IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
ON THE 23RD OF MARCH, 2021
BEFORE: HIS LORDSHIP HONOURABLE JUSTICE E.D.E ISELE
Suit No: NICN/KN/15/2017
IRMIYA DANIEL - CLAIMANT
ELBE PHARMA NIGERIA LIMITED - DEFENDANT
Parties – Absent
T. Okitikpi, Esq. for the Claimant holding brief of A. A. Mustapha, Esq.
1) By the amended Statement of facts filed on 12th day of April, 2018 the Claimant claimed:-
1) A Declaration that the Defendant is indebted to the Claimant in the sum of N7,680,000:00 (Seven Million Six Hundred and Eighty Thousand Naira Only) being unpaid salaries and allowances from August, 2007 - August 2015.
2) A Declaration of the Court that the Claimant is entitles to be paid severance package or gratuity.
3) A Declaration of the Court that the Claimant is entitled to the payment of damages in the sum of N4,000,000:00 (Four Million Naira Only)
4) AN ORDER directing the defendant to pay the Claimant the sum N7,680,000:00 (Seven Million Six Hundred and Eighty Thousand Naira Only) being unpaid salaries and allowances from August, 2007 - August 2015.
5) AN ORDER directing the defendant to pay the claimant his severance package or gratuity.
6) AN ORDER of court directing the defendant to pay the claimant damages in the sum of N4,000,000.00 (four Million Naira).
7) Interest at 10% Court interest rate from the date of judgement till the whole judgement debt is satisfied.
8) Cost of this suit.
THE CASE OF THE CLAIMANT
2. It is the case of the Claimant that he is a former employee of the Defendant, a company incorporated under Nigerian Law with registered offices situated in lagos and engaged in the business of pharmaceuticals, chemicals and general goods.
2.1 It is his case that he was employed by exhibit A dated 30th July 2007 as a sales representatives by virtue of which he was responsible for distribution and marketing of the company pharmaceutical products within Nigeria specifically in Katsina state. He maintained that by virtue of the employment contract of 30th July, 2007 he was entitled to an annual salary of (N600,000.00k) six hundred thousand naira only with an official car. That he was also entitled to:
Monthly car maintenance allowance N15,000.00k
Fuel allowance N10,000.00k
Communication allowance N5,000.00k
2.2 All mounting to N360,000.00k per year.
He maintains that he served the Defendant diligently in his capacity as a sales representative in view of his competence and capabilities with no negative consequences whatsoever. And that the relationship between him and the Defendant had been one of mutual benefits particularly to the defendant who recorded a turnover of hundreds of millions owing to his assiduous efforts.
2.3 It is his case that although his employment with the Defendant took effect on 1st August, 2007, he resigned his appointment with the Defendant by exhibit DA1 dated 6/8/15 which took effect on 6th September 2015 which all amounted to a period of 8 years in which he served the Defendant.
2.4 The Claimant averred that in the course of his employment with the Defendant, the Defendant did not pay his salary of initially agreed by the parties but only gave to him some irregular stipends at periodic intervals. That for the Eight years he served the Defendant he was entitled:
Salary – N600,000.00 x 8 years = N4,800,000.00k
Allowance – N360,000.00 x 8 years = N2,880,000.00k
Total = 7,680,000.00k
2.5 He maintained that till date the Defendant is yet to pay him the outstanding sum of N7,680,000.00k despite several pleas and entreaties. That he was kept on probation for eight (8) years in a blatant and flagrant violation of existing laws. That he has constantly and continuously demanded for the payment of his accrued salary and subsequently on resignation his severance package. And rather than acceding to his demands the Defendant resorted to intimidation of the Claimant by sending to him and his guarantor two letters dated 16th October, 2015 making bogus and unsubstantiated counter demand from the claimant which letters were admitted in evidence as exhibits DA2 and DA3 respectively.
2.6 He maintained that till date his demand had not been met by the Defendants. He tendered exhibit A1 his lawyer’s letter dated 5th April, 2016.
3. THE CASE OF THE DEFENDANT AND COUNTER CLAIM
3.1 In denying the case of the claimant, the Defendant maintained that the claimant was only engaged to be sales Representatives covering only Kastina State. And that the claimant was paid all his salaries and allowances in the manner as reproduced in its statement of Defence:
a) 27/11/07 August – Oct 07 = N240,000.00
b) 15/10/08 Jan. – Sept. 08 = N720,000.00
c) 22/1/08 Nov. – Dec. 08 = N160,000.00
d) 29/6/09 Jan – June 09 = N480,000.00
e) 23/10/09 July – September = N240,000.00
f) 11/1/10 October – Dec 10 = N240,000.00
g) 28/7/10 Jan – June 2010 = N480,000.00
h) 18/8/10 July 2010 = N80,000.00
i) 11/11/10 August – Oct. 2010 = N240,000,00
j) 10/1/11 Nov. – Dec. 2011 = N160,000.00
k) 22/6/11 January – May 11 = N400,000.00
l) 25/10/11 June – Sept. 11 = N320,000.00
m) 9/2/12 October – Dec. 12 = N240,000.00
n) 3/10/12 Jan. – Sept. 12 = N720,000.00
o) 17/1/13 Oct. – Dec. 13 = N240,000.00
p) 28/3/13 Jan. – March. 13 = N240,000.00
q) 21/6/13 May 13 = N78,280.00
r) 11/7/13 April 13 = N80,000.00
s) 12/7/13 June 13 = N78,280,00
t) 20/8/13 July 13 = N78,280,00
u) 4/9/13 August 13 = N78,280,00
v) 8/10/13 Sep. 13 = N78,280.00
w) 19/5/14 April 14 = N78,280.00
x) 22/7/14 May – June = N216,560.00
y) 25/9/14 July – August = N216,560.00
z) 31/10/14 September 14 = N108,280.00
aa) 4/12/14 October 14 = N108,280.00
bb) 4/12/14 November 14 = N108,280.00
cc) 31/10/14 October 14 = N108,280.00
dd) 16/4/14 March 14 = N78,280.00
ee) 28/11/14 November 14 = N108,280.00
ff) 26/1/15 December 14 = N108,280.00
gg) 28/4/14 Jan – March 14 = N234,840.00
hh) 19/5/14 April 14 = N78,280.00
ii) 22/7/14 May – June 14 = N216,560.00
jj) 23/9/14 July – Aug. 14 = N216,560.00
kk) 31/10/14 October 14 = N108,280.00
ll) 12/2/15 January 15 = N108,280.00
mm) 17/3/15 February 15 = N107,580.00
nn) 31/3/15 March 15 = N107,500.00
oo) 30/4/15 April 15 = N107,500.00
pp) 28/5/15 May 15 = N107,500.00
qq) 7/8/15 July 15 = N215,000.00
rr) 7/8/15 July 15 = N215,000.00
ss) 28/5/15 May 15 = N107,500.00
tt) 30/4/15 April 15 = N107,500.00
TOTAL = N8,948,640.00
3.2 In addition to these Defendant relied on and tendered during the trial ledgers in exhibits DB to DB7. The Defendant also averred that throughout the period of the relationship/Employment the parties maintained credit and debit ledger account wherein all the credit sales and payments of salaries and commissions were duly entered. The Defendant relied specifically on the ledgers of years 2007, 2008, 2009, 2010, 2011, 2012, 2014 and 2015 to 2016. And proceeded to give the claimant notice to produce all the invoices for supplies made to him and all the records of payments made by him to the Defendants. That the Claimant was under obligation to account fully to the Defendant of all the supplies to him by the Defendant and his resignation could not obliterate this duty to account.
3.3 The Defendant stated that the performance of the contact was carried out by the parties as follows:
a) The Claimant placed sales orders and the Defendant invoiced and supplied pharmaceutical products to the claimant who sold and paid the Defendant.
b) The Defendant invoiced and supplied the product to the claimant on credit and debited his account for the value.
c) The Defendant invoiced and supplied based on the sales Orders made by the Claimant.
d) The Claimant appropriated his salary from the sales of the products.
e) At intervals accounts were reconciled, salaries, commissions and sundry expenses of the claimant were credited to his account.
3.4 The Defendant stated that this is the way the parties operated for the period of the employment until the resignation of the claimant on 6/8/2015. The Defendant contended further that the last supply to the Claimant was on the 7th of July, 2015 for goods worth N2,110,600.00 which took the Debit balance to N4,549,631.25 and on resignation the outstanding balance on the account due to be paid was to the claim and after final reconciled account is the sum of N1,881,751.25.
3.5 The Defendant stated that the Claimant still owes the sum of N1,881,75.25 to the Defendant. The Defendant maintained that through exhibit DA2 dated 16th October 2015 it demanded for payment of the balance and the Claimant through his counsel made the reply dated 5th April 2016 in exhibit A1.
4. DEFENDANT’S COUNTER CLAIM
4.1 The Defendant at paragraph 6 of the counter claim averred that, it supplied various pharmaceutical products to the Claimant/Defendant to counter claim. The Counter claimant also specifically pleaded that the products were supplied to the Defendant on credit placing reliance on the invoices in the DB series of exhibits. And averred that the total invoice value of the products supplied to the Claimants/Defendant and outstanding indebtedness as at 31st March, 2016 was the sum of N1,881,751.25 and the said sum was still outstanding.
4.2 The counter claim was for:
a) A declaration that the Defendant is under liability to fully account for the supplies of products made to him by the counter claimant company and his resignation shall not obliterate the obligation until he fully discharged his duty/obligation.
b) The sum of N1,881,751.25 being total balance sum for all supplies made to the Claimant/Defendant of pharmaceutical products by the Defendant counter claimant.
c) Interest at the rate of 24% from 6th August 2016 between final liquidation of the Judgment base.
d) Cost of action.
5. DEFENCE TO COUNTER CLAIM
5.1 The claimant as Defendant to the counter claim admitted paragraphs 1, 2, 4 & 6 of the counter claim and further to paragraph 6, he averred that for the period in question he made a total sale payment of about N155,289,515 (One Hundred and Fifty Five Million, Two Hundred and Eighty Nine Thousand, Five Hundred and Fifteen Naira) He proceeded to denying the counter claim and put the counter claimant to proof.
5.2 He averred that supplies were not made to him via the invoices pleaded therein and put the counter claimant to the strictest proof and contended that he is entitled to be paid his salaries and other monies unpaid by the Defendant to him and that he was not indebted to the counter claimant, that there were no goods supplied or monies owed outstanding and due to the counter claimant as account was already rendered and reconciled with the Defendant before the letter of resignation took effect and denied that the counter claimant is not entitled to any of the reliefs sought.
6. THE CROSS EXAMINATION OF WITNESSESS
6.1 Under Cross Examination the claimant as CW1 told the court that he was getting goods he was marketing from the Defendant in Lagos where he went occasionally in a year. He told the court he was not paying cash to take delivery of the goods. He was asked :
Q: Before you take subsequent supplies. How were you reconciling the goods supplied to you? Were you paying, completing payment for previous supplies? He answered: The way it is done is that goods are supplied to you then they debit your account. When the goods in my stock comes down they make more supplies.
Q: So how were you collecting monies?
Ans: From customers after selling. I collect the monies and send it to them.
Q: Would it be right to say that you maintain credit debit account?
6.2 Q: How was your account reconciled? Was it weekly, daily, monthly or yearly?
Ans: Initially when I first joined it was annually, subsequently, there was a time, and the pattern was changed to quarterly.
Q: During the reconciliation what was done?
Ans: During reconciliation they check all, they calculate all payments made and the total number of goods supplied and worth of goods supplied after physical inspection by the manager.
Q: At that stage of reconciliation was the company paying you cash or crediting your account with monies accruing to you, including expenses and stipends.
6.3 Ans: They don’t credit my account with Cash.
Q: In Paragraph II of your earlier Witness Statement on Oath you said the Defendant gave you irregular stipends at periodic intervals were these stipends was it Cash or you were Credited?
Ans: It was credited in my favour, it was not given to me in cash.
Q: What was done during the reconciliation?
Ans: At times they call to tell me they have credited my account or debited it.
Q: Do you remember how much was paid to you as a regular stipend?
Q: You resigned
Q: When you resigned did you return the stipend?
Ans: I could not. Q: When you resigned did you do final reconciliation of account with the Defendant? Ans: Yes
Q: What was the state of the account then?
Ans: It was around 3.7Million Naira, I can’t say precisely. It was debit of what I was owing them.
6.4. DW1, in his Cross Examination testified as the Credit Control Manager of the Defendant. He gave answer to the following questions:
Q: Tell the Court if you have a salary voucher that shows you paid salaries to the Claimant?
Ans: There is evidence that we pay the Claimant is on the ledger account. Q: Do you have a salary voucher showing payment of salary to the Claimant? Ans: There is no voucher but the answer is in the ledger account.
Q: Look at the DB series did the Claimant Counter sign them?
Ans: Yes he cannot counter
DW1 said the DB series are account ledgers for the years the Claimant was in service.
Q: Tell the Court who prepares staff salaries?
Ans: The account Department prepares and credits the ledger accounts.
Q: Tell the court how much you are claiming in the counter claim?
Ans: N1,881,751:25, being the un-cleared balance of what the claimant owed to the Defendant.
Q: Before your company received exhibit A1 (the demand letter) did your company make a claim for this amount?
Q: Your claim was made before the solicitor’s letter?
Ans: We made our claim before the solicitor wrote.
6.5. DW1 then referred to exhibits DA2 and DA3 written by the Defendant to the claimant and his guarantor respectively. He also told the court he prepared the documents and that he was a Graduate of Accounting and a Chartered cost Manager and a Member of ICAN. He was asked:
Q: How do you pay salaries in your company?
Ans: When he was in service the claimant was being paid manually by crediting the ledger account as in the case of the claimant.
Q: How many documents do these documents cover?
Ans: It covers a period of eight years.
Q: The claimant was not in the employment of the Defendant from 6th April, 2015 to the year 2016?
Ans: From the resignation he retired sometime in August 2015.
Q: A at 2016 he was not in the employment of the Defendant?
Q: How much was the claimant owing the Defendant when he left?
Ans: When he left it was about 2. Something Million.
Q: The two point something Million and 1.8 which is correct?
Ans: As we speak now it is N1,818,751:25.
Q: The Company wrote claiming the amount? Ans; No.
Q: Look at exhibit DA3 how much is stated there?
Ans: This is a typographical error it is N3,580,613:25.
7. THE WRITTEN ADDRESS OF THE PARTIES
In the Defendant’s Final written addresses the following issues were formulated for determination.
1. Whether the claimant is entitled to the claim for 8 years salary claimed.
2. Whether the claimant is entitled to the other claims as claimed.
3. Whether the Defendant/Counter Claimant is entitled to the counter claim as claimed in response the Claimant/Defendant to Counter Claim formulated these issues (1) Whether the Claimant has proved his case to be entitled to the reliefs sought (2) Whether the Defendant has proved his Counter Claim.
7.2 In the argument on whether the claimant is entitled to 8 years salary as claimed the Defendant submitted that the claim for 8 years as claimed from the Defendant is very scandalous and absurd. That is, a claim from the first month of his employment 1st August, 2007 to the last month of his employment ending 6th September, 2015, he was not paid salary even for a month and he continued to work until he resignation about 8 years after, that the assertion and claim is absolutely impossible .
7.3 The Defendant submitted that the claimant had not placed any material before the court in proof of the claim. That it is trite that he who assert must prove citing Section 131 of the Evidence Act 2011. That a claimant is expected to win on the strength of his case rather than on the weakness of the case of his adversary to be entitled to the declaration sought citing ELIMS V. OMOBARE (1982) 12SC and NWOKIDU & ORS V. OKANU & ANOTHER (2010) I SC (pt.1) 136. That the standard of proof in a Civil case being proof on a balance of probabilities based on the Standard of Preponderance of evidence relying on FBN PLC V. ONUKWUHA (2005) 16 NWLR (pt. 950) 120 at 153.IBADAN L.G.R.C LTD V. OKUNNADE (2005) 2 NWLR (pt. 911) 45 @ 65.
7.4 It was argued for the Defendant at paragraph 3.1.4 of the address that the Defendant had in paragraph 4 to 7 of it’s Amended statement on Oath dated 19th April, 2017 pleaded and gave evidence of payment of salaries to the claimant and the claimant did not controvert or discredit the elaborate evidence, that in further proof the Defendant/Counter Claimant tendered the Account ledgers Exhibit DB to DB8 & 9.
7.5 In response the Claimant in his written address submitted that in Civil actions the burden of proof is on the plaintiff as the case may be to prove his case on a balance of probabilities relying on S.133 (1) of the Evidence Act Reliance was placed on exhibit A the letter of employment which reserved a salary of N600,000:00 (Six Hundred Thousand per Month) to the claimant together with allowances totaling N360,000:00 per annum for the claimant And reference also made to paragraph 12 of the claimant’s statement on Oath to the effect that the defendant owed him salaries for 8 years the Claimant submitted at paragraph 4.5 of the address that by these pieces of evidence enumerated above he had clearly established a prima facie case with respect to his claims for the sum of N7,680,000:00k that it was incumbent on the Defendant to rebut these pieces of evidence as the burden of proof had shifted to the Defendant citing the case of NDUUL V. WAYO & ORS (2018) LPELR 45151 (SC).
7.6 Claimant contended by referring at paragraph 4.8 of the address referring the court to the evidence of the Defendant offered in rebuttal of the Claimant’s claims in the evidence as disclosed by exhibit DB to DB8 & DB9 being ledgers with several entries that it should be noted that the Defendant merely tendered exhibits DB to DB8 and DB9 before the court without taking further steps as required in law. Submitting that beyond tendering evidence, a party has a duty to relate such documents tendered to the part of his case requiring same. Citing AMACHREE V. GOODHEAD (2009) ALL FWLR PART 461 P. 911 at 940 paras C.E.That the Defendant merely dumped exhibits DB8 to DB9 on the Court “Without attempting to tie same to the (Claimant’s) case”. That exhibits DB to DB9 had no evidential value before the court meaning that the claimant’s Prima Facie evidence that the Defendant is indebted to him (Claimant) in the sum of N7,680,000.00k has not been controverted by the Defendant. Submitting that evidence which ought to be controverted and is not controverted is deemed as admitted submitting further that the court should hold that the defendant is indebted to the claimant in the sum of N7,680,000,00k.
7.7 Maintaining further that the arguments with respect to demonstrated that the Defendant failed to pay the claimant the said sum of N7,680,000,00k representing salaries for 8 years the claimant worked for the Defendant contrary to the terms of exhibit C1 (Letter of employment). This, the claimant submitted amounts to breach of contract citing CHING V. PLATEAU SERVICES LTD (2018) LPELR – 45391 (CA) and BILANTE INTL LTD V. NDIC (2011) LPELR – 781 (SC) that damages following breach of contract and is payable by the party responsible for the breach.
7.8 On the second issue, it was submitted noting that in the counter claim of the Defendant the main claim of the Defendant is a declaratory claim. That the Defendant is mandated by law to succeed on the strength of it’s case in proof of it’s claim in relief A and not on the weakness of the Defence. Citing NYESOM V. PETERSIDE (2016) ALL FWLR PART 842, P. 1573 P. 1649 to 1650 PARA H- A. That for the Defendant to be entitled to relief A, it is incumbent on the Defendant to prove the supplies delivered to the Claimant. That in a bid to prove supplies the Defendant tendered several invoices by exhibits DC to DC15, which the claimant submitted are of no evidential value merely dumped on the court without exhibits were merely dumped on the court without the Defendant relating same to specific aspects of it’s case relying on LUMATRON (NIG) LTD & ANOR V. FCMB (2016) LPELR – 41409 (CA).
7.9 And submitting further that if Relief A of the counter claim fails reliefs B, C and D must also fail because they are ancillary to Relief A. Meaning that the success of Reliefs B, C and D defend on Relief A Relief A of the counter claim citing ADEOGUN V. EKUNRIN (2003) ALL FWLR PART 170, P. 1326 1339, paras B – C and urged the court to dismiss the counter claim.
8.0. THE DEFENDANT’S REPLY TO THE CLAIMANT’S FINAL ADDRESS
8.1 With regard to the claimant’s submission that exhibits were dumped on the court, the Defendant/counter claimant submitted that the claimant misconceived the evidence of the Defendant/counter claimant visa vis the authorities. That the Defendant in paragraph of it’s statement on Oath dated 11thJune 2019 the Defendant’s only witness evidence before the court, enumerated the entrees of on the payments and dates as contained in the exhibits before the court and the periodical ledgers tendered as distinct exhibits and urged the court to discountenance claimant’s submission that paragraphs 11, 12, 13, 15, 23, and 24 of the statement on Oath and paragraphs 7 & 8 of the further statement on Oath dated 11th June 2019 clearly related the exhibits.
9. COURT’S DECISION
9.1 In the first head of claim the claimant is claiming a Declaration that Defendant is indebted to him in the sum of N7,680,000,00k (Seven Million Six Hundred and Eighty Thousand Naira Only) being unpaid salaries and allowances from August 2007 – August 2015.
In the second head of claim he is also claiming a declaration of the Court that he is entitled to be paid severance package gratuity in his witness deposition before the Court he averred that he is entitled to an annual salary of N600,000,00k (Six Hundred Thousand Naira Only) per annum with an official car by virtue of the employment contract in his letter of employment in exhibit A dated 30th July, 2007. That he is also entitled by the same contract to N15,000,00k for monthly car maintenance allowances fuel allowance of N10,000,00k monthly, communication allowance of N5,000,00l monthly, total being N30,000,00k per month amounting to N360,000,00k per year.
9.2 Now exhibit A written to the claimant, dated July 30, 2007 provides:
OFFER OF APPOINTMENT
“With reference to your application and the interview you had with us recently, we are pleased to offer you appointment as a sales representative with effect from August 1, 2007.
As a sales Representative, you will be responsible for distribution and marketing of the company’s pharmaceutical products within Katsina State. You will also liaise with patent medicine Dealers and their representative zonal associations. You will be on an annual salary of N600,000,00k (Six Hundred Thousand Naira Only) with an official car attached to it. You are entitled to a monthly, car maintenance allowance of N15,000,00 fuel allowance of N10,000,00 and communication allowance of N5,000,000.00. You will be on probation for 6 calendar months after which your appointment may be confirmed subject to your satisfactory overall performance on the Job, therefore you are expected to work diligently to justify your remuneration.
9.3 Either party shall terminate this contract by giving the other one month’s salary in lieu of notice or by a one month’s written notice. You may however be summarily dismissed or suspended without pay for dishonesty, gross negligence and dereliction of duty or breach of confidentiality.
If this offer is acceptable by you, kindly append your signature on a copy of this letter attached in acceptance of offer………..”
The letter was signed for the defendant.
9.4 Now having gone through the submission of the parties in their final written addresses earlier in this judgment. I must point out that the Claimant has stated that he was paid irregular stipends at paragraph 11 of his witness statement on oath. The 9th Edition of the Blacks Law dictionaryat page 1550 defines the word stipend as:
“A salary or other regular periodic payment” this in my view shows that a salary was being paid. However the exact amount he was paid at the said irregular intervals were not elicited during cross examination. The Claimant himself did not suggest an amount he was being paid, over which a subtraction could be made or an addition made over that sum against the amount of salary and allowances reserved to be paid to him annually in exhibit ‘A’.
So the court is unaware at this stage of the judgment just how much the difference was or is. The claimant having failed to specifically come up with the details of how much he received in each month of the 8 years he worked with the defendant and the exact amount for each month of those 8 years and how much he was short paid for in each of the said months and total accrual of each month for a period of eight years.
9.5 In this case the Defendant at paragraph 4 to 7 of the statement of Defence had specifically produced figures of amounts of monies paid from 27/11/07 to 30/4/15 April 2015 – as salaries and allowances it was for the claimant to respond to those by way a reply to this defence which he did not do. Rather he filed a response only to the counter claim. The law is that he who asserts must prove, and it is clear to me that the claimant has not proved or demonstrated how he came about the sum of N7,680,000.00 for a period of 8 years he worked with the Defendant.
9.6 Also in the Cross examination of the claimant he had admitted he was paid salaries by the Defendant and that he had signed for the salaries. The exhibits in the DB series, the ledgers tendered by the Defendants were not challenged by the claimant as to their content in a manner to suggest that the Defendant owed the claimant salaries for 8 years. The question should then be asked; how then was he able to endure for 8 years without pay?
9.7 The Claimant himself by failing to adduce particulars of the amount of money unpaid over years in the actual monthly salary, and the actual amount the Defendant paid him as “Irregular stipend” and for which month of which years was he paid what amount. With these short comings in the case of the Claimant I consequently find and do hold that he failed to confer any merit on his case beyond the Prima Facie case established which I have found the Defendant responded to by setting up the exhibits in the DB series to which the Claimant did not controvert or discredit.
9.8 It is to be noted further that at paragraph 8 of the statement of Defence the Defendant gave the Claimant notice to produce all invoices for supplies made to him and all records of payments made by him to the Defendant. The Claimant sadly ignored this. In my view the Claimant cannot hope to succeed on exhibit A and A1 alone. There was so much to be done which he failed to do. Consequently I hold that in the premises of the above reasons the case of the Claimant fails in all heads of Claim.
9.9 With regard to the counter claim, the reasons advanced by the Claimant in the arguments that the party tendering a document ought to link the document to the claim or the specific part or aspect of the claim. Here, in this case I find and do hold that in the course of the trial/hearing the counter claimant did not for once show to the court how it accumulated the amount of 1,881,751.25k being the total balance sum for all the supplies made to the claimant/defendant to counter claim of pharmaceutical products by the Defendant counter claimant. see the case of IDUNORBA V. KEYSTONE BANK (TD & ORS (2013) LPELR 43840 (CA) where it was held that the law is firmly settled that a party relying on documents in proof of his case must in open count specifically relate each of such documents to that part of the case in respect of which the document is being tendered. See also BABAN LUNGU & AWOR V. ZAREWAN & ORS (2013) LPELR – 20720 (CA) it is not by enumerating them in the pleadings. They must be linked to the claims.
I must say that the course of the trial DW1 testifying for the counter claimant in his evidence could not provide the vital link necessary to support the counter claim. I find that the DB series of exhibits, that is, the ledgers were merely dumped on the court, neither of the parties being able to put them in to use in aid of their cases. And for the reasons advanced above the counter claim must fail and is dismissed.
10. On the whole, the case of the Claimant fails and so does the counter claim. Judgment is entered accordingly. There are no awards as to costs.
HON. JUSTICE E. D. E. ISELE