also rely on the authority of Ndoma-Egba v. A.C.B Plc [2005] 14 NWLR (Pt.) p. 79 @ 85. Further contention of counsel is that Exhibit F3 needs not to be contained on 1st defendant’s letterhead because it is not a correspondence but an agreement endorsed by both parties, also that it is not a sole document of the 1stdefendant but a joint document of parties’ respective obligation, therefore with or without being contained on letterhead will not affect compliance with the substance of its contents, they urged the Court to so hold.
Counsel posited that the contention by the defendants that the appropriate column was not signed is an afterthought and an attempt to elevate technicality above substantial justice as it is trite that what is concerned in law is whether the document is signed by the parties and not whether a particular location is signed. That all authorities relied on by the defendants are not relevant. In addition, it is contended that the heavy weather being make by the defendants as to who prepared the documents is mischievous, that there is no contradiction that is material to devalue the worth of the document. On the contention that the claimants failed to tender receipt for which items were purchased, it is submitted that the defendants never requested for the production of these documents as required by law but rather under cross-examination of CW1, the Court is urged to hold that non production of the receipt does not cast doubt on claimants’ case. Order 40 Rules 28-30 of the Rules of this Court is relied upon.
Again, the counsel submitted that Exhibit F6 (Visa application/Invoice addressed to the 1st defendant) put to rest the denial of the defendants that they invited the 2ndclaimant to Nigeria and that the said Exhibit is not computer generated evidence, as such, does not fall within the purview of Section 84 of the Evidence Act.They admitted that Exhibits F4 & F5 are computer generated evidence and that the condition precedent for their admissibility was met as evidence thereof was led pursuant to paragraph 8 of CW1 additional statement on oath. Furthermore, that the denial of Exhibit F2 does not derogate from the power of the Court to grant the reliefs sought as contained in Exhibit F3. Finally, they urged the Court to hold that there is plethora of evidence to establish the entitlement of the claimants to the reliefs sought.
On issue three, it is the position of learned claimant counsel is that the Court should decline jurisdiction to determine the counter-claim as it lacks the requisite jurisdiction to determine landlord and tenant matter and that in the event that the Court has jurisdictional competence to do so, it is submitted that same is not proved and that the counter-claim is deliberately raised to mislead the Court. They therefore urged the Court to dismiss same with punitive cost and grant their claims.
Defence counsel filed a reply on point of law wherein they submitted that it is settled law that a limited liability company is a juristic person and can sue and be sued in its corporate name, it is separate and distinct from its shareholder and Director, as such, it will be unnecessary to join any of its members of officers in an action against it. That in the instant case, there is no criminal allegation or fraudulent act against the 1st defendant to warrant this Court to lift the veil of its incorporation for the purpose of making those behind the veil (i.e. 2nd -4th defendants) liable personally for the act of the 1stdefendant, thus the conclusion of the claimants at paragraph 3.10 of their written address is misconceived, baseless and not in tandem with the requirement of the law and that their contention in paragraph 3.8 of the address is not supported by evidence on record, therefore should be discountenanced.Counsel cited in support the cases of Public Finance Securities Ltd v. Jefia [1998] 3 NWLR (Pt. 543) 602 and Adewumi v. Adebest Telecom (Nig) Ltd [2013] ALL FWLR (Pt. 703) 1954 at pp. 1992 – 1994. Arguing further, counsel submitted that the contention of the claimants to the effect that failure of Exhibit F3 to be on the 1stdefendant’s letterhead paper will not affect the compliance of the substance of the content is otiose and a gross misconception in law. See Mkpat Enin Local Government v. Pikk (Nig) Ltd [2004] ALL FWLR (Pt. 236) 287 at p. 309.
They again argued that assuming without conceding that the contention of the claimants in paragraphs 3.27 – 3.29 of their address represent evidence on record, the said evidence is at variance with paragraph 13 of the statement of facts, therefore goes to no issue as supported in the case of Kara v. Wassah [2001] FWLR (Pt. 78) 1191 at p. 1204. It is also submitted that by virtue of Section 254(c) of the 1999 Constitution of the Federal Republic of Nigeria, this Court is clothe with jurisdiction to entertain the 1st defendant’s counter-claim.
They finally urged the Court to dismiss the claimants’ case and grant the 1stdefendant’s counter-claim.
Having carefully perused the processes filed by parties and all accompanying documents, the testimonies of witnesses in the case and arguments of both counsel as distilled in their respective written addresses. It is in my calm view that the issues that will best determine this suit are;
Whether or not the claimants are entitled to their claims.
Whether or not the defendants/counterclaimants are entitled to their counter-claims.
By way of addressing same preliminary issues raised by the defendants, it is pertinent to state that 1st defendant stated that the 2nd to the 4th defendants are neither shareholders nor Directors of the 1st defendant as such they are not proper and necessary parties to this suit, they thus urged the Court to strike out their names. The claimants at paragraph 6 of their reply to the defendants’ statement of defence averred that the 2nd defendant is a member/Managing Director of the 1st defendant and he did guaranteed, on behalf of the 1st defendant, the legitimate stay of the 1st Claimant in Nigeria with the Nigerian Immigration.
Now it is germane to state that a party to an action is one by/or against whom a case is brought. The competence of parties to an action is important, because default in that respect touches on the competence of the Court to entertain the suit. An action can only succeed if the parties are shown to be proper parties to whom rights and obligations arising from the cause of action is attached. Parties are those who have direct interest in the subject matter of a dispute. That is, there must be a nexus between the plaintiff and the defendant or the appellant and the respondent in any suit. See the notorious case of Madukolu v Nkemdilim [1962] SCNLR 341, and Jadcom Ltd v Oguns Electrical [2004] 3 NWLR (Pt. 859) 153. It is a well settled position of the law that to make a person, either natural or legal to be a party to an action, is that he should be bound by the result of the action. A proper party is one who though not interested in the claimant’s claim are made parties for some good reasons. A necessary party is also one whose absence, the proceedings cannot be fairly dealt with See the cases of Green v Green [1987] 18 NSCC (Pt II) 1115; Ifeacho v Inland Med Co. (Nig) Ltd [2000] 1 NWLR (Pt 639) 105. In determining whether or not the 2nd -4th defendants are proper or necessary parties in this suit, the Court will raise the following questions thus;
Is the cause or matter liable to be defeated by a non-joinder?
Is it possible to adjudicate on the cause or matter unless 2nd -4th defendants are added as a defendant?
Are the 2nd -4th defendants persons who should have been joined in the first instance?
Are 2nd -4th defendants persons whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter.
The above questions are expedient in the interest of justice to help determine whether or not to join as plaintiff or defendant anyone who may have a stake in the subject matter of this suit or may be affected by the decision. See the cases of Ibegwura Ordu Azubuike v Peoples Democratic Party &ors LER [2014] SC 476/2012; Anabaraonye v Nwakaihe [1997] 1 SCNJ 161 AT 166; Mobil v L.S.E.P [2002] 12 SCNJ.
In answering the above, it is apposite to say that the defendants contrary to their arguments in the written address at paragraph 3.4 which they argued that the 2nd -4thdefendants are neither Shareholders/members nor Directors of the 1stdefendant and therefore they are improperly and wrongfully sued by the claimants, pleaded by their paragraph 7 of their statement of defence that “…. The 3rd and 4th defendants are directors in the 1st defendant but however state that the 2nd defendant is neither a shareholder nor a director of the 1st defendant.”This means that they agreed with the position of the claimants vide their written address to the extent that the 3rd and 4th defendants are the directing minds of the 1st defendant. It is trite that admitted facts needs no further proof. See the case of Onoba v. Abuja Building Products Ltd & Ors [2014] LPELR-22704 (CA). By paragraph 6 of the claimant’s reply to the defendants’ statement of defence, he averred that the 2nd defendant is a member/Managing Director of the 1st defendant and he did guaranteed on behalf of the 1st defendant the legitimate stay of the 1st claimant in Nigeria with the Immigration Service. This the defendants did not controvert or state anything to the contrary. Thus, it is on this basis that I find that the 2nd- 4th defendants are Directors and staff of the 1st defendant. Now, are the 2nd -4th defendants proper and or necessary parties in this suit? It is settled law that a juristic person (the 1st defendant in this case as seen by Exhibit OM1) includes natural person, human beings; companies incorporated with the Corporate Affairs Commission, Corporation’s sole with perpetual succession; certain incorporated associations are granted the status of law such as Registered Trade Union, partnership and friendly societies/sole proprietary see the cases of PHCN Plc & Anor v A.G Sokoto & Anor [2014] LPELR 23815 CA; Shell Petroleum Development Company & Anor v Daniel Pessu [2014] LPELR 23825 CA. It is obvious that the 1st defendant in this suit is a legal person and a going concern who can sue and be sued as it is vested by law with the toga of a natural person and this it can do without the aid of its directors as upon incorporation, it is a distinct and separate person from those who formed it. In essence the 1st defendant in this suit can be sued Solum without its Directors. However, from a careful examination of the General form of Complaint dated 14th of May, 2018 as well as the statement of facts, it is seen from the Complaint of the claimants that their claims and grievances are against the defendants jointly and severally which they are liable to answer in the course of evaluating this suit. To that extent, it is certain to state that the 2nd -4th defendants are proper parties for the effectual determination of this suit. I so find and hold.
It is the arguments of the defendants that Exhibits F4 – F6 fall within the category of computer generated evidence which can only be admissible in law upon compliance with the provision of Section 84 (1) and (2) of Evidence Act, 2011 and that the claimants did not meet the requirement of the law, they urged the Court to expunge them from the records of this Court. The claimant on the other hand argued that Exhibits F4 & F5 are computer generated evidence and that the condition precedent for their admissibility was met as evidence thereof was led pursuant to paragraph 8 of CW1 additional statement on oath. A perusal of the documents reveal that the Exhibits in question are computer generated. The grouse of the defendants is that it ought to contain statement as provided for in subsection (2) of Section 84 of the Evidence Act. In actual fact, Section 84 requires two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied. I find from paragraph 8 of the 1st claimant’s additional statement on Oath deposed to on the 28th June 2018 that the claimant has complied with the provision of the law regarding computer generated documents. He gave evidence of the fact leading to how those documents were produced and generated, which according to him was vide his HP laptop currently in use and properly in operation. That in law suffices in compliance to Section 84(2) of the Evidence Act 2011. The law is that there is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. This Court is not concerned about the truth of the documentary evidence at this stage, instead, all it requires as a condition for the admissibility of a computer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. All that the claimant needs to show by Section 84(2) of the Evidence Act is that the document was produced by the HP computer when it was in regular use, the information contained in the document was supplied into it; that the computer was operating properly during its regular use and that the information contained in the statement was supplied to the computer in the ordinary course of its normal use. See Brila Energy Ltd v. FRN [2018] LPLER-43926CA; Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 203SC. These documents on record are relevant in that they are the travel documents of the 1st and 2nd claimants which will aid the Court in arriving at a just conclusion in the course of deciding this suit. It is in view of all stated earlier regarding Exhibits F4-F6 that I find and hold that the claimant has satisfied the evidential prove of a computer generated document. I so find and hold.
On issue one, it is the claimants claim that they are entitled to the sum of €80,938 being the outstanding balance of accumulated salary, living expenses and other entitlement owed the claimants as contained in the letter of undertaking dated 14/12/2017. The 1st claimant stated that he was in the services of the 1st defendant from the period of September 2012 to February, 2016 and that he was paid all his salaries and entitlement and the services of the 2nd claimant was requested by the 1st defendant to work for it between the period of August to October, 2015 but was not paid the agreed salary and entitlement to the tune of €2,800 till date. It is also the averment of the 1st claimant that he further worked for the defendants from March, 2016 till December, 2017 and was not paid his salary, living expenses and other entitlement despite repeated demands in the total sum of €80,938. He stated that the indebtedness was admitted in letter of obligation dated 14/12/2017 by the defendants, but he has not been paid till date.
The defendants in response admitted that by the end of February 2016 when the 1st claimant services came to an end, he (the 1st claimant) was paid his full entitlement (salary and travel allowance). They pleaded that the 1st claimant therein pleaded with them to allow him and his son stay in the apartment he occupied for extra three (3) months (from March, 2016 – May 2016) pending when he would depart Nigeria, the request was granted but that the claimants did not leave until December, 2017. They equally denied that they requested the services of the 2nd claimant and that the 2nd claimant never worked for the 1st defendant, he is thus not entitled to any payment from them. They contended that the claimant did not work for the 1st defendant from the March, 2016 and December, 2017. That the letter of obligation mentioned by the 1st claimant never emanated from it as the purported letter of obligation was fraudulently procured by the 1st claimant and not binding on it.
It is important to state that there is no controversy regarding the contractual relationship between the 1st claimant and the defendants, the only area of contradiction is while the defendants contends that the contract had expired, the claimants contends that they worked for the defendants from March 2016 to December, 2017. The defendants equally denied the existence of any contract of employment between the 2nd claimant and the defendants. To the claimants the services of the 2nd claimant was requested by the 1st defendant and to the defendant the 2nd claimant came on a visit on the request of the 1st claimant as the 1st defendant never engaged nor requested the services of the 2nd claimant. The law is certain that he who asserts must prove, this is because the claimant has the onerous duty to prove on a balance of probabilities the basis of his claim failing which the claim sought will fail. See Section 131 of the Evidence Act, 2011 and the cases of Mr Benedict Chidubem Ajuzi v. First Bank Plc [2016] LPELR 40459 CA; Joseph Enugunum & Ors v. Chevron Nigeria Ltd [2014] LPELR 20488 CA; Okubule v. Oyagbola [1990] 4 NWLR (PT. 147) P72. Claimants in prove of their claims tendered Exhibit F6 and a careful examination of the document does not disclose at anywhere that the 2nd claimant had a contract of employment with the 1st defendant. The claimants in this suit did not tender any credible document that is a work permit from the Nigerian Immigration Service or a letter/undertaking disclosing a contractual relationship between the 2nd Claimant and the 1st defendant to evince and support their assertion. The evidence tendered by the claimants aligns with the pleadings of the defendants at paragraph 6 of the defendants’ statement of defence. The 2nd claimant has therefore failed to prove his assertion on the balance of probability that he was in the employment of the 1st defendant for the period of August to October, 2015 for which he is claiming the sum of €2,800 as the purported agreed monthly payment. It is in this regard that I find that the 2nd claimant does not have any contractual relationship with the 1st defendant in this suit and to that extent the claim in the sum of €2,800 monthly between the periods of August to October, 2015 fails.
Now is the 1st claimant entitled to his prayer one, it is the 1st claimant’s claim that the defendants admitted by Exhibit F3 dated 14th of December, 2017 to be obliged and or liable to him in the sum of €80,938. The defendants in denial of this assertion stated vide paragraph 21 of their statement of defence and counter claim that they are not in any way indebted to the claimants in any sum claimed. They also pleaded that the purported letter of obligation mentioned by the claimants did not emanate from them but was produced by the 1st claimant and fraudulently procured by him. The 1st claimant under cross examination admitted that he prepared the letter Exhibit F3 but that same was signed by the 3rd defendant after he has agreed with it, the 1st defendant’s Technical Director and Project Manager. The defendants in this suit have alleged that the exhibit F3 was fraudulently procured. Now, the law is undoubtedly trite that an allegation of fraud like an allegation of crime must be proven beyond reasonable doubt. The defendants in this suit pleaded and particularized the basis of their allegation of fraud but have failed to prove by any dint of evidence and beyond reasonable doubt their assertion of fraud. This is because, “The law requires that fraud must be distinctly alleged, with all necessary particulars and distinctly proved.” Per Nnaemeka – Agu, JSC in Ojiba v. Ojiba (1991) 5 NWLR (pt. 191) 296; the defendants by paragraphs 22 and 23 of their statement of defence and counterclaim, outlined the particulars of the fraud. The pertinent part of which are that the obligation is not on the letter head of the 1st defendant and thus did not emanate from them or endorsed by any of their authorized signatories. In his response learned claimants’ counsel argued that the document exhibit F3 was signed by the 1st claimant on one hand and the 3rd defendant as well as DW1 on the other hand. He referred the Court to exhibits OM5 and OM6 respectively to confirm the signature of both representatives of the 1st defendant, which the law permits Courts to do in the circumstance. According to the claimants, the signature of the 3rd defendant who is the Technical Director of the Company is the same as the one he signed on exhibit F3. Ditto the signature of DW1 on exhibit F3 is the same as the one on his sworn deposition. The law by Section 101(1) of the Evidence Act, 2011, empowers the Court to ascertain whether a signature, Seal or writing is by a person for whom it purports to have been written or made may be compared with any admitted signature to have been made by that same person. I have carefully examined the signatures on exhibit F3, vis a vis exhibits OM5, OM6 and DW1 written statement on oath dated 21st of June, 2018 as the law allows me to do. I find that exhibit F3 is a type written document, titled “G.S.I.(GRUPO SYSTEMSO INTERNATIONAL) OBLIGATION TO JUAN CANTALAPIEDRA FERNANDEZ” It is said to be a confirmation that the 1st defendant owes the 1st claimant salary, living expenses and other extras. The items are listed in the documents. I observed that some of the items listed were checked and some were refused. Some figures were also observed to have been written in blue ink. I also found that there are two signatures and dates on the document. An indepth examination of the signatures evince that the two signatures are similar in all material form as the one signed by the 3rd defendant Adam Z. Chandy, the Technical Director of the 1st defendant on exhibits OM5 and OM6 respectively. DW equally confirmed under cross examination that the signatures on exhibits OM5 and OM6 which are the same with the one on exhibit F3 are that of the 3rd defendant. I therefore, refuse to agree with the contention of the learned defence counsel that exhibit F3 is an unsigned document. A signature authenticates a document.
I equally noted that the signature of DW on his sworn depositions is similar to the one signed on exhibit F3. Would it then be right to find that exhibit F3 is the 1st defendant’s document or was executed on behalf of the 1st defendant by its authorized officers? An unequivocal answer to this question is in the affirmative. This is in view of the fact that exhibits OM5 and OM6 were frontloaded by the defendants together with their defence, they however, as rightly observed by the claimants, failed or deliberately refused to tender same having realized that if they did, it would be unfavorable to their case. See Section 167(1) (d) of the Evidence Act, 2011. I do not believe DW’s testimony on record when he stated that work was completed on the site in February, 2016 and all the staff were laid off including the 1st claimant and that the project was commissioned in February, 2017. This is because for a project who was said to have been completed in 2016 to be commissioned exactly after one year, there would be some technical requirements to keep the structure and all the electrical or cooling system in a working condition prior to the date of commissioning. The import of which is that the technical expertise of the 1st claimant would have been required uptill the date of commissioning of the project, i.e. the Dome in 2017. I discountenance the defendants’ contention that the document did not emanate from them as they have failed to prove beyond all reasonable doubt that the document was obtained by fraud. Consequently, I find that the 1st claimant has been able to evince that the document was executed by authorized agents of the 1st defendant, who made an obligation to pay the 1st claimant salary and living expenses between the period of 2016 and 2017 when the project was commissioned. I so find and hold.
Now, are the defendants liable to the claimants in the sum claimed? The claimants have claimed the sum of €2794 as the total sum of materials collected by the 1st defendant, the sum of €35000, €42,000 euros as salary for the period of March, 2016- December, 2016 and January- December, 2017. He also claims the sum of N1, 105,015 as expenses food and material (House and Events Centre). The defendants denied this and stated that all the materials used in the construction of the Dome project were purchased and procured by the 1st defendant and equally stated that its contract with the 1st claimant ended in February, 2016 and hence not entitled to the sum claimed. The 1st claimant in this suit have placed a heavy reliance on Exhibit F3 as the basis of his claim. The claimant under oath stated that he prepared the document and gave same to the 3rd defendant (The technical Director of the 1st defendant) who signed same. I have held that in deed the Technical Director and DW, who is the Admin Officer of the 1st defendant executed the document on behalf of the 1st defendant. It is trite that the action of an agent of a disclosed principal is binding on the principal. Ashibuogwu v The A.G Bendel State &Anor [1988] NWLR (Pt. 69) 139; [1988] 1 SC 248; UBA Plc v Ogochukwu [2014] LPELR 24267 CA. It is obvious from all the reasoning above that the defendants have woefully failed to discharge the burden of proving that the document was not executed by them. They equally failed to substantiate their assertion that the claimant’s contract ended in February, 2016, I have stated earlier that he who asserts must prove same. The defendants in this cause have failed to adequately corroborate their assertion in this regard. They equally alleged that the 1st claimant later worked for one Premier timber Company and not with the 1st defendant during the period under contention, but failed to canvass any evidence to substantiate their claim. Also exhibit F4 reveals that the 1st claimant booked a travel document from Nigeria to Casablanca on the 21st November, 2017 and to travel on the 15th of December, 2017. The 1st defendant’s admission of the fact that 1st claimant stayed in its 5 Bedroom apartment between June 2016 and December, 2017 substantiate 1st claimant’s assertion that he worked for the 1st defendant during the period under consideration. All this goes to show that the 1st claimant worked with the defendants till December, 2017, and that entitles him to the sum claimed. It is noteworthy that the claimant’s claims are in the realm of special damages. Such claims makes it subject to fulfilment of conditions for award of special damages. It is a well-established principle of law that special damages claimed by a party must be strictly proved by qualitative and credible evidence. See Dumez v. Ogboli (1972) 3 SC 196 and Agunwa v. Onukwue (1962) 1 All NLR 537. Whenever special damages are claimed, the party so claiming has an uphill task of a strict proof. In effect the rule requires anyone asking for special damages to prove strictly that he suffered such special damages as he claimed. Thus, the claimant should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to an award under that head. The general law of evidence as to proof by preponderance in civil cases operates in discharging such burden of proof. The 1st claimant has particularized his claims and as I stated above in this judgment, there are some of the claims which were checked and some crossed. The reasonable inference that could be made thereon is that, the defendants only agree to pay the items checked while it refused to pay the one unchecked/asterisk. They are the sum of €2794 as the total sum of materials collected by the 1st defendant, the sum of €35,000, 42,000 euros as salary for the period of March, 2016- December, 2016 and January- December, 2017 total of the checked items is the sum of €79,794.00. I need to state that the 2nd claimant failed to canvass evidence in proof of his engagement by the 1st defendant. It is in the light of this that I discountenance with his claim. I find from all the above reasoning that the 1st claimant has been able to proof on the balance of probabilities his special claim for the sum of €79,794.00. Accordingly, I resolve this issue in favour of the claimant and award the sum of €79,794.00 to the 1st claimant.
It is the claimants claim that they are entitled to €20,000 as general damages.I have earlier granted the claims of the claimant in the sum of the sum of 35000 euros, 42,000 euros in this suit and the law frowns at double compensation in award of damages to a successful litigant. It is on this basis that I find that claimant’s claims for general damage fails.
Claimant also claims 10% per annum interest on the judgment sum until same is fully liquidated. It is trite that post-judgment interest is awarded where there is power conferred by statute on the Court to do so in exercise of Court’s discretion and it is meant to commence from the date of judgment until whole liquidation. By Order 47 Rule 7 of National Industrial Court of Nigeria 2017 which provides that this Court may at time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. It is in view of this that all judgment sums is to be paid within thirty (30) days failure upon which attracts 10% annual interest.
On issue two, it is the counter claim of the defendants/counterclaimant that they are entitled to the sum of N1, 625,000.00 (One Million, Six Hundred and Twenty Five Thousand Naira only) being the money accruable to the 1st defendant/counter-claimant as rent/mense profit payable by the 1stclaimant between June, 2016 and December, 2017, the period when the 1st claimant occupied 1st defendant’s 5 bedroom Duplex apartment at Akure, Ondo State. It is their assertion that at the end of February, 2016 when the 1stclaimant’s job with the defendants came to an end, he pleaded with the 1stdefendant to allow him and his son stay in the apartment he occupied for extra three (3) months (from March, 2016 – May 2016) pending when he would depart Nigeria. That he stated that he would be paying the rent of the apartment beyond the period he was allowed but never did so until he left in December, 2017. The claimants/defendant to the counterclaim have denied liability to this claim that they are not indebted to the defendants in any sum in rent as he was gratuitously given apartment where he lived with 2nd defendant’s brothers and the Chief Security Officer of the 1st defendant. He equally challenged the jurisdiction of this Court to determine the counterclaim of the defendants as it lacks the requisite jurisdiction to determine landlord and tenant matter. It is trite that the issue of jurisdiction goes to the root of the competence of the Court with respect to adjudication of matters. A Court of law must be competent to entertain the issue before it when by Madukolu v. Nkemdilim, Supra, the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent, to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See also Umoh & Anor v. Hon. Aniekan Akpan & ors[2011] LPELR, 5045.
The claimants have challenged the competence of this Court positing that this Court lacks the requisite jurisdiction to entertain the counterclaim. A careful examination of the provisions of Section 254(C) (1) (a) of the 1999 Constitution (Third alteration Act), 2010 as amended vests jurisdiction on the National Industrial Court to the Exclusion of any other court in matters relating to labour, employment disputes arising from payment or non-payment of salaries, wages pensions, gratuities, allowances, benefits and any other entitlement of any employee. (Underline mine). It is interesting to note that the defendants’ counterclaimants are alleging that the 1st claimant was no longer in their employment but pleaded to stay in their apartment with an agreement that he would pay rent. Now, this has obviously taken this claim out of the realm of employment or in relation to or incidental to employment. According to the defendants the sum claim is for rent/mesne profit for the period the 1st claimant occupied the 1st defendant’s 5 Bedroom apartment. It is Therefore apparent from the defendants claim for rent/mesne profit which is strictly claims for rents allegedly accruable to be paid by the 1st claimant outside of his relationship with them cannot be entertained by this Court. It is in this light that I find that this Court has no requisite power/jurisdiction to entertain this counterclaims. I so hold.
Assuming but not conceding to the fact that the issue in question arose out of a contract of employment relationship between the 1st claimant and the defendants in that they alleged that the claimants stayed in their apartment and agreed to pay rent this is in relation to his employment relationship between the parties, this Court will of course has the power to entertain this claim. Now, has the defendants/ counterclaimants proven this claim as to entitle them to same? The defendants in this suit have argued that their contract with the claimant ended in February, 2016. The claimant on the other hand stated under cross-examination that the 1st defendant told him in December, 2017 that his services were no longer needed. I have stated supra that he who asserts a fact must prove the existence of such a fact. There is nothing evincing the fact that 1stclaimant’s contract ended in February, 2016, there is equally nothing on record evincing the fact that the 1st claimant pleaded with the defendants to pay the rent in the house which he occupied during the pendency of his employment to entitled the defendants to this claim. It is equally trite that the failure to support pleadings with evidence goes to no issue as averments in pleadings are facts as perceived by the party relying on them. There must be oral or /and documentary evidence to show that the facts pleaded are true. Consequently, pleadings without evidence to support it are worthless. See the cases of Magnus & Anor v Okpoto &ors [2018] LPELR 45618 CA; Ugwuani v Okeke & Anor [2017] LPELR 42735 CA; FCMB v Registered Trustee of Moses Salihu ABU Foundation [2018] LPELR 45160 CA. There is no tenancy agreement between the duo to evince that the 1st claimant is indebted to it in the sum claimed. It is therefore on this basis that I find and hold that the failure of the defendants/counterclaimants to adduce real evidence to show the fact that the 1st claimant is indebted to them in the sum ofN1,625,000.00 (One Million, Six Hundred and Twenty Five Thousand Naira only) being the money accruable to the 1st defendant/counter-claimant as rent/mense profit payable by the 1st claimant between June, 2016 and December, 2017 goes to no issue and thus fails.
On the claim of general damages in the sum of N5, 000,000 (Five Million Naira), General damages is only awarded in respect of pecuniary loss which has been sustained .It is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages, a claimant for general damages does not need to specifically plead and specially prove it by evidence. It is trite that apart from damages naturally resulting from a breach, no other form of general damages can be contemplated see the case of Nigeria Produce Marketing Board v. Adewunmi [1972] All NLR (Pt.11) 433, Gari v. Seirafia (big) Ltd [2008] 2 NWLR (Pt 1070) 1 at P.22, Para C, UBN Plc v. Ajabule [2011] 18 NWLR (Pt 1278) 152. The Apex Court in Hon. Nze Herbert Osuji & Anor v. Anthony Isiocha [1989] 3 NWLR(Pt. 111) 623 at 636 wherein the Court held “ On the other hand, the quantum of general damages need not be pleaded and proved; for it is the loss which flows naturally from the defendant’s act and it is generally presumed by law. The Defendants/counterclaimants has not established vide credible evidence any breach on the part of the claimant/defendant to counterclaim to be so entitled. It is upon this basis that I find that defendants/counterclaimants claim for damages fail.
The defendants/counterclaimants are also seeking for an award for the payment of the sum of N1.5m as cost of litigation. Authorities abound that the award of cost is entirely at the discretion of the Court, and that costs follow the event of litigation. Therefore a successful party is entitled to costs unless there are special reasons why he should be deprived of such entitlement. See NNPC VS. CLIFCO (NIG) LTD (2011) 10 NWLR (PT. 255) 209. The defendants/counterclaimants are to show this Court that they are entitle to costs of litigation in the circumstances of this case. This is in view of the trite position of the law captured supra, that it is a successful party that is entitled to costs if any. The defendants/counterclaimants claims have failed. It does goes without saying that their claim for N1,5M as costs of litigation cannot be sustained and thus discountenanced.
In conclusion, it is obvious that the claimant’s claims succeed in part and the counterclaim of the defendants fails in its entirety. For avoidance of doubt, I make the following declarations and orders.
That the 2nd -4th defendants are proper parties for the effectual determination of this suit.
That the 2nd claimant does not have any contractual relationship with the 1st defendant in this suit.
That the 2nd claimant claim in the sum of €2,800 monthly between the periods of August to October, 2015 fails.
That claimant is entitled to be paid the sum of €79,794.00 by the defendants.
That the counterclaim of the defendants fails.
That judgment sum is to be paid within 30 days of this judgment failing which it is to attract 10% interest per annum.
I make no award as to damages.
I make no award as to costs.
Judgment is accordingly entered
Hon. Justice Oyewumi O. O
Presiding Judge
