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National Industrial Court

Mr: Adedeji Rotimi -VS- Superior Pharmaceutical Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP:  HON. JUSTICE A. A. ADEWEMIMO

DATED: 17TH FEBRUARY 2020

SUIT NO.:  NICN/AK/62/2018

BETWEEN

  1. ADEDEJI ROTIMI ADEBAYO             …………  CLAIMANT

AND

SUPERIOR PHARMACEUTICAL LTD                         ……….  DEFENDANT

REPRESENTATION:

Henry O. Ubogu Esq. for the claimant

Olumide Ogidan Esq. for the defendant

JUDGMENT

The claimant commenced this action by a Complaint filed before this court on the 1st November, 2018 claiming against the Defendant as follows:

  1. A DECLARATION that the continuous refusal of the defendant to release all the claimant’s under listed original certificates is illegal after he has been cleared by the defendant when his appointment was terminated illegally.
  2. The Claimant’s Senior Secondary School Certificate with Candidate number 5091801169 and certificate number 3261934.
  3. The Claimant’s Higher National Diploma Certificate diploma awarded by the Chemical Engineering Department of the Federal Polytechnic, Bida issued in October 2001.

iii.   The claimant’s Post Graduate Diploma Certificate in Management Information Technology awarded by the Post Graduate School of Abubakar Tafawa Balewa University, Bauchi dated 21st of June, 2013.

  1. The National Youth Service Corp Certificate of the Claimant dated 2nd of March, 2014.
  2. An Order directing the defendant to release the original certificates of the claimant in their possession.
  3. An Order directing the defendant to pay the claimant the following commission stated below:

 

  1. 2% of the sale of Two Million Three Hundred and Fifteen Thousand Eight Hundred and Fifty-Five Naira only (N2,315,855.00) by Lilian Ibe which is Forty Six Thousand Three Hundred and Seventeen Naira Twelve Kobo (N46,317.12)
  2. 4% Commission of the claimant’s sale of One Million Four Hundred and Thirty Three Thousand Five Hundred and Fifty Naira Only (N1,433,555.00) which is Fifty-Seven Thousand Three Hundred and Forty Two Naira Only (N57,342.00).

iii.   2% sale of One Million Six Hundred and Sixty Thousand Nine Hundred and Forty Naira Zero Kobo (N1,660,940.00) by Mr Olorunfemi David which is Thirty-Three Thousand Two Hundred and Eighteen Naira Zero kobo (N33,218.00).

  1. 2% Sale of One Million Three Hundred and Twenty-four Thousand Six hundred and Fifty Naira Zero kobo (N1,324,650.00) by Mr Ojo Damilola which is Twenty-Six Thousand Four Hundred and Ninety-Three Thousand Naira Zero Kobo (N26,493.00)
  2. 2% Sale of the sum of One Million Two Thousand and five hundred and Fifty Naira Zero kobo (N1,002,550.00) by Mr Igunnu Rotimi which is Twenty Thousand fifty One Naira only (N20,051.00) the total commission of the claimant is entitled to is One Million Eight Hundred and Thirty Four Thousand Twenty One Naira Ninety two kobo (N1,834,021.92).
  3. AN ORDER compelling the defendant to pay to the claimant the sum of Ten

Million Naira (N10,000,000.00) only as Special damages for wrongful

withholding the salaries, commission and original certificates of the

claimant thereby causing financial and emotional anguish to the claimant.

  1. AN ORDER compelling the defendant to pay the claimant the sum of One

million Naira only (N1,000,000.00) as general damages respectively as a result

of untold hardship, loss, pain and distress the claimant underwent as a result of being denied opportunities of working in organization of his dream.

  1. The sum of One Million Naira only (N1,000,000.00) as cost of this action.

The claimant filed along with the complaint all other accompanying processes, i.e. the Statement of facts, Statement on Oath, list of witnesses and documents to be relied on.

The claimant’s case is that he was employed by the defendant on the 1st of June, 2015 as an Area Sales Manager and was placed on the following remuneration:

Basic Salary – N1,440,000.00 per annum

Fuel/Transport Allowance – N360,000.00 per annum

Phone and Data Allowance   – N60,000.00 per annum

2% (two per cent commission) of collection Sale Representatives

4% (four per cent) in the claimant’s personal sale to Hospital and Pharmacists).

He stated that his annual salary excluded expenses such as Hotel accommodation, Registration with institution and cost of maintaining his official car. He added that throughout the period of his employment, he was not paid the 2% of sales made by representatives under him or the 4% of his personal sales.  He also averred that as the defendant’s Area Manager, he was based in Abuja to oversee the activities of the sales team in Abuja, Kaduna, Jos and Sokoto, all headed by different sales representatives. The claimant averred that It was stated in his letter of appointment that his employment can be terminated by a notice of two weeks in writing during the probation period and one month’s notice after the probation period or salary in lieu in both instances. The claimant as a pre-condition to the employment was made to submit the original copies of his educational and NYSC certificates on the understanding that the certificates will be released to him within seven days after the end of the employment relationship. The claimant’s appointment was later terminated vide a letter dated 16th June, 2016 and with immediate effect, and he proceeded to clear himself. The defendant however refused to return his certificates thereafter and his salary for 1st June, 2016 to 19th of June, 2016 was not paid. This state of affairs he averred, prevented him from securing many jobs, that led to resultant hardship and suffering.

Whereof he claims against the defendant as aforestated.

On the 10th December, 2018, the defendant filed a Memorandum of Appearance, Statement of Defence and Counter- Claim with all other accompanying processes, dated 7th December, 2018.

The defendant denied all material allegations in the statement of facts and averred that the claimant was on probationary appointment subject to confirmation upon satisfactory performance at the time his appointment was terminated by the defendant. The defendant further averred that the termination of the claimant’s appointment was due to failure to adhere to the company’s policy. The defendant further pleaded that the claimant’s annual emolument is subject to terms and conditions stated in the offer of appointment and other documents executed by him. It was further averred that the contract of employment of the claimant includes the following; the Company Policy, Addendum to the Offer of Appointment, Incentive Package for Area Sales Managers (ASM) etc. The incentive package however becomes payable upon the remittance of sales to the company promptly and timeously, and they were paid by way of stocks at the value of the commission earned by the Sales Manager within a specified duration. Furthermore, failure to adhere to the condition stated above will result in the loss of the incentive package, and since the claimant did not fulfil the condition, he was not entitled to the payment of same.

The defendant pleaded that the claimant was issued several notices and warnings vide several e-mail correspondences to reconcile his account and yet failed to respond prior to the termination of his appointment. It was also contended that the claimant voluntarily surrendered his certificates as a form of collateral and precondition for his employment and the condition for the return of the certificates are stated in the addendum to the contract of employment.

COUNTER CLAIM

The defendant averred that the claimant is indebted to the defendant to the tune of N564,750.00 (Five Hundred and Sixty-Four Thousand, Seven Hundred and Fifty Naira) which the defendant is claiming by way of counter-claim.

The defendant finally averred that this suit is frivolous, gold-digging, vexatious and an abuse of court process which should be dismissed with substantial cost.

The defendant by its counter-claim also sought the following reliefs against the claimant:

  1. AN ORDER directing the defendant to pay the counter-claimant the sum of N546,750.00 (Five Hundred and Forty-Six Thousand Seven Hundred and Fifty Naira) being amount owed the counter-claimant by the defendant.
  2. AN ORDER directing the defendant to pay the counter-claimant the sum of N27,000.00 (Twenty-Seven Thousand Naira) being cost of repairs for the damaged bumper of the car.
  3. AN ORDER directing the defendant to reconcile his account with the Operations manager of the counter-claimant as full and final condition for termination of appointment with the counter-claimant.
  4. AN ORDER mandating the defendant to pay the counter-claimant the sum of N1,000,000.00 (One Million Naira) as general damages for the embarrassment, hardship and stress the counter-claimant underwent in defending this action.

The claimant in his reply filed on 20th February, 2019 denied all allegations of facts in the statement of defence. In his response, the claimant averred that the mails received titled “Belt Tightening” and “Urgent Action needed on Collection” did not contain notices to terminate the claimant’s appointment, and there was no time he was given query for performing below expectation by the defendant.

The claimant maintained that the defendant always send the claimant’s statement of account through their Operation Manager either on a weekly or monthly basis and the last statement of account which was sent to the claimant on the 7th of June, 2016, differs from the averments in the statement of defence.

The claimant denied owing the defendant the sum of N2,727,115.00 (Two Million Seven Hundred and Twenty-Seven Thousand One Hundred and Fifteen Naira) and averred that every representative under the claimant is responsible for their unremitted sales individually.  He stated further that each representative has his/her own guarantor and submitted their certificates with the defendant as collateral.

He denied ever absconding as alleged, and asserted that after his employment was terminated, he still retrieved the unsold products of the defendant and returned them to their warehouse where they were received by a staff of the company.

The claimant also averred that some expenses which he incurred in the cause of his official duties which are usually used to offset debts owed to the company was sent by email to the operational manager of the defendant, to which he responded. The claimant alleged that his May 2016 salary of N100,000.00 (One Hundred Thousand Naira) was used to offset an account, while he returned the unsold products to the defendant’s warehouse. According to him, all the above information was sent by mail to the defendant’s operation manager as part of the account reconciliation.

He maintained that he is not owing the defendant the sum of N591,750.00 (Five Hundred and Ninety-One Thousand Seven Hundred and Fifty Naira Only) and if he was owing, this would have reflected in his statement of account.

The claimant averred that he handed over his former official vehicle to the operation manager of the defendant in good condition and was not aware of any expenses incurred on the vehicle by the defendant thereafter. On the alleged indebtedness on Zagbayi account, he averred that his salary was used to liquidate the said account and asserted that the defendant always deducts the value of any of their products that is unremitted by representatives from the salary of such a representative, even when the customers were yet to pay.

The claimant maintained that his suit is meritorious and necessary and same should be sustained in the interest of justice.

The trial in this case commenced on the 20th March, 2019 with the claimant testifying for himself as CW1.  He adopted his sworn affidavit on oath and tendered several documents which were admitted and marked Exhibits RB1 – RB10 (i-vi), he was duly cross-examined.  The claimant thereafter closed his case. The defendant/counter-claimant opened its defence on the same date, 20th March, 2019 with one Mr Cyprian Okeke testifying as DW1.  He adopted his written statement on oath and was cross-examined.  He tendered several documents marked as Exhibits SP1 – SP3 and was cross-examined.  The defence closed its case and the case was adjourned for adoption of final written addresses.  The written addresses were adopted by both counsel on the 18th November, 2019.

The defendant’s final written address dated 10th of April, 2019, was adopted by Olumide Ogidan, Esq of counsel for the defendant, he formulated two issues for determination in the address to wit:

  1. Whether going by the pleadings and evidence of the claimant, the claimant is entitled to the reliefs sought.
  2. Whether the claimant has a defense to the counter-claim of the defendant having not given any evidence to contradict same.

On issue one, learned counsel submitted that the claimant has not fulfilled the condition precedent to be entitled to the reliefs sought in this suit.  He referred to the Addendum to the Letter of Employment duly executed by the claimant, and pointed out that the claimant willingly deposited his certificates as part of the conditions for employment and that he admitted same under cross examination.

Learned counsel added that one of the grounds for the release of the claimant’s certificates is that he must not be indebted to the defendant and since the claimant is in default of this condition, the defendant is entitled to hold on to the certificates.  The defence counsel submitted that the claimant is indebted to the defendant in the sum of N591,750.00 (Five Hundred and Ninety-One Thousand Seven Hundred and Fifty Naira) and this was not controverted. The defence counsel added that the Addendum to the Letter of Appointment forms part of a contract of employment which is binding on both parties, and cited Ngun v Mobil Producing Nigeria Unlimited (2013) LPELR-2019 7(CA) and Ideh v. Unilorin (1994) LPELR – 14640 (CA). He argued further that until the claimant fulfills the condition stated in the addendum to the contract of employment, he cannot be granted the reliefs in this suit. He pointed out that the claimant’s hand is soiled and as such, he does not qualify to enjoy the covering of the Court in this circumstance, he went on to cite Seed Vest Microfinance Bank PLC & Anor v. Ogunoina & ors (2016) LPELR-41346 (CA).

He argued further that the claimant was given notice to reconcile his account but he refused and or neglected to do same, from EXHIBIT SP4 (the record of this court however does not contain any document marked as Exhibit SP4). The defence counsel pointed out that the claimant also admitted under cross- examination that he did not benefit from the remittance of his sales representatives, because the sales were not turned in at the expected period specified by the company. He therefore submitted that in this circumstance admitted facts need no further proof and cited Okonji v. Omuni (2007) LPELR-8734 (CA); Onyenwe & Anor v. Anaejionu (2014) LPELR-22495 (CA).

The defence counsel submitted that the claimant has failed woefully to discharge the burden of proof on the issues raised in this suit, citing Honika Sawmill (Nig) Ltd v. Holl (1994) LPELR-1374 (SC). He further contended that the claimant has failed to establish that he has settled his account with the defendant after his appointment was terminated to warrant the release of his Certificates and urged the Court to so hold, citing Agbaje v. Fashola (2008) 6NWLR (PT. 1082) 90, 141, Parag G-H.

On issue two, counsel submitted that a counter- claim is a separate and independent action distinct from the original claim or suit, citing Biko & Anor v. Amaechi & ors (2018) LPELR – 45069 (CA). He referred to the counter-claim of the defendant and pointed out that DW1 adopted his witness statement on oath in evidence in support of the counter-claim and tendered four(sic) documents while the claimant filed a Reply to Statement of Defence and abandoned, refused and or neglected to file a reply to the Counter-claim. He argued that the claimant did not lead evidence in response to the facts contained in the Statement of Defence and Counter- claim as there was no deposition attached to the reply to the Statement of Defence.

The defendant’s counsel surmised that the claimant has abandoned his reply to the Statement of Defence as there is no evidence led on same and cited Aregbesola & ors v. Oyinlola & ors (2010) LPELR -3805 (CA), and Hungwa v. Owurkwa (2011) LPELR- 3754 (CA) and several other cases. He therefore urged the court to hold that there is no defence to the counter-claim and the claimant is deemed to have admitted the facts pleaded and evidence on the counter-claim. He urged the court to resolve this issue in favour of the defendant and grant the prayers in the counter-claimant.

The claimant’s counsel Henry O. Ubogu, Esq filed his final written address on the 20th June, 2019, where he formulated three (3) issues for determination to wit:

 

  1. Whether terminating the appointment of the claimant without giving him two weeks notice was a breach of his contract of employment.
  2. Whether the claimant is entitled to all his claims in this matter.
  3. Whether the defendant is entitled to her counter-claim.

On issue one, the counsel submitted that the latin maxim ‘’perta  sunt servanda’’ which means “he that made an agreement must fulfill the terms of agreement” is applicable to the employment agreement signed by the claimant and the defendant. He pointed out that the contract of employment between the parties provides that the claimant is entitled to two weeks’ notice while he was on probation before his appointment can be terminated, and in the instant case, the appointment of the claimant was terminated without any notice to him.  Counsel cited A.G. BAYELSA Vs. A.G. RIVER STATE (2006) 28 NSCQR 19, R 1 Pg. 21, where the court held that for a cause of action to arise under a contract, there must be a breach by the party in default to kick start the cause of action. The claimant’s counsel submitted that the defendant breached the employment agreement between the parties by terminating his employment without the requisite two weeks’ notice as stated in the letter of employment. He therefore urged the court to hold that the defendant is in breach of the contract of employment in this regard.

On issue two, counsel submitted that despite the fact that the claimant was not giving two weeks’ notice, the claimant still went ahead to clear himself with the defendant, while the defendant refuse to release the original of his certificates in their possession. The claimant’s counsel pointed out that the claimant denied owing the defendant and maintained that the sales representatives working under him had their separate guarantors. The claimant relied on Exhibit RB1 -RB10(i-vi), in support of his case.

Learned counsel pointed out that the defendant admitted being in possession of all the original certificates of the claimant till date, thus the argument of the claimant that he was denied the opportunity of getting jobs elsewhere since his appointment was terminated by the defendant in 2016. Learned Counsel reiterated that when the DW1 was cross-examined, he informed the court that every transaction of the claimant was captured in Exhibit RB10(i-vi). He also referred to the admission of DWI under cross-examination that all the Sales Representatives under the claimant’s supervision had their separate guarantors, and cited Section 27 of the Evidence Act (2011), to support his arguement that evidence procured under cross-examination is admissible, valid and authentic as evidences procured under Examination–In-Chief, he also cited ABDULLAHI HARUNA ESQ Vs. KOGI STATE HOUSE OF ASSEMBLY (2010) 7 NWLR (Pt 1194) 605 (a) 614, and concluded that the claimant is entitled to his claims inthis suit.

On issue three, learned counsel submitted that it is clear from the counter-claim in this suit that same was an afterthought and its intention is to give the claimant a bad name. He maintained that Exhibit RB 10(i-vi) does not reveal that the claimant is owing the defendant, and this was confirmed by DW1 when he stated before this court that every transaction carried out by the claimant while still working for the defendant was captured in his account with the company i.e. Exhibit RB10(i-vi) and that all the Sales Representatives working under the claimant had their separate guarantors.

Learned Counsel relied on the provision of Section 123 of the Evidence Act 2011 and the decision of the court in CBN Vs. Dinner (2010) 17 NWLR (PT 1221) per Lokulo-Shodipo J.CA at page 162 at Paragraphs C-D in submitting that the claimant cannot be held responsible for the unremitted sales of the Sale Representatives under him since he is not their guarantor.

On the contention of the defendant that it spent N27,000.00 (Twenty-Seven Thousand Naira) to fix the former official car of the claimant, claimants counsel responded that this cannot hold, because there was no evidence before the court on how the sum was expended. He argued that even if this is so, the claimant had a guarantor and the defendant could have recovered the indebtedness from the guarantor if indeed the claimant was owing the company.

The claimant’s counsel pointed out that even though the claimant wrote to demand for his certificates from the defendant, the defendant refused to respond to same. He added that the defendant having failed to establish its defence, is not entitled to its counter-claim.

Finally, the counsel urged the court to discountenance the argument of the defendant for lack of substance, and grant the reliefs sought by the claimant.

 

I have gone through all processes filed before this court in line with evidence adduced and arguments on both sides and I have come up with the following issues for determination in this suit:

1)   Whether or not the claimant is entitled to the reliefs sought

2)   Whether or not the defendant is entitled to the Counter- Claim.

It is important at this stage to comment on the first issue captured in the claimant’s final address, which is whether the termination of the claimant’s employment was in breach of the contract of employment. This was raised by the claimant’s counsel in his final address in this suit. The claimant’s counsel raised the issue in his address, but on looking through the reliefs of the claimant, I cannot find any relief that specifically captured this issue before this court, it is elementary that every relief must be clear, precise and quantifiable, it must be devoid of speculation, see Zenith Bank Plc. Bankolans Invstment Limited &Anor. (2011) LPELR-9064(CA).  In other words, the court will not grant a claim that is not captured in the reliefs see also Aisha Jumai Alahassan &Anor v Mr. Dairus Dickson Ishaku & Ors. I find therefore that, whether or not the termination of the claimant’s employment was in breach of the contract of employment will go to no issue, as same is unsupported by the reliefs, thus it will be a futile academic exercise for this Court to delve into consideration of same. This position is further reinforced by the position of the law that the court is not father Christmas that will grant a relief not sought by a party, see Simeon v College of Education Ekiadolor Benin (2014) LPELR-23320(CA). It is premised on the above that I hereby discountenance the first issue captured in the claimant’s address. I so hold.

In dealing with the first issue formulated by me, I averted my mind to the trite position of the law that he who asserts must prove and in an action for wrongful termination, the onus rests on the employee to plead i) the contract of employment; and ii) the way it has been breached by the defendant. See Section Sections 135,136, and 137(1) of the Evidence Act, 2011 and the case of Shell Petroleum Development Company & Anor. v Daniel Pessu (2014) LPELR-23325(CA).

The claimant in discharge of the evidential burden placed on him by law, tendered Exhibits RB1 (offer of probationary employment) and RB3 (addendum to offer of employment). It is trite law that a contract of employment is the foundation of all master/servant relationships and the court in deciding the rights and obligations of parties thereunder shall restrict itself to the contract of employment between the parties. See Engineer Ndiuwem Benjamin Akpabot v Power Holding Company of Nigeria Plc. & Ors (2013) LPELR-20697(CA).

The claimant by his reliefs is seeking an order of court for the defendant to release all his certificates that are in possession of the defendant. The claimant therefore retains the evidential burden to proof his case in the first instance before the burden will shift to the defendant. This means that, the claimant is saddled with the task of proving before this court that he is entitled to the reliefs sought. The claimant in pursuance of this, pleaded and led evidence that he was employed by the defendant, and he deposited his original certificates i.e. Senior Secondary School Certificate, Higher National Diploma in Chemical Engineering, Post Graduate diploma Certificate, National Youth Service Certificate from June, 2016, with the defendant, as a precondition to his employment with the defendant. He also led evidence that his employment was terminated effectively on the 19th of June, 2016, but the defendant thereafter refused to release his certificates to him despite a formal demand by him for same. The defendant on the other hand, pleaded and led evidence that the claimant is indebted to it, thus its refusal to release the claimant’s certificate is justified in line with the provisions of Exhibit RB3 (Addendum to Offer of Employment) which forms part of the contract of employment between the parties. The claimant however denied this assertion by pleading that he is not indebted to the defendant.

It is not in doubt that it is in the nature of this court to respect the sanctity of agreements, thus the Court is bound to interpret the terms of a contract to give effect to the wishes of the parties as expressed in an Agreement. See Adiele Ihunwo v Johnson Ihunwo & Ors. (2013) LPELR-20084(SC). The provisions of Exhibit RB3 (Addendum to Offer of Employment), reveals that the claimant is expected to deposit his certificates to the defendant on the condition that the certificates will be returned to him upon termination of his employment provided that:

  1. a)He is not indebted to the defendant
  2. b)He must have returned all of the defendant’s properties in his possession
  3. c)Returns the official car given to him in the same condition it was given excluding normal wear and tear.

This is the provision this court is called upon to examine in reaching its decision. After a thorough perusal of the contract of employment and the evidence adduced in this case, I find that the action of the defendant in imputing a condition in the contract of employment that violates the claimant’s rights to his personal property i.e. his credentials and certificates is improper and odious. Furthermore, using the fact that the claimant voluntarily agreed to the term in question to hold on to his certificates, when there are other means of recovering any indebtedness of the claimant is an unfair labour practice which is unconscionable. The defendant in this case could have gone after the claimant or his guarantors to recover any perceived indebtedness, but elected to hold on to the claimant’s credentials. Although it is on record that the claimant willingly surrendered the credentials to the defendant at the start of the employment relationship, can it be said that the defendant has the right to hold on to same after the termination of the employment? I answer this question in the negative, I find that the same right the defendant has to its official vehicle and the company’s other properties with the claimant, which I will quickly add was surrendered by the claimant after the termination of his employment, so also will the claimant retain to his certificates. The defendant sought to rely on the doctrine of sanctity of a contract, but I want to disagree with the defendant on this, as sanctity of a contract cannot overturn the right to personal property of a party as provided by the CFRN 1999 as amended unless it abides with the law and public policy. I find therefore that Exhibit RB3 is unlawful and unenforceable as it sought to take away the claimant’s right to his personal property which in law cannot be traded off. In addition, the terms contained in Exhibit RB3 is an unfair labour practice, which this court is enjoined to eschew, and all the more unacceptable by reason of the fact that the employment relationship has ceased to exist as in the instant case the claimant’s employment was terminated by the defendant. What then is the need for holding on to the claimant’s source of future income after terminating his employment? I find that he defendant has no justification whatsoever in holding on to the claimant’s certificates as same is unlawful and untenable. Consequently, this relief succeeds, the defendant is hereby ordered to release all the certificates of the claimant in its custody to the claimant within 72 hours of this Judgment. I so hold.

The claimant also sought the payment of commission on sales earned by him and itemized same in his reliefs. These incentives are provided in paragraph 4 of Exhibit RB1, but are subject to a proviso contained in paragraph 5 of the same Exhibit RB1 which reads:

“Note that sales are not complete until collection. Collection of sales will be based on collection of sales and will be given in from of stock which you can resell with any of the company prices you choose.”

This provision clearly establishes that the right to the commissions is not automatic, but subject to collection of sales, whereupon the commission will be paid in stock. The defendant also pleaded and led evidence on the fact that the payment of the commission is time sensitive and all sales not collected on time automatically disqualifies the representative from receiving commission on same. This point was further corroborated by the claimant under cross examination when he admitted that the collections were not made in time. These leads to the inexorable conclusion that the claimant has failed to satisfy this Court that he fulfilled all conditions precedent to his enjoyment of the commission and cannot legitimately claim same. It is premised on the failure of the claimant to establish his entitlement to this relief, that the claim for the commission for sales sought by the claimant fails. I so hold.

On the claim for special damages of N10,000,000 (TEN MILLION NAIRA) for the withholding of salaries, commissions and his certificate by the claimant, it is trite law that special damages are the type which the Court will not infer, they must not only be specifically pleaded, but also be strictly proved. See Mr. Felix Gbenga Afolayan v Alhaji Y.S. Ariyo& Anor. (2014) LPELR-22775(CA). The onus is on the claimant to lead evidence to show his entitlement to the award thereof. However, the claimant in the instant suit failed to provide any evidence to support the sum claimed for special damages. He did not particularize or lead evidence as to how he arrived at the sum claimed, or the special damages for which he sought the relief in this suit. The relief therefore fails as unproven. I so hold.

On the claim for N1M (ONE MILLION NAIRA) general damages, I find the holding of Ogakwu J.C.A in Promasidor (Nig.) Ltd & Anor v Ashikia (SUPRA), very appropriate in this suit, wherein his Lordship held as follows;

 The primary object of an award of damages is to compensate the Claimant for the harm done to him. See B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and AJAYI vs. AKAWA (2018) LPELR (44933) 1 at 28. In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage the loss which flows naturally from the defendant’s act. It does not have to be specifically pleaded. It suffices if it is generally averred. The general damages are presumed to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of exact calculation. It is quantified by relying on what a reasonable man’s judgment would be in the circumstance: ………. It was therefore proper for the lower Court to award the damages for the proven wrong done to the Original Claimant.” 

The law is that an award of general damages lies primarily within the domain of the Court and in the discharge this judicial function, an estimation of the loss suffered by the plaintiff is required to compensate the plaintiff for the loss suffered by him. Needless to state here that this award will flow naturally from the wrong of the defendant. See Chief S.I. Agu v General Oil Limited (2015) LPELR-24613(CA). I find that the probable consequence of the defendant’s action in this suit, is that the claimant’s effort to secure another job without his credentials was greatly hampered, and his source of livelihood was unreasonably taken away. The defendant has led enough evidence to be entitled to an award of general damages for the above stated reasons. Consequently, the claim for general damages in favour of the claimant in the instant suit succeeds and the defendant is hereby ordered to pay to the claimant the sum of N1,000,000 (One Million Naira) in general damages for the unlawful retention of his Certificates. I so hold.

COUNTER-CLAIM

On issue two, the defendant‘s Counter-Claim against the claimant was based on the assertion that the claimant is indebted to the company. I shall state at the risk of sounding repetitious, that a party who wants the court to give judgment in his favor, and upon the existence of a fact is said to bear the evidential burden of proving those facts; in other words, he who asserts must prove. It does not fall on a person who denies the existence of a fact to prove that it does not exist. See Mr. Moses Ageyaye v John Ogbogboyibo & Ors. (2014) LPELR-22610(CA). The burden is therefore on the defendant to prove that the claimant is indebted to it as per the Counter-Claim. The defendant tendered Exhibits SP1-3 to establish its case against the claimant. I find that Exhibit SP3 contains a list of names of sales representatives who are indebted to the defendant, and the claimant’s name was not included. The only nexus between the claimant and Exhibit SP3 is that the people listed therein worked under the supervision of the claimant. This fact is further buttressed by DW1 under cross examination when he stated that the people listed have their own guarantors. I also find that there is nothing before this court to show that the claimant will be responsible for those working under him or liable for their refusal to remit their sales. Including such a term in the contract of employment will be very strange indeed, as the claimant cannot be held responsible for the debts of his fellow employees by virtue of him being their supervisor.

The claimant in the instant case averred the sales owed to the defendant were usually deducted from his salaries before his employment was terminated. This fact was not traversed in any way by the defendant, by way of reply to the counter-claim in any way, thus the facts having not been denied expressly or by implication are deemed admitted. See Omowood Industries Limited v The Registered Trustees of Bible Believers Fellowship Church & Ors. (2014) LPELR-23400(CA), and MTN Communication Limited v Sidney C. Ahmadi Esq. (2012) LPELR-21276(CA). It is the claimant’s averment that every amount he owed to the defendant was deducted from his salaries before his employment was terminated. It is also a fact that the indebtedness of the claimant was never established by the defendant in the evidence adduced at trial, and therefore the burden did not at any point shift to the claimant to prove his innocence. It is the position of the law in this instance that the claimant need not call evidence on an uncontroverted averment, and especially when the party who retains the burden of proof has failed to establish same, see Union Bank of Nigeria Limited v Patrick N. Ajagu (1990) 1NWLR (Pt. 126) and Udeagha & Anor. V Omegara & Ors. (2010) LPELR-3856(CA), thus the contention of the Defendant/Counter-Claimant that the averments of the claimant in his reply to the statement of defence was unsupported by evidence goes to no issue. See Alhaji Aliyu Muhammad Hadeija v Alhaji Bafale Abbas (2016) LPELR-40234(CA).

In addition to the above, the defendant is further claiming a sum of N27,000.00K for damages to the official car allocated and returned by the claimant, and the cost was included in the total claim against the claimant. The defendant/Counter-Claimant pleaded and led evidence that the vehicle was returned with a damaged bumper, while the claimant denied same and maintained in his averment that the car was returned to the defendant in a good condition. This means that issues were joined on this assertion and the defendant again failed to lead evidence to establish its claim. This he ought to have done before the burden can be said to have shifted to the claimant to debunk same. However, the defendant/ counter-claimant failed to proffer any evidence apart from his averment and the evidence of DWI. The cost of repairs to the car was not supported by any documentary evidence such as receipt or evidence of the person who undertook the repairs, and thus the claim was also unproven. Exhibit SP2 only contains what is at best an allegation of damage to the car while Exhibit SP3 which was authored by the defendant, merely listed the claimant’s alleged indebtedness to the defendant, and is not enough to satisfy the standard of proof required in a claim for special damages. It is the position of the law that in a claim for special damages, the claimant i.e. the Defendant/Counter-Claimant in the instant suit, is expected to specifically prove and particularize his claim, See Owena Mass Transportation Coy. Ltd. v Kehinde Imafidon (2011) LPELR-4810(CA).

The defendant however failed to discharge this burden and is consequently not entitled to the reliefs sought in the counter-claim, and same stands unproven and therefore fails. I so hold.

In conclusion, I find that the claimant’s action succeeds in part and for the avoidance of doubt, I declare and order as follows:

  1. The refusal of the defendant to release to the claimant his original certificates in its custody is unlawful;
  2. The defendant is hereby ordered to release to the claimant within 72 hours, the under listed original certificates:
  3. The Claimant’s Senior Secondary School Certificate with Candidate number 5091801169 and certificate number 3261934.
  4. The Claimant’s Higher National Diploma Certificate diploma awarded by the Chemical Engineering Department of the Federal Polytechnic, Bida issued in October 2001.

iii.   The claimant’s Post Graduate Diploma Certificate in Management Information Technology awarded by the Post Graduate School of Abubakar Tafawa Balewa University, Bauchi dated 21st of June, 2013.

  1. The National Youth Service Corp Certificate of the Claimant dated 2nd of March, 2014.
  2. The defendant is hereby ordered to pay to the claimant the sum of N1,000,000 (One Million Naira) as general damages;
  3. The claim for payment of commissions fail;
  4. All judgment sums awarded in this suit shall be paid within 30 days failure upon which it will attract a 10% interest per annum.

 

A cost of N250,000.00k is hereby awarded against the defendant in this suit.

AND

The Counter-Claim of the defendant is dismissed.

Judgment is accordingly entered.

 

 

Hon. Justice A. A. Adewemimo

Presiding Judge

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