Shehu Mahmud & ORS -VS- Global Energy Fleet Oil and Gas Limited . & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP HON JUSTICE SANUSI KADO

14TH DAY OF JUNE 2019 SUIT NO: NICN/ABJ/210/2017

BETWEEN

SHEHU MAHMUD ………………………………………………………………………… CLAIMANT

SULEIMAN SHEHU

AND

1. GLOBAL ENERGY FLEET OIL AND GAS LIMITED DEFENDANTS

2. NICON LUXURY HOTEL

REPRESENTATION:

Zulkifil Salisu, Esq; Esq; For the Claimants

JUDGMENT.

Vide a general form of complaint dated the 12th day of July 2017 and filed on the same day, the claimant is seeking for:-

Refund of the sum of 3,381,000.00 deducted as car loan deducted from the salary of late Abdullahi Shehu, the car having not supplied by the defendant up to the time they terminated the employment of the said late Abdullahi shehu.

The sum of 500,000.00 being cost of prosecuting this case.

The sum of 500,000.00 as general damages.

The claimants filed along with the general form of complaint statement of facts, witness statement on oath, list of witnesses, list of documents to be relied upon and photocopies of documents to be relied upon at the trial. The defendants with leave of court filed their joint statement of defence. Upon receipt of the defendants’ joint statement of defence, the claimant filed a reply to the joint statement of defence.

The first claimant testified as CW1, for the claimants. The case of the claimants is that they are administrators of the estate of late Abdullahi Shehu, a former member of staff of the defendants who died on the 17/6/2016. According to the claimants late Abdullahi Shehu was employed by the 1st defendant and posted to work at the office of the 2nd defendant until the time when he was disengaged from service via letter of termination dated 29/12/2015. It was averred that during the period late Abdullahi Shehu Served the defendants’ deductions were made from his salaries meant for car loan which was never supplied to him before the termination of his appointment. The total amount deducted from late Abdullahi Shehu’s salaries amounted to N3,381,000.00. It was also averred that several oral and written demands for refund of the deductions made for car loan from the salaries of late Abdullahi Shehu, but the defendants have failed and refused to refund the said amount.

The evidence of CW1, in reply to the defendants’ joint statement of defence is to the effect that contrary to the defendants’ statement of claim, the two defendants are incorporated companies in Nigeria with same connection. It was further stated that late Abdullahi Shehu was employed by the defendant and was paid his pension contribution by the trust fund pension plc. This was confirmed via a letter to the said pension fund administrator dated the 9/02/2017. It was stated that the statement of defense did not materially counter the averment in the statement of facts/material fact.

The claimants urged the court to grant their reliefs sought in their paragraph 17 of the statement of claim.

The claimants also filed an additional deposition on oath deposed to by Suleiman shehu.

THE CASE FOR THE DEFENDANTS

The defendants called one Glory Irononse, Human Resources/Admin Officer of the 2nd defendant, who testified for the defendants as DW1. The 1st defendant denies employing the Late Abdullahi Shehu and posting him to the 2nd defendant. The 2nd defendant denied making deductions from gross salaries of Late Abdullahi Shehu amounting to the sum of N3,81,000.00 or any money whatsoever. The claimants averred that they are not liable to any of the claims or reliefs of the claimants.

DW1, under cross examination stated that she has been in the service of the defendant for two years. She did not receive documents between Abdullahi Shehu and the defendants, until the case came up. She got to know when the matter came up in court. The claimant is claiming he worked with global fleet and he is asking for his entitlement and other benefit. Exhibit CW1 E1 is carrying the name of our employers, but no signature and no stamp. It looks like a pay slip from my employers but it has no signature or stamp. When Exhibit CW1 E1 was issued I was not working with the 2nd defendant. I know Chikeze Nwaagum, he is admin HR Manager. That is his name but I cannot confirm whether this signature is his or not. I don’t know Nko Udo, I know Vitalis Nwakama, he no longer works in our organization he left in 2017. I don’t know Vivian ike.

THE DEFENDANTS SUBMISSION.

The defense counsel filed their final written address on 28/11/2018,the defendants in their address formulated two issues for determination

whether the court ought to expunge or refuse to attach any probative value to Exhibit CWI, E1-66.

Whether the claimant have provided adequate credible evidence to justify their claim.

The defendant were of the firm view that the court ought not to have admitted Exhibit CW1 E1-66, as the document in the opinion of counsel is a computer generated evidence which has to comply with the provision of section 84 of the evidence Act. Counsel submitted that section 84 of the Evidence Act has provided steps to be followed for a computer generated document to be admissible. However, the claimant has failed to follow the said laid down procedure to render exhibit CW1E1-66 admissible in law. It is submitted that the law is trite that where a legislation lays down a procedure for doing a thing, there must be no other method of doing it. On this contention counsel relied on the case of OKEREKE Vs YARADUA (2008) ALL FWLR (Pt.430) 626, (20-08) 5 SCNJ 1, (2008) 4-5 SC (Pt.1) 206, (2008) 12 NWLR (Pt.1100) 95.

Counsel argued that assuming without conceding the said Exhibit CW1 E1-66 cannot be seen as a computer generated evidence, and that it should be treated as a normal document, even though it carries the name of the purported maker, it does not carry the stamp or the signature of the defendant, the implication is clearly stated in IRONKWE Vs U.B.A PLC (2017) ALL FWLR (PT 879)P 650, that an unsigned document is a worthless piece of paper which cannot confer any legal right or benefit on any person who seeks to rely on it. Counsel contended unsigned document does not have any probative value as it has no origin in terms of its maker. On this view counsel placed reliance on the case of JINADU V ESURUMOBI-ARO (2009) ALL FWLR (PT.483) 1231Also BELLO Vs SANDA (2011) LPELR (3795). Counsel contended that exhibit CW1E1-66 was inadvertently wrongly admitted and same be expunged or be discountenanced.

ISSUE TWO

In arguing issue two, counsel submitted that the claimants have failed to provide sufficient materials before the court to justify their claims. There is nothing in the claimants pleadings and evidence stating how the claimant arrived at the sum of N3,381,000.00 the refund of which they are claiming as well as the N500,000.00 each as cost of the litigation and general damages. Counsel contended that even though the claimants have alleged that deductions were made on the salary of the deceased. The defendants have specifically deny such deductions thus raising inexorable need for the claimants to strongly prove as pleaded albeit there is no averment on their pleadings to show how the figures were arrived at. Counsel cited the case of ADISA Vs STATE (1991) 1NWLR (Pt.168) 490 @500, where Tobi, JCA (as he then was) said:

‘‘Judges are not allowed by law to speculate or conjecture on possible facts. They do not have such jurisdiction. That is wrong. The only jurisdiction they have is to make use of the cold facts of the case as presented by the parties in open court, and use them. They cannot do more. They cannot do less. Such is the job of the judge. Afteral, a judge is not a metaphysician. He is not a soothsayer.’’

It is also the submission of counsel that the case of GIWA-OSAGIE V GIWA-OSAGIE (2009) LPELR-4533, has decided that evidence in respect of which issues have been joined is such as leaves the court in doubt that the court is led to speculate as to more probable position, then the party who has the burden of proof has failed to discharge the evidential burden on him.

In concluding his submission counsel contended that the claimants have failed to justify their claims and urged the court to dismiss the suit with substantial costs.

THE SUBMISSION OF THE CLAIMANT.

The claimants filed their final written address on 30/01/19. The claimant’s counsel formulated a sole issue for termination;

Whether the claimant have established their case by lawful evidence.

Counsel for the claimants began his argument by submitting that the claimants’ duty is to establish their case by preponderance of evidence in line with section 134 of the Evidence Act. Counsel also submitted that by virtue of section 133 of the Evidence Act the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court will be given if no evidence were produced on either sides. Counsel contented that the claimants have established their claims and the burden has shifted to the defendant to prove otherwise. On this proposition counsel placed reliance on OLLY V TUNJI 2013 13 WRN 59, where it was held that in our adversarial legal system of jurisprudence, once the plaintiff has discharged the onus of first proof of a fact, the onus then shifted on the defendant to rebut also by credible evidence the facts adduced by the plaintiff.

It is the contention of counsel with respect to the pay slips admitted by this court, the defendant is of the view that they are computer generated evidence, my lord we submit that their argument is misconceived as the said pay slip do not amount to an electronic generated evidence for the provision of section 84 of the evidence Act to apply.

In concluding his submission counsel urged the court to grant the claimants’ reliefs in this case.

COURT’S DECISION.

I have carefully perused the processes filed in this suit as well as the final addresses of counsel for both parties. The issues that this court is to resolve is whether by the evidence adduced in this suit the claimants are entitled to the reliefs being sought.

However, before delving into the main issue for determination, I shall first and foremost thrash the issue of admissibility or otherwise of exhibit CW1E1-66, the pay slips relied by the claimants to support their claims before the court.

It is to be noted that on 31/1/18, the counsel for the claimants sought to tender in evidence exhibit CW1E1-66 in evidence. The counsel for the defendants objected to the admissibility of the said document on the ground that the document is a computer generated document which has to comply with the provisions of section 84 of the Evidence Act. In a considered ruling delivered on 13/3/18, the objection of counsel for the defendants to the admissibility of the bundle of document sought to be tendered through CW1 was overruled and the pay slips as bundle of documents were admitted in evidence by the court and same marked as exhibit CW1E1-66. With the ruling of 13/3/18 this court has become functus officio on the issue of admissibility of the said exhibit. In the circumstance I maintained that exhibit CW1E1-66 is not a computer generated evidence that will warrant the application of section 84 of the evidence Act 2011.

However, another dimension has been introduced to the issue of admissibility of exhibit CW1E1-66, counsel for the defendant is now contending that even if the said exhibit is not caught by section 84 of the evidence Act it will still not be admissible on the ground that it is unsigned document which by law has no evidential value and ought to be expunged from the record of the court or be discountenanced. I quite agree with counsel that unsigned document is in law worthless document that cannot be reckoned with. However, it is necessary to stress here that the document which issue of signature is material are those documents that must ordinarily be authenticated by the maker for it to have evidential value. In my view pay slips are documents that are usually issued ordinarily without the maker signing the document. In this respect pay slips are in the category of documents that do not need to be signed before they are admissible in law. If the pay slips tendered by the claimants are being disputed as not being authentic, then the defendants would have good ground of objection. If the defendants feels that the pay slips were not authentic then they have the onus of producing the authentic pay slips for the court to have compared the two and make a finding. It is also interesting to note that DW1 in her testimony before the court has testified to the effect that she did not know what was between late Abdullahi Shehu and the defendants until when this case came up, as she has not joined the services of the defendants when late Abdullahi Shehu was working with the defendants. She has also told the court that the pay slips were issued before she joined the service of second defendant. In view of the foregoing, I hereby overruled the objection of the claimant to the admissibility of exhibit CW1E1-66, the said exhibit was properly admitted and will be considered appropriately in evaluating the evidence adduced before the court.

Now, coming to the main issue for determination the claims of the claimants is for the sum of N3,318,000.00 being deductions made from the salaries of late Abdullahi Shehu a former staff of the defendants which was meant to be for car loan which was never supplied to him till the time he left the services of the defendants and died thereafter. The claimants are also claiming the sums of N500,000.00 each for cost of litigation and general damages. The claimants through their sole witness tendered exhibits CW1A1-2, the letter of appointment of Late Abdullahi Shehu issued by the 1st defendant, CW1 D, a letter addressed to the MD/CEO, Trustfund Pension Plc which is in respect of remittance of accrued pension contribution in respect of Late Abdullahi Shehu. These two exhibits have clearly established that contrary to the assertions of the defendants, Late Abdullahi Shehu was a former employee of the defendants. It is also clear that exhibit CW1A has debunked the averments in the defendants’ joint statement of defence and paragraphs 9 and 10 in the witness statement on oath of DW1. These exhibits also goes to show that Late Abdullahi Shehu served the 2nd defendant. The defendants have vide exhibit CW1D confirmed remittance of his pension contribution to his Pension fund Administrator Trustfund Pension Plc. In view of these findings I have no doubt in my mind that late Abdullahi Shehu was employed by the 1st defendant and posted to 2nd defendants where he served as Business Development Officer (BDO), till the time he left the services of the defendants.

On the main claim of the claimants I.e refund of the sum of N3,381,000.00 (three Million three Hundred and Eighty One Thousand Naira) being refund of deduction from salary of Late Abdullahi Shehu from June 2010 to November 2015, the claimants placed reliance on exhibit CW1E1-66, the pay slips showing the deductions for the car loan from the salaries of the Late Abdullahi Shehu, which according to the claimants’ was never supplied to the deceased by the defendants. The defendants evasively denied the claimants averments on the deductions and put the claimant to strict proof.

It is pertinent at this juncture to point out here that the defendants despite being present in court and without any form of disability or the other when the sole witness of the claimants testified refused to cross-examined the witness to test his credibility and discredit the evidence given both orally and in the witness statements on oath adopted in the course of the trial. This attitude and posture adopted by counsel clearly have negative implication to the position of the defendants.

It is to be noted that the defendants neglect, refusal, declining and failure to cross-examine CW1 after his testimony means that the entire testimony of CW1 has been accepted by the defendants as truth. The testimony of CW1, therefore, remained unchallenged, uncontroverted and un-impugned. This court is therefore entitled to act on it. See AMADI V NWOSU (1992) 5 NWLR (PT.241) 273, where the apex court stated the position of the law that it is settled principle of law where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the evidence as true, cross-examined on the facts, or at least show that he does not accept the evidence as true. Where he fails to do either, a court can take silence as an acceptance, that the party does not dispute the facts. See also AJAO V ALAO 1986 5 NWLR PT.45 82, LEADWAY ASSURANCE V ZECO NIG LTD (2004) 1 NWLR (PT.884) 316. The defendants in this suit by failing to cross-examine the sole witness of the claimants have admitted the evidence adduced by the claimants. See AKINBIYI V ANIKE 1959 WRNLR 16, NWANKWERE V ADEWUNMI 1962 WRNLR 298, AMADI V NWOSU SUPRA, GUINESS NIG. PLC V SKA NIG LTD 2012 18 NWLR PT.1331 179, NIC V AMINU 2012 8 NWLR PT.1302 330, GAJI & ORS. V PAYE (2003) 8 NWLR (PT.823) 583, CBN & ORS. OKOJIE2015 LPELR-24740(SC).

The position of the defendants was made worst with the evidence of DW1 given under cross-examination which is to the effect that DW1, though has in her witness statement on oath stated that by her position she is familiar with the facts of this case and that the facts deposed by her were within her personal knowledge as well as information received from the records of the documents in the course of the scheduled of her duty, never the less testified under cross-examination that ‘‘I did not receive documents in respect of Abdullahi Shehu (deceased). I did not know anything between Abdullahi Shehu and the defendants until the case came up. I got to know when this matter came up that the claimant is claiming that he worked with Global Fleet and he is asking for his entitlement and other benefits. Exhibit CW1E1-66, is carrying name of our employer no signature, no stamp, it looks like pay advice from my employer, but no signature or stamp. When exhibit CW1E1-66 was issued I was not working with the 2nd defendant. I know Chikezei Nwaogwu, he is admin HR Manager. The name is his name but the signature I cannot confirm whether the signature on exhibit CW1D.. I don’t know Nko Udo. I know Vitalis Nwokorie he does not work in our organization. He worked before but is no longer with the organization, he left in 2017. I don’t know Vivian Ike.’’

From the foregoing revelation and in the absence of contradicting the evidence of the sole witness of the claimants, by the defendants, I have no difficulty in accepting that the claimants have established that the defendants did deduct Money purported to be car loan from the salary of late Abdullahi Shehu from June 2010 to November 2015 as shown by exhibit CW1E1-66. It is clear from exhibit CW1E1-66, that the sum of N56,666.66 was deducted for June – July 2010 making the deduction per month to the tune of N28,666.66. The sum of N75,000.00 was deducted for the Months January, February, March 2012, making the monthly deduction of N25,000.00. For the Months of August 2010 to December 2011, and April 2012 to November 2015 the sum of N3,050,000.00 was deducted at the rate of N50,000.00 per months for the 61 Months period.

If the three different deduction are added together the total deductions for the period of June 2010 to November 2015 will be the sum of N3,181,666.66 (Three Million One Hundred and Eighty One Thousand Sis Hundred and Sixty six Naira Sixty six Kobo only) and not the sum of N3,318,000.00 contained in the claim.

From the foregoing, it is my view that the claimant is only entitled to what he was able to prove. In the circumstance I hereby grant the sum of N3,181,666.66 (Three Million One Hundred and Eighty One Thousand Sis Hundred and Sixty six Naira Sixty six Kobo only) which the claimants are able to rove by the evidence adduced before the court. I awarded these sums though less than what the claimant is asking for, the law allows granting of proved lesser amount. The law is trite that a court can grant lesser claim but not grant more than what is clamed. See BADMUS V ABEGUNDE 2001 3 WRN 40, OGUNYADE V OSHUNKEYE (2007) 15 NWLR (PT.1057) 218, ATIVIE V KABEL METAL NIG. LTD (2008) 10 NWLR (PT.1095) 399. The apex court in the case of HASTON NIGERIA LTD V ACB PLC (2002) 12 NWLR PT.782 623, where it was held ‘the law is trite that where a plaintiff claims more than he can prove, he is awarded the lesser amount. Where a party claims more than he can prove, he is awarded the lesser amount. See KAYDEE VENTURES LTD V THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & 2 ORS (2010) 2-3 SC (PT.III) 1.

I must also observe that the claimant has not been able to adduce convincing evidence before the court to establish entitlements to the sum of N500,000 for cost of Litigation.

For avoidance of doubt the judgment of this court is as follows:-

The defendants are hereby ordered to pay to the claimants the sum of N3,181,666.66 (Three Million One Hundred and Eighty One Thousand Sis Hundred and Sixty Six Naira Sixty six Kobo only), being deductions from the salary of Late Abdullahi Shehu, for purported car loan which was never supplied to him.

The sum of N300,000.00 (Three Hundred Thousand Naira) cost is hereby awarded to the claimant against the defendants.

All sums of money payable in this judgment shall be paid within 30 day from the date of this judgment. Failing which the judgment sum shall attract interest at the rate of 10% per annum.

Judgment entered accordingly.

Sanusi Kado,

Judge.