IN THENATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
28TH DAY OF JULY 2022
SUIT NO. NICN/CA/04/2020
BETWEEN:
Mr. Anthony Aniesebe Ette ………………………………………………………………… claimant
AND
1. Septagus Consulting Nigeria Ltd.
2. Keystone Bank Limited defendants
JUDGMENT
1. The claimant vide exhibit C2 was employed by the Resources Intermediaries (Nigeria Limited) as Transaction Processing Assistant 1. The claimant was posted to serve the 2nd defendant at its Eket Branch, Akwa Ibom State. However, vide exhibit C3, titled ‘’TRANSFER OF SERVICE’’, the employer of the claimant, Resources Intermediaries (Nigeria Limited) gave the claimant one month notice of termination of appointment. The claimant was also vide exhibit C3 informed that his service will be transferred to another service provider as may be determined by the 2nd defendant with effect from 1/7/2019.
2. According to the claimant upon his employment, the 2nd defendant who was the principal of Resource Intermediaries (Nigeria Limited) made it known to the claimant that he was at that moment their contract staff pending when he will be absorbed as a permanent staff, but in the time being, he will work and be treated as their regular staff and was accordingly issued with all the paraphernalia of staff, including Keystone staff Identity Card, Keystone Bank Security Devises (Token) etc, to demonstrate their commitment with him as their employee.
3. The claimant served the 2nd defendant at its Eket Branch from 2nd May 2014, till when he was suspended with effect from 22/7/2019, vide exhibit C4, issued to him by the 1st defendant. According to the claimant five months later the 2nd defendant in connivance with the 1st defendant notified the claimant vide exhibit C5 through E-mail that he has been dismissed from the employment of the 1st defendant for his failure to raise an alarm on the suspicious transactions on customers’ accounts by his colleagues at the Eket Branch where he was working at the material time. This was despite the 1st defendant not being the claimant’s employer. And the terms of his employment did not stipulate that the claimant will in addition to serving as Transaction Assistant Officer 1, will be expected to act or carry out additional function of supervising his colleagues on the performance of their assigned duties which he was accused of failing to raise alarm on his colleague suspicious transactions on customers’ accounts. According to the claimant the members of staff of the 2nd defendant including the claimant who were suspended on discovery of misconducts committed at Eket Branch, when the perpetrators were discovered they were handed over to the police. While the Branch Manager, the Supervisor and some other staff who threatened legal action were recalled, but the claimant who did not threatened legal action was purportedly dismissed by the 1st defendant who had nothing to do with his employment based on frivolous and untenable reason.
4. The claimant denied being employee of the 1st defendant. He further stated that the defendants connived and 1st defendant who had nothing to do with his contract of employment inappropriately issued suspension letter to the claimant followed by purported letter of dismissal. Based on the claimant’s solicitors letter, the 1st defendant withdrew the dismissal letter and purportedly converted the dismissal to termination of appointment.
5. The above facts necessitated the claimant taking out a general form of complaint against the defendants claiming jointly and severally the reliefs stated below:-
1. A declaration setting aside the unreasonable, unlawful, wrongful and unwarranted suspension and purported dismissal of the Claimant.
2. A declaration that the illegal conducts of the Defendants is violation of the principle of equity and natural justice and contrary to the extant law.
3. A declaration that going by the unlawful and cruel acts of the Defendants’ servants/agents, the Claimant is entitled to Specific, Aggravated, Exemplary and General Damages.
4. An Order directing the Defendants by way of Special Damages jointly and severally pay to the Claimant all his salaries and allowances from July 2019 to December 2019 amounting to N411,392.94 representing salaries/allowances for six (6) months at the monthly salary if N68,565.49 and thereafter, from January 2020 till the determination of this matter.
5. An Order directing the Defendants to reinstate the Claimant to his employment with the 2nd Defendant forthwith.
6. An Order that the Claimant be paid the sum of One hundred Million Naira (N100,000,000.00) as Aggravated, Exemplary and General Damages for the trauma, mental torture and inconceivable hardship the Claimant and his young family has been exposed to by the wrongful , unwarranted, barbaric and illegal acts of the Defendants.
7. N1,000,000.00 (One Million Naira) being cost of legal action.”
6. Upon being served with the general form of complaint and its accompanying processes the defendants separately entered appearances and filed defences separately. The respective statements of defences were accompanied by witness statement on oath, list of witnesses and list of documents to be relied on at the trial.
7. On 18/3/2021, the claimant testified as CW1 in proof of his case. In the course of giving evidence in chief thirteen documents were tendered and admitted in evidence, the documents were marked as exhibits C1 – C13. The claimant was cross examine by the counsel for the defendants, thereafter he was discharged.
8. Under cross examination by counsel for the 1st defendant, the claimant testified that he was employed by the 2nd defendant through its agent as per exhibit C2. CW1 continued his evidence that from 2/4/2014 – 1/7/2019 he was not a staff of Resources intermediaries Nigeria Ltd. It is also not correct that his salaries and allowances come from Resources intermediaries Nigeria Ltd. CW1 confirmed receipt of letter of transfer from Resources intermediaries Nigeria Ltd informing him that their contract with 2nd defendant has ended, but that does not affect his employment by termination of contract with termination of contract with Resources intermediaries Nigeria Ltd. CW1 read exhibit C3 and stated that he was informed that his services will be transferred to another service provide by 1st July 2019, after expiration of one month notice. The claimant insisted that it is not true that the 1st defendant took over the contract of Resources intermediaries Nigeria Ltd. He attended meeting at the 1st defendant office in Port Harcourt on the instruction and direction of the 2nd defendant. The letter of dismissal exhibit 5 was issued to him after the meeting at the 1st defendant’s office in Port Harcourt. But the letter of dismissal was withdrawn and replaced with letter of termination following letter from the claimant’s counsel to the 1st defendant.
9. The claimant stated that he was accused of involvement at parallel banking. He stated that he was aware there was investigation by internal auditors and he was not found wanting. The letter of termination stated that he was terminated because he failed to raise alarm over suspicious transaction carried out by his colleague and not parallel banking. That he was not aware of suspicious transaction. I was not aware that internal auditors report recommended indefinite suspension. That he was dismissed because of hatred. That he knows Egede Endurance a staff of the 2nd defendant at Eket branch. She was not present at the meeting he attended. When he attended meeting he was not aware of any report by her to 1st defendant.
10. Under cross examination by counsel for the 2nd defendant Mr. Ekasan, CW1 stated that since his termination by 1st defendant he was not transferred to the 1st defendant. He was issued ID card by the 2nd defendant and he was told he was their contract staff. Witness confirmed receipt of exhibit C3, he insisted that he was staff of 2nd defendant as there was no transfer to 1st defendant. There was also no letter of employment or transfer issued to him. And he was told he was their contract staff. There was also no letter of employment or transfer from 2nd defendant. The 2nd defendant accepted him as her staff. Three staffs were issued similar letters, but they have been converted to regular staff as has always been their practice. The manipulation was because he does not have letter of employment. The 2nd defendant provided his information to the 1st defendant who uses it to suspend him. The 2nd defendant instructed him to attend 1st defendant meeting on 14/8/2019, at Port Harcourt. The outcome of the meeting being issuance of a dismissal letter by the 1st defendant being agent of 2nd defendant and who has nothing to do with the claimant’s employment.
11. One Eweama Veronica testified as DW1 in defence of the 1st defendant. DW1 after identifying her witness statement on oath of 11/6/2020 adopted same as her evidence in proof of the 1st defendant’s defence. The front loaded documents mentioned in the pleading of the 1st defendant were tendered in evidence through DW1. Ten documents were tendered and admitted in evidence. They were marked as exhibit DW1A – DW1K.
12. Under cross examination by counsel for the claimant, DW1 testified that since the commencement of this proceedings this is the first time she came to Calabar. On 11/6/2020, she was at Port Harcourt that was where she deposed to her witness statement on oath. She cannot remember where she signed her statement on oath, is either in her office or in the lawyer’s office. She is in court to testify as employee of the 1st defendant. I am here because of what my employer told me. I was present at fair hearing. DW1, continued her testimony that claimant was not at all material time employee of the 2nd defendant. He was transferred to the 1st defendant in May 2019. The 1st claimant got engagement letter from 2nd defendant that south-south has been taken away from Resource intermediaries Nigeria Ltd and given to the 1st defendant with effect from 1/7/2019. The names of outsourced staff were sent to 1st defendant by the 2nd defendant to the 1st defendant. Some documents were sent to staff to supply information while staffs were in the process of supplying information; a mail came from the 2nd defendant that staffers of Eket branch should be placed on indefinite suspension. The claimant was not issued with letter of employment because he was on suspension as at the time. The 1st defendant was right to issue letter of suspension because the claimant was transferred to 1st defendant. She does not know whether there was a relationship between Resource Intermediaries Nigeria Ltd and 1st defendant. But, they are independent. DW1 continued her evidence that upon receipt of claimant’s solicitor’s letter the letter of dismissal was withdrawn and a termination was issued. She also testified that the claimant was not a supervisor. She was aware that the Branch Manager, supervisor and other staffs were suspended including the claimant. She was aware the suspended officers were recalled. The 1st defendant is not one of the auditors of the 2nd defendant. She stated that Endurance was the one that indicted the claimant. The claimant made statement at the hearing but is not before the court.
CROSS EXAMINA TION OF DW1 by Goldie Moses Ekasah, Esq; counsel for the 2nd defendant.
13. DW1 stated that she is Senior Executive Officer of 1st defendant. The 1st defendant got mail from 2nd defendant to dismiss Chukwu Chinze and the claimant and the rest termination. The Auditors report was forwarded to the 1st defendant by the 2nd defendant.
14. One Chinenye Coco-Bassey, testified as DW2 in defence of the 2nd defendant. DW2 after identifying her witness statement on oath of 22/6/2020 adopted it as her evidence in defence of the 2nd defendant. DW1 also tendered exhibit DW2A in evidence.
15. Under cross examination by the claimant’s counsel DW2 stated that she is an employee of the 2nd defendant in Calabar Branch she did not start her employment as a contract staff. She has letter of employment. She was in court base on what she was told. DW2 was shown her witness statement on oath of 23/6/2020 and she stated she signed it in her office. That the claimant was not employed by the 2nd defendant. The claimant is employee of the 1st defendant. She does not have letter of employment of the claimant issued to him by the 1st defendant she is not aware of any relationship between Resource Intermediaries Nigeria Ltd with the 1st defendant. She was not aware of any understanding between the claimant and the 2nd defendant. She is not aware of exhibit C3. It is true after termination of Resource Intermediaries Nigeria Ltd by the 2nd defendant, the claimant continued to work for the 2nd defendant.
16. She is aware claimant’s lawyer wrote to the 1st defendant asking for withdrawal of letter of dismissal based on the letter the 1st defendant withdrew letter of dismissal of the claimant from service. She is not aware claimant was dismissed on instruction of the 2nd defendant based on the refusal of claimant to report suspicious transaction claimant’s account. I am aware claimant and branch manager were suspended on suspicious transactions. I am not aware that the staffs involved in the illegal activity were handed over to the police. She is not aware of practice of bank outsourcing and offers some years back. Being a new staff she is not aware banks and 2nd defendant do employment through 3rd party. She agreed some staff on contract were made full staff after meeting requirement. She is not aware claimant went Port Harcourt to meet with 1st defendant. She is not aware of the reasons of termination.
CROSS EXAMINTION BY AMADI, counsel for the 1st defendat.
17. DW2 stated that the 1st defendant employs staff for the 2nd defendant. The claimant was employed by the Resource Intermediaries Nigeria Ltd and posted to 2nd defendant. The Resource intermediaries Nigeria Ltd had its contract with 2nd defendant terminated and Resource Intermediaries Nigeria Ltd, terminated claimant’s employment. That also end claimant’s employment with the 2nd defendant.
18. On 18/5/2022, Rev. D. O. Torthy, adopted the final written address of the 1st defendant as his argument. for the 2nd defendant Goldie Moses Ekasah, adopted the final written address of the 2nd defendant and the reply to the claimant’s address as his argument. While Albert Ben, Esq; counsel for the claimant adopted the final written addresses filed by the claimant as his argument in this matter.
THE SUBMISSION OF THE 1ST DEFENDANT:
19. The 1st defendant formulated twin issue for determination, to wit:-
1. Whether this Suit is competent in the first instance for the Court to assume jurisdiction upon failure by the Claimant to join its employer Resource Intermediaries (Nig.) Limited, as a Proper Party for the effectual & effective adjudication of its Claim.
2. Whether EXHIBIT C3 “TRANSFER OF SERVICE DATED 1ST JUNE 2019” terminated the Claimant’s Job with Resource Intermediaries (Nigeria) Ltd.
ARGUMENT ON ISSUE 1
20. Whether this Suit is competent in the first instance for the Court to assume jurisdiction upon failure by the Claimant to join its employer Resources Intermediaries (Nig) Limited, as a Proper Party for the effectual & effective adjudication of its Claim.
21. In arguing this issue counsel refers to Paragraph 4 of the Claimant’s Witness Statement on Oath dated 30th day of January, 2020 wherein the Claimant stated thus:
“That I was employed as Transaction Processing Assistant 1 on 29th April, 2014 through the Agent of the 2nd Defendant known as Resource Intermediaries (Nigeria) limited. I further state the 1st Defendant, no doubt, is a stranger to my employment with the 2nd Defendant.”
22. It is submitted that in this suit, it has admitted in evidence that, the claimant was employed by Resource Intermediaries (Nigeria) Limited, through an offer of employment dated 29th April, 2014, as its staff. In support of this argument reliance was placed on exhibit C2 “Offer of Employment” with specific reference to paragraph 2 which provides as follows:
“Please note that you are employed by the company to execute its contract with Keystones Bank and that this employment does not make you a staff of the bank. Consequently, your conditions of service are not identical to those of the staff of the bank. You are hereby assigned to work at keystone Bank Eket Branch, Akwa Ibom.”
23. It is the submission of counsel that the Claimant is neither an employee of the 1st Defendant and the 2nd Defendant, but rather was employed by Resource Intermediaries (Nigeria) Limited. The Claimant failed to institute an action against Resource Intermediaries (Nigeria) Ltd or join Resource Intermediaries as a proper party to determine its claim bordering on termination but rather instituted an action against the 1st Defendant and the 2nd Defendant who are not proper parties for the purposes of determining its claim.
24. Counsel submitted that the Claimant in paragraph 4 of his Witness deposition dated 30th January, 2020 stated that the 1st defendant is but a stranger to his employment with the 2nd defendant. The Claimant also in his Witness Statement on Oath in support of its Reply to the Statement of Defence of the 1st Defendant dated 28th of July, 2020 in paragraph 4 admitted in evidence that he was employed through the agent of the 2nd Defendant known as Resource Intermediaries (Nigeria) Limited, but not by the 1st Defendant and that the 1st Defendant has no business with my employment under whatever conjecture or guise.
25. Counsel argued as a preliminary point, the 1st Defendant submits that it is not a proper party to this suit, rather the Claimant failed to join Resource Intermediaries (Nigeria) Limited who are his employers to enable the court assume jurisdiction and determine its claim. In support of this submission counsel refers to the following cases of AWONIYI VS REG. TRUSTEE OF AMORC (2000) 10 NWLR (PT 676) 522; JIMOH Vs ONYINLOYE (2006) 15 NWLR (PT 676) 522; JIMOH VS OYINLOYE (2006) 15 NWLR (PT 1002) 392; MOZIE VS MBAMALU (2006) 15 NWLR (PT 1097) 84; where the court held thus “there is no doubt that because parties are an integral part of any judicial proceedings, where there are no proper parties in any action pending in court, it has no jurisdiction to try it.
26. Counsel submitted that in determining a proper party before a court and its effect on the whole proceedings, the Supreme Court in Bakara V Ajose-Adeogun Supra at 643 paras C-D had this to say “It is now fairly settled law that it is the cause of action as endorsed on the writ that determines the proper parties before the court. And it is trite law that it is only when proper parties are before the court that the court will be competent to adjudicate on the suit otherwise the court shall be incompetent. In other words when proper parties are not in court there is lack of jurisdiction and locus standi as the action is incompetent. “per MSHELIA, JCA CP. 27, Paras A-D). Counsel also refers the court to the case of Kayode Bakare & Ors V Chief Ezekiel Ajose-Adeogun & Ors (2014) LPELR 25024 (SC).
27. It is the submission of counsel that the law is trite, that for a court to be competent and have jurisdiction over a matter, proper parties must be identified, and shown to be proper parties to whom rights and obligations arising from the cause of action. The question of proper parties invariably, is such an important question as same affects the jurisdiction of the court and goes to the root of the suit in limine. It is the existence of the proper parties that cloths the court with jurisdiction. Thus, where one of the parties or both are not proper parties before the court, the court lacks jurisdiction to hear the suit. In support of this submission counsel relied on the cases of Peenok Investment Ltd V Hotel Presidential Ltd (1982) 4 NCLR 122; EHIDIMHEN V MUSA (2000) FWLR (Pt.21) 930; GOODWILL & TRUST INV LTD V WITT AND BUSH LTD (2011) ALL FWLR (Pt.576) 517, AKINDELE V ABIODUN (2010) ALL FWLR (Pt.518) 894, 913.
28. Issue two: whether exhibit C3 “TRANSFER OF SERVICE’’ DATED 1ST JUNE 2019” terminated the Claimant’s Job with Resource Intermediaries (Nigeria) Ltd. In arguing this issue counsel refers to exhibit C3 “Transfer of Service” wherein the Claimants employer Resource Intermediaries (Nigeria) Ltd informed the Claimant thus:
“We have been advised by our client, Keystone Bank Limited of the Management’s decision to realign its strategic focus with effect from 1st July, 2019. Consequently, your services seconded to Keystone Bank limited Eket Branch will be transferred to another Service Provider as may be determined by the Bank with effect from July 1st, 2019. This letter therefore serves as a one month notice for disengagement of your service with Resource Intermediaries Limited.”
29. Counsel argued that, it is quite clear from the wordings of Exhibit C3 “Transfer Letter” that the claimant was given a one month notice of disengagement of service by Resource Intermediaries limited his employers and was fully compensated by Resource Intermediaries Limited for his services. It is submitted that the Claimant’s employment was legally terminated by Resource Intermediaries (Nigeria) Limited effective from 1st July, 2019.
30. According to counsel DW1 during her evidence in chief on the 18th day of October, she informed this honourable court that the 1st defendant took over outsourcing job from Resource Intermediaries (Nigeria) Ltd employers of the Claimant following the termination of Resource Intermediaries Contract with the 2nd Defendant. to support this argument counsel refers to exhibit DW1G “RE: ENGAGEMENT AS OUTSOURCED SERVICE PROVIDER CONTRACT DATED 14TH MAY 2019 AND EXHIBIT DW1I “PROVISION OF SUPPORT SERVICES AGREEMENT BETWEEN SEPTAGUS CONSULTING NIGERIA LIMITED AND KEYSTONE LIMITED.
31. It is submitted that the Claimant despite termination of service by Resource Intermediaries Nigeria Limited, the claimant continued working with bank, 2nd defendant in disobedience of the one notice of disengagement of service and was found to be involved in the criminal act of parallel Banking which was dominants amongst staff at Eket branch which act led to the issuance of Indefinite Suspension Letter by the 1st defendant on the 19th July, 2019; followed by issuance of Letter of Dismissal from Employment on the 19th December, 2019, which said letter was later recalled and replaced with Letter of Termination of Employment dated the 24th December 2019 following letter from the Claimants solicitor dated 23rd December, 2019. In support of this submission counsel relied on exhibit C4; Exhibit C6; Exhibit DW1H; Exhibit DW1D; Exhibit DW1F; and Exhibit DW1J.
32. Counsel refers to reliefs iv and vi of the claimant’s claim and submitted that these claims are in the realm of special damages, such that they are quantifiable in money’s worth. As in AHMED & ORS Vs. CBN (2012) LPELR-9341 (SC) PAGE 21 PARAS. B-E, the Supreme Court defined special damages thus:
“Special damages have been defined as those which are the actual but not necessary, result of the injury complained of and which in fact follow it as a nature; and proximate consequence in the particular case, that is by reason of special circumstances or conditions. To support his submission counsel relied on the case of TWIN COACH CO. Vs CHANGE VOUGHT ARCRAFT INC. 2 STOREY 588, 163 A-2D 278, 286. Such are damages which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonably foreseeable. Special damages must be specifically pleaded (Black’s Law dictionary, sixth edition, page 392)”. Counsel also refers to the case of KOPER CONSTRUCTION LIMITED Vs JOHNSON KOLEOLA EKISOLA (2001) LPELR – 1703 (SC) PAGE 61 PARAS. A-D.
33. Being special damages, the law is that special damages must be specially pleaded and proved, if the Claimant is to succeed. In AJIGBOTOSHO Vs RCC (2018) LPELR 44774 (SC) 9 PARAS. B-C, the supreme court held thus:
“For a claim in the nature of special damages to succeed, it must be Strictly proved and the court is not entitled to make its own estimates on such a claim, it should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed to enable him prepare his defence” (Per. Bage, JSC).
34. And in ONYIORAH Vs. ONYIORAH (2019) LPELR-49096 (SC) PG PARAS. E-F, the Supreme Court stated the position of the law as to how to plead special damages thus;
“Special damages must be specially pleaded and strictly proved by the Claimant. To succeed in a claim for special damages, the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the court how the sum claimed as special damages was quantified.
35. The Claimant in the entire Witness Deposition on oath did not depose to facts in support of reliefs iv and Vi. In addition, the claimant did not produce any shred of evidence to show how the sums claimed in the said reliefs were quantified. This failure with respect is fatal to the claim.
36. Counsel contended without prejudice to the above submissions, the law is settled that the burden of proof in civil proceeding rests on the person who desires the court to give judgment in his favour, in respect of any legal right, which is the subject of disputation between the parties. By Section 132 of the Evidence Act 2011, the burden of proof is on that person who will fail, if no evidence at all was given on either his side. In this respect, the legal burden of proof lies squarely on the shoulders of the Claimant.
37. Counsel submitted that general damages are damages presumed to flow on alleged wrong naturally, however, it is grantable or awarded at the discretion of the court. This discretion is exercisable judiciously and judicially. In support of this reliance was placed on the case of N.B.C.I v. DAUPHIN (NIG) LTD (2004) 16 NWLR (Pt.1432) P.90 @ P.111 – 112, Paras H-A.
38. The 1st defendant submitted that the Claimant did not show in its Witness Deposition on Oath, that it suffered any alleged loss as a result of the termination by Resource Intermediaries by the letter of Transfer of Service dated 1st June, 2019.
39. According to counsel, the Claimant’s employment and termination was consequent upon the Contract of Outsourcing Job of Resource Intermediaries (Nigeria) Limited whose said contract with Keystone Bank Limited was terminated and awarded to another service provider being the 1st Defendant.
40. The Claim for cost of Litigation was not also pleaded save as a relief in paragraph Vii. The law as stated by the courts in plethora of cases, is that to establish claim for instituting legal action, Solicitors fees, a Claimant should produce receipts made to its solicitors or at least call the said solicitor to give evidence to the fact that the ₦1,000,000 was expanded in instituting this action.
41. It is submitted that the court is not a father Christmas to make award of claims that was pleaded in evidence neither was there any documentary evidence tendered in proof. It is submitted the Claimant during his evidence and in the course of cross examination did not lead evidence as to incurring the sum of ₦1,000,000.00 as cost of litigation.
42. In concluding his submission counsel urged the court to resolve the issues raised for determination in favour of the 1st Defendant and dismiss all the claims in this suit as the issue of jurisdiction of this Honourable court is in question.
THE SUBMISSION OF THE CLAIMANT IN RESPECT OF THE 1ST DEFENDANT:
43. The claimant submitted three issues for resolution, they are:-
1. Whether or not the 1st Defendant, having not employed the Claimant had the vires to dismiss and/or terminate the employment of the Claimant by whatsoever guise.
2. Whether or not, the Witness Statement on Oath of DW1 who testified for the 1st Defendant is competent in the light of the decision in the case of BUHARI V INEC (2008) 12 SC (PT. 1) 1 and section 112 of the Evidence Act, 2011.
3. Whether or not, and from the totality of the cogent and uncontroverted evidence before the court, the Claimant is entitled to the Reliefs sought against the Defendants jointly and severally in this matter.
ARGUMENT:
44. Issue 1 - Whether or not the 1st Defendant, having not employed the Claimant, had the vires to dismiss and/or terminate the employment of the Claimant by whatsoever guise. It is the submission of counsel that by no stretch of imagination could it be said that the 1st Defendant was the employer of the Claimant there being no piece of evidence from the 1st Defendant to show that it ever engaged the services of the Claimant. Exhibit C2 is the letter of offer of employment by Resource Intermediaries Nigeria Ltd. While Exhibit C3 captioned 'Transfer of Service' is the letter from the said Resource Intermediaries Ltd, informing the Claimant of the decision of the 2nd Defendant to realign its strategic focus etc.
45. Upon issuance of the said Exhibit C3 herein, Claimant, no doubt, continued with his services for the 2nd Defendant without any restraint as pleaded under paragraph 6 of the Statement of Facts and corroborated by DW1 and DW2 under cross-examination, who testified for the 1st and 2nd Defendants respectively. It is worthy of note that as at the time of issuing of Exhibits C4 and C5, there was no form of transfer of the services of the Claimant to any service provider, not even to the 1st Defendant herein, as such, no letter of employment from the 1st Defendant was ever issued to the Claimant. This is admitted by DW1 under cross-examination who could not produce any evidence of offer of employment of the Claimant. On purport of corroboration, counsel refers to the case of FOLORUNSO V STATE (2020) ALL FWLR (PT. 1058) 896 at 914, paragraphs E-F, where the Supreme Court held inter alia: “The purpose of corroboration is merely to confirm and support a piece of evidence given that is credible and admissible...” counsel also refers the case of AFOLALU V THE STATE (2010) ALL FWLR (PT. 538) 812.
46. That despite the evidence of DW1 under cross-examination, which, no doubt, corroborated the fact that there was no letter of offer of employment issued by the 1st Defendant to the Claimant, when she admitted that the Claimant was not issued with letter of employment by the 1st Defendant. Curiously, still under cross-examination, DW1 said that the 1st Defendant had the right to issue the Claimant with letter of suspension followed by dismissal letter Exhibits C4 and C5 respectively. It is submitted that one cannot place something on nothing and expect same to stand. To buttress his submission counsel relied on the case of MACFOY V UAC (1961) 3 NWLR 1405 at 1409. It is submitted by counsel that in this case, the 1st Defendant who did not employ the Claimant had no right/power to issue exhibits C4 and C5 (suspension letter and dismissal letter) to the Claimant. Accordingly, Exhibits C4 and C5 are awful, wrongful and unlawful; they are of no basis, there being no foundation ab initio and are null and void. In the case of K. S. J. C. VS. TOLANI (2020) ALL FWLR (PT.1025) 480 at 503, paragraphs D-E, the Supreme Court, relying on the Black’s Law Dictionary, 8th Edition, page 1644 at 1574, held thus "Wrongful" (i) characterized by unfairness or injustice, (ii) contrary to law or unlawful “(wrongful termination)” and “unlawful.” “(1) Not authorized by law, illegal (2) Criminality punishable (3) Involving moral turpitude”. The court went on to say inter alia: “The definitions above are so weighty that they cannot apply as in this case at hand be treated with levity or in a simplistic manner...”
47. On the bindingness of employer by prescribed, procedure for termination of employment, the Supreme Court in K. S. J. C. VS TOLANI (Supra) at 510, paragraphs E-F, held that: “Where the procedure for employment and discipline is clearly spelt out in the relevant statute, the employer must comply strictly with its provisions in dismissing its employee or terminating his employment.” also reference was made to the case of COMPTROLLER GENERAL OF CUSTOMS & ORS V GUSAU (2017) ALL FWLR (PT. 911) 422; BAMIGBOSE V UNILORIN (1999) 10 NWLR (PT. 622) 290. In this case, there was no existing employment or employer/employee relationship whatsoever. Therefore, the act of the 1st Defendant is contrary to the known international best practices as far as issue of employment is concerned. Counsel went on to argue that in this case, there is no doubt the fact that 1st Defendant is a stranger to the employment of the Claimant and had no right to suspend and/or dismiss him, having no tangible evidence before the court to justify her dismissal of the Claimant on the purported ground of failure to raise an alarm on the suspicious transactions on customers’ accounts by his colleagues... Exhibit C5, as if Claimant was employed as a supervisor or security officer.
48. It is also the submission of counsel that from the pleadings of the Claimant as per the Statement of Facts, it is clear that upon the disengagement of the services of the claimant by Resource Intermediaries Ltd as per Exhibit C3, the Claimant continued to work for the 2nd Defendant as there was no further transfer of his services to any other service provider including the 1st Defendant. There was no letter from the 2nd Defendant to the Claimant to that effect, neither was there any letter of employment to the Claimant from the 1st Defendant as corroborated by the DW1 and DW2 respectively under cross-examination. The only letter of employment is exhibit C2, which the Resource Intermediaries Ltd issued to the Claimant. None from the 1st Defendant who issued Exhibits C4 and C5 (suspension letter and dismissal letter) wrongly, illegally and unlawfully to the Claimant whom it did not employ.
49. It is trite law that an employer has the right to terminate the employment of its employee; in this case, the 1st Defendant who did not employ the Claimant, is no doubt, a stranger as far as the employment of the Claimant is concerned, and had no right whatsoever to tamper and/or dismiss the Claimant from his employment with the 2nd Defendant who retained his services after exhibit C3 as per the evidence of DW1 and DW2 under cross-examination. Counsel contended that the action of the 1st Defendant amounted to an unfair labour practice which should be deprecated by this Honourable Court.
50. According to counsel, curiously, the 1st Defendant, in order to justify her illegal and unlawful act of dismissing the Claimant whom she did not employ or have anything to do with, pleaded a ‘Welcome Address’ purportedly sent to all staff including the Claimant to portray the fact that the said address is akin to employment letter. While in the dismissal letter, she stated as reason for dismissal being the Claimant’s failure to raise an alarm on the suspicious transactions on customers’ accounts by his colleagues at the Eket Branch he was working at the material time. See Exhibit C5. The question is does a purported ‘Welcome Address’ signify and/or take the place of a formal and known employment letter? The response is a capital NO. Never, as far as employment matter is concerned; ‘Welcome Address’ is not employment letter because it does not contain the necessary stipulations/conditions of engagement, which is to bind the parties, that is, the employer and the employee. It is not known to law.
51. According to counsel, defendants’ reliance on the purported ‘Welcome Address’ from the 1st Defendant as being the appointment of the Claimant by the 1st Defendant which of course is irrelevant and of no value/moment. It is submitted that the court cannot establish a case merely on the basis of conjecture or speculation, the said ‘Welcome Address’ from the 1st Defendant being a mere conjecture. On this submission counsel relied on the Supreme Court case of ADEGBITE V STATE (2018) ALL FWLR (PT. 951) 1855 at 1881, paragraphs C-D, where it was held that: “It is trite principle also that a court should not decide a case on mere conjecture or speculation. Courts of law are courts of facts and laws. They must avoid speculation.” See also, OGUONZEE V STATE (1998) 5 NWLR (PT. 551) 521; ORHUE V NEPA (1998) 7 NWLR (PT. 557) 187. Arising from the foregoing decided cases, counsel submitted that the purported ‘Welcome Address’ from the 1st Defendant, being a mere conjecture/speculation, holds no water as far as this matter is concerned as the fact remain and it is irresistible that the 1st Defendant is not the employer of the Claimant and had no right to dismiss him having not employed him in the first instant. This, no doubt, constitutes unfair labour practice. Counsel urged the court to so hold!
52. Issue 2 – Whether or not, the Witness Statement on Oath of DW1 who testified for the 1st Defendant is competent in the light of the decision in the case of BUHARI V INEC (2008) 12 SC (PT. 1) 1. In arguing this issue counsel submitted that DW1 testified for the 1st Defendant on 18/10/2021 after adopting her Witness Statement on Oath. Under cross-examination, she admitted the fact that she was in the office of the 1st Defendant’s Counsel on 11/06/2020 where she signed her Witness Statement.
53. On the position of the law where Witness Statement on Oath as in this case are sworn in the office of the Solicitor or elsewhere apart from the Court’s Registry; it is settled law that such Witness Statement is patently and grossly incompetent and cannot be accorded any probative value in law. Counsel submitted that the Witness Statement on Oath of the DW1 sworn to in the office of the 1st Defendant on 11/06/2020 is without much ado incompetent and cannot be reckoned with in law and by this Honourable Court in this matter. To say the least, the sworn evidence of the 1st Defendant was already dead on arrival to the Court’s Registry, and the court is bereaved of 1st Defendant’s evidence-in-chief in this matter.
54. To add strength to this submission, counsel call to aid the provision of section 112 of the Evidence Act 2011, which states thus: “An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner, or before a partner or clerk of his legal practitioner.” In support of this statutory position, reference was made to the Supreme Court decision in the case of BUHARI V INEC (2008) 12 SC (PT. 1)1, where it was held thus: “The provision of Section 83 of the Evidence Act (now section 112 of the Evidence Act, 2011) is clear and unambiguous and appears to me that the word ‘shall’ is clearly mandatory. These depositions were made in favour of the petitioner, General Mohamadu Buhari. Mr. Keonu is no doubt, a Notary Public, but he is a legal practitioner representing General Mohamadu Buhari in this petition.” at pages 289-290, the court went further to hold inter alia; “... it follows therefore that since the depositions did not meet the requirements of the law, they were inadmissible and when admitted the admission of the inadmissible evidence can be set aside by the court when it comes to writing the judgment or where it fails to do so, the duty to reject the evidence then fall on the appellate court...” reference was also of the Court of Appeal decision in EROKWU V EROKWU (2016) LPELR 41515. Counsel submitted that the law allows this Honourable Court the power to set aside in the course of writing this Judgment, the evidence-in-chief of DW1 as contained in incompetent Witness Statement on Oath.
55. Arising from the above cited decisions/the statute, counsel submitted that the Witness Statement on Oath of the DW1 is in law incompetent as the court cannot in the light of the apex court decision herein accord probative value to same. The end result therefore is that the Witness Statement on Oath having being sworn by DW1 in the office of her solicitors as admitted by her in the open court, is worthless and the court is respectfully called upon to so hold as there is no evidence properly so-called from the Defendants to support their defence against the claims put forward by the Claimant. With the admission of the said Witness Statement must be set aside, same being inadmissible in law. Counsel urged the court to so order.
56. It is submitted going by the decided authorities on incompetent Statement on Oath, the Defendant have no valid evidence known to law to controvert and/or contradict the evidence of the Claimant on the cogent facts/evidence adduced by the Claimant in this case. On propriety of court presuming the existence of facts from proved facts, the Supreme Court in the case of ONONUJU V STATE (2015) ALL FWLR (PT. 810) 1198 at 1227, paragraph 13, held thus: “It is settled law that the court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts.” Reliance was also placed on section 145(2) Evidence Act, 2011.
57. Issue 3 – Whether or not and from the totality of the cogent and uncontradicted evidence before the court, the Claimant is entitled to the reliefs sought against the Defendants jointly and severally in this matter. Counsel submitted that the claimant in his evidence and facts before the court as contained in his Statement of Facts and Witness Statement on Oath coupled with his evidence under cross-examination has no doubt discharged the first burden placed on him by law, having led cogent and unassailable evidence to proof/establish his case against the Defendants herein and is accordingly entitled to the reliefs sought against the Defendants jointly and severally. In support of this contention counsel relied on section 131 of the Evidence Act, 2011 and the Supreme Court case of CHEMIRON INT’L LTD. V STANBILINI VISINONI LTD. (2018) ALL FWLR (PT. 965) 48 at pages 70-71, paragraphs H-C. See also the case of TEWOGBADE V AKANDE (1968) NWLR 404 at 408, where the Supreme Court, as per Eso, JSC held thus: “The position therefore, is this, in a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of these facts. Once that party produced the evidence in evidence, that would satisfy the jury, then the burden shifts on the party against whom judgment would be given if no more evidence were adduced...”
58. On how the court determines when a party (like the Defendants herein) fails to discharge the evidential burden on him, counsel refers to the case of IRONKWE V UBA PLC (2017) ALL FWLR (PT. 879) 650 at 685, paragraphs E-F, where it was held that: “Where 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 the mere probable position, the party who has the burden of proof has failed to discharge the evidential burden.” See also the Supreme Court decision in OSAWARU V EZEIRUKA (1978) 6-7 SC 135; MOZIE V MBAMALU (2006) ALL FWLR (PT. 341) 1200.
59. It is further submitted that in this case, there is no document in the form of letter of offer of employment and/or transfer of service from the 1st Defendant to the Claimant suggesting that the 1st Defendant is the employer of the Claimant. On documentary evidence, counsel relied on the case of ZAKIRAI V MUHAMMED (2018) ALL FWLR (PT. 964) 1913 at 1986-1987, paragraphs H-A, where the Supreme Court stated that: “Documents when tendered and admitted in court are like words uttered and admitted and do speak for themselves. They are even more reliable and authentic than words from the vocal cod of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.” In this case, there is no such document.
60. Counsel further submits that in this case, there is no such document of employing the Claimant by the 1st Defendant where this court can rely on. It is also trite law that he who alleges must prove as was decided in the case of OKUNBULE V OYAGBOLA (1990) 4 NWLR (PT. 147) 723 at 736, paragraphs C-D, where the Supreme Court held inter alia: “ It is well stated that where a party has alleged the existence of the fact... the onus is on him to show the existence of such facts...” In the circumstance, the Claimant’s case stands unchallenged, as he has been able to discharge the onus on him. The Defendants have failed to lead any acceptable/tangible evidence to show the employment relationship between the 1st Defendant and the Claimant, rather, the 2nd Defendant whom the Claimant was working for, through her witness, DW2 confirmed under cross-examination that at the material time the 1st Defendant issued letter of dismissal (Exhibit C5) to the Claimant, Claimant was working for the 2nd Defendant, when there was no evidence that the Claimant was the 1st Defendant’s employee. On presumption of facts, counsel place reliance on section 145(1)(2)(3) of the Evidence Act, 2011.
61. According to counsel in the light of the foregoing, there is no doubt the fact that Claimant has proved the facts as per his pleadings/evidence before the court and has accordingly and satisfactorily discharged the burden placed on him by law as regards the standard of proof required in civil matters of this nature, as was decided in the case of INEC V RAY (2004) 14 NWLR (PT. 892) 92, held No. 13, where it was held that: “The standard of proof required in civil matters of proceedings is proof on balance of probabilities or preponderance of evidence in compliance with the dictates of sections 135 and 136 of the Evidence Act, (as at then). On the phrase “Preponderance of evidence” or “balance of probabilities”, the court defined it to connote the evidence or case of the party on whom it lies the burden of proof which is more likely to be true or more probable than that of the adverse party.”
62. Counsel posited that on uncontroverted, unchallenged, and uncontradicted evidence of the Claimant, the court’s attention is drawn to the Supreme Court authority in the case of YUSUF V OBASANJO (2005) 18 NWLR (PT. 956) 96, where it was held that: “The court is bound to accept the uncontroverted, uncontradicted and unchallenged evidence of a witness on an issue.” Also, in A.C.B V EMOSTRADE (2002) 8 NWLR (PT. 770) 50 at 516, paragraphs A-C, the Supreme Court held inter alia: “It is fundamental procedural requirement that when issues are joined on the pleadings, evidence is needed to prove them. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence when there is no such evidence, the issue must be resolved against him and the consequence of that are so decisive of the case presented as the materiality of that issue...” Arising from the foregoing, it is submission of counsel that in this case, the Defendant herein have failed to satisfy this fundamental procedural requirement, having failed to present any valuable evidence known to law in defence of her wrongful, unlawful and unwarranted act against the Claimant. Counsel argued that the claimant no doubt, has successfully and through material and cogent and unassailable evidence prove his case against the Defendants. Counsel urged the court to grant the reliefs sought by the Claimant against the Defendants with substantial costs.
REACTION TO THE 1ST DEFENDANTS FINANAL WRITTEN ADDRESS:
63. The claimant responded to the twin issues argued in the 1st defendant’s final written address. The twin issues are:-
(a) Whether this suit is competent in the first instance for the court to assume jurisdiction upon failure by the Claimant to join its employer Resources Intermediaries (Nig) Ltd as a proper party for the effectual and effective adjudication of its claim (sic).
(b) Whether Exhibit C3 “Transfer of Service dated 1st June 2019” terminated the Claimant’s job with Resource Intermediaries (Nigeria) Ltd. The two issues formulated by 1st Defendant’s counsel shall be jointly responded to.
64. It is the submission of counsel for the claimant that the two issues formulated by the 1st Defendant are laughable and of no moment as far as this matter before this Honourable Court is concerned. Going by the issues formulated herein, there is no doubt, the fact that the 1st Defendant is in tandem with the Claimant to the effect that the 1st Defendant is a stranger to the employment of the Claimant having nothing in form of evidence to back-up the purported dismissal of the Claimant by her. Consequently, the act of dismissing the Claimant is illegal, wrongful, unwarranted, and contrary to best labour practices.
65. On the argument bordering on the suit being incompetent and the jurisdiction of the court to adjudicate on same, counsel contended that it is preposterous for the 1st Defendant’s counsel at this stage to attempt to contest the jurisdiction of this Honourable Court to adjudicate on this straightforward matter before the court. It is settled law that a party cannot approbate and reprobate at the same time. See ADELUSI V LAGOS STATE (2016) ALL FWLR (PT. 826) 461 at 467-468, paragraphs H-F. Also, by the provision of section 169 of the Evidence Act, 2011, the 1st Defendant is estopped from raising the issue non-joining of Resource Intermediaries (Nig) Ltd as proper party whom Claimant has no cause of action against in the first instance. 1st Defendant’s counsel has not advanced argument on why the Resource Intermediaries should have been made a party in this suit. This is in an attempt at having the court to speculate.
66. Besides, the 1st Defendant willingly and unequivocally submitted to the jurisdiction of this Honourable Court and took part in all proceedings relating to this matter to this final stage before waking-up from their slumber to attempt to contest the issue of non-joinder of supposed proper party which they curiously submitted as robbing the court of jurisdiction. This argument does not in any way avail the 1st Defendant. It is too late in the day! We accordingly, place reliance on the case of SAUDE V ABDULLAHI (1989) 4 NWLR (PT. 616) 387 at 425, paragraphs E-F held inter alia: “The court have consistently held in several decided cases that an objection to procedural irregularity in an action, to be discountenanced must be taken at the commencement of the proceedings or at the time when the irregularity arises... it will be too late and against the interest of justice to raise and rely on the objection.”
67. On the purported argument on non-joinder of a proper party, it is submitted that assuming but in no way conceding the fact that the Resource Intermediaries (Nig) Ltd is a proper party which the 1st Defendant is contesting was not joined, for whatsoever reason only known to the 1st Defendant, the law is settled in plethora of cases by the apex court that non-joinder of party cannot vitiate the proceedings of the trial court. on this submission counsel refers to the decision of the Supreme Court decision in BELLO V INEC & ORS (Supra) at pages 156-157 where the court while referencing the decision in OKEYE V NIGERIAN CONSTRUCTION AND FURNITURE CO. LTD (1991) 7 SC (PT. III) 33; held that “A failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of lack of jurisdiction or competence of the court.” At page 157, the court further held inter alia: “The position of the law is well settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.” See PEENOCK INVESTMENT LTD V HOTEL PRESIDENTIAL (1982)12 SC 1.
68. It is curious, no doubt, for the 1st Defendant’s counsel to submit that the 1st Defendant is not a proper party to this action before the court. The question is, if the 1st Defendant is not a proper party, who then should qualify as the proper party? Who is liable for the wrongful act of the 1st Defendant who unjustly and arbitrarily terminated the employment of the Claimant based on frivolous, unjustifiable and unfounded facts. On who a proper party to a suit is, to support this contention counsel relied on the case of M. B. P. V D. (W. A.) (NIG) LTD (2015) ALL FWLR (PT. 781) 1443 at 1477, paragraphs B-E, where it was held inter alia: “It is settled law that it is the prerogative of a plaintiff to determine the defendants in suit. The liability of each of the parties to the suit would be determined having regard to the pleadings and evidence led by the Claimant in the light of applicable laws. Therefore, in order to determine whether a party is a proper defendant to a suit, all the court needs to do is to examine the claim of the plaintiff before the court. It is the plaintiff’s claim that gives him the right to initiate the action for the alleged wrongful acts...” (Underlined supplied for emphasis) See also BELLO V INEC & 2 ORS (2010) 2-3, SC (PT II) 128 at 196.
69. The Supreme Court in COTECNA INT. LTD V CHURCHGATE NIG LTD & ANOR (2010) 12 SC (PT. II) 140 SC, also held that “It is trite law that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach...” In this case before the court, Claimant properly and rightly identified the proper parties who are before the court, who have joined issues with the Claimant coupled with the evidence thereof. See also BELLO V INEC & ORS (2010) 2-3, SC (PT II) 128 at 196.
70. Arising from the a foresighted authorities of the apex court on issue of proper party in a suit as raised by the 1st Defendant in their Final Written Address, it is submitted that the Claimant brought the proper parties who are the 1st Defendant and the 2nd Defendant before the court. The pleadings and the evidence adduced are all against the Defendants before the court. Exhibit C3 is a document from the former employer of the Claimant. The exhibit is self-explanatory and is expressly captioned “Transfer of Service” and not “Dismissal or Termination of Employment”. Paragraph 2 of Exhibit C3 states thus: “Consequently, your services seconded to Keystone Bank Limited Eket Branch will be transferred to another service provider as may be determined by the bank...”
71. It is not in dispute as corroborated by DW2 who testified for the 2nd Defendant that after the issuance of Exhibit C3 by Resource Intermediaries (Nig) Ltd who were the former employer of the Claimant, Claimant continued to render his services for the 2nd Defendant before the 1st Defendant, from nowhere came up with Exhibits C4 and C5.
72. It is also worthy of note that during cross-examination of DW1 and DW2, they all denied there being any relationship between the 1st Defendant and Resource Intermediaries (Nig) Ltd. The question then is how come the 1st Defendant contending that the Resource Intermediaries ought to be joined as a proper party in this suit? On what ground? Claimant from his pleadings and evidence before the court has no issue(s) against Resource Intermediaries who were even the proper authority to have terminated the services of the Claimant upon the disengagement of their contract by the 2nd Defendant, but they did not do so, neither the 2nd Defendant whom the Claimant was working for deemed it necessary to terminate the services of the Claimant after Exhibit C3.
73. It is submitted that the authorities cited by the 1st Defendant in support of their submission on lack of jurisdiction of this court to handle this matter are distinguishable same not being in all fours with the matter before this court. It is settled law that Defendants are bound by the pleadings of the Claimant and cannot set a different case outside same. It is also settled that parties must base their address on pleaded facts. This position of the law was reaffirmed by the Supreme Court in the case of CHEVRON (NIG) LTD V TITAN ENERGY LTD (2014) ALL FWLR (PT. 758) 884 at 916, paragraphs E-H, where the court held inter alia: “Counsel must base his address on pleaded facts as litigation is made up of a combination of fact and the law. A counsel cannot rightly raise an issue of fact in the final address... parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with the pleadings...” In the case of MAGIT V UNIVESITY OF AGRIC, MAKURDI (2005) 19 NWLR (PT. 959) 211 at 247, paragraph G, the Supreme Court held inter alia: “It need be stressed, that every case must be determined or decided on its own peculiar facts and circumstances...”
74. On the authorities cited by learned counsel in support of issue 1, it is submitted that it is trite position of the law that cases cannot be authorities for what they did not decide. To support this proposition counsel place reliance on the case of ADO V STATE (2017) ALL FWLR (PT. 897) 1938 at 1958, paragraphs C-E, where the Supreme Court held that: “Cases cannot be authorities for what they did not decide. A decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent cases are similar to those in the earlier case. Thus, a lower court would not be bound to follow decisions of superior courts cited before it whose decisions were not informed by similar facts or issues the lower court subsequently confronts.” See also, CLEMENT V IWUANYANWU (1989) 3 NWLR (PT.107) 39.
75. Under paragraph 5.4, 1st Defendant’s counsel argued that the specific claim in reliefs iv and vi sought by the Claimant are in the realm of special damages, such that they are quantifiable in money’s worth and cited AHMED & ORS V CBN (Supra), in support by way of definition of special damages incidentally, all the authorities cited by the learned counsel for the 1st Defendant are in support of the Claimant as far as relief (iv) as couched under paragraph 13(iv) of the Claimant’s Witness Statement on Oath is concerned which paragraph is hereby reproduced for ease of reference – An Order directing the Defendants by way of special damages to jointly and severally pay to me all my salaries and allowances from July, 2019 to December, 2019 amounting to N411,392.94 (Four Hundred and Eleven Thousand, Three Hundred and Ninety Two Naira, Ninety Four Kobo) representing salaries/allowances for six (6) months at the monthly salary of N68,565.49 (Sixty Eight Thousand, Five Hundred and Sixty Five Naira, Forty Nine Kobo) and thereafter, from January 2020 till the determination of this matter.
76. It is submitted submit that this head of claim is specific, explicit, definite and exact, contrary to the submission of learned counsel for the 1st Defendant and the court has no difficulty in granting same. Besides, the relief which forms part of the case of the Claimant before the court was pleaded as “By way of special damages.” It is pertinent to note that throughout the cross-examination of the Claimant who testified as CW1, he was not cross-examined on this relief by the 1st Defendant’s counsel. The law is trite on failure to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter, as was decided in the case of NJIOKWUE MENI V OCHEI (2004) 15 NWLR (PT. 895) 196, Held No. 4, where it was settled that: “Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. In other words, failure to examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.” Counsel prays the court to so hold and discountenance the submission of the Defendant’s counsel which is watery and unhelpful to their case. Also, in the case of HARUNA V ISAH (2010) ALL FWLR (PT. 818) 918, Held No. 11, the court held that: “It is settled law that where a witness of a party is not questioned under cross-examination on his testimony on material facts and on the documents tendered in his examination-in-chief, the testimony of the witness and the genuineness of the documents will be believed and any subsequent suggestion otherwise by the other party will be treated as an afterthought.” In the case of OSUNG V STATE (2012) ALL FWLR (PT. 650) 1226 at 1248, paragraphs B-C, the Supreme Court held inter alia: “It is settled law that evidence that is neither challenged nor discredited, and which is relevant to the issue in controversy becomes good and credible evidence why a Judge is at liberty to rely upon for the just determination of the case before him...” See also the Supreme Court authority in the case of CALABAR EAST CO-OP V IKOT (1999) 14 NWLR PT. 638( 225.
77. On relief (vi) which is based on the legal principle of awarding general damages to a deserved claimant, it is submitted again that the argument advanced by learned counsel for the 1st Defendant favoured the Claimant in this case going by the pleadings/evidence before the court; consequently, Claimant is entitled to the claim of aggravated, exemplary and general damages. The submission of counsel for the 1st Defendant is baseless, misconceived and unhelpful. On award of general damages, the Supreme Court in the case of UNION BANK OF NIG PLC V AJABULE (2012) ALL FWLR (PT. 611) 1413 at 1432, paragraph A-C, held inter alia: “The law is trite that where general damages are claimed, if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages...”
78. Under paragraph 5.3 of the final written address, counsel submitted that Claimant was found to have been involved in the criminal act of parallel banking which was dominant amongst staff of Eket branch which led to issuance of indefinite suspension letter by the 1st Defendant followed by issuance of letter of dismissal from employment and which the said letter was recalled and replaced with letter of termination of employment following Claimant’s Solicitor’s letter.
79. It is submitted that the allegation of criminal act bordering on the purported parallel baking was not proved by any shred of evidence throughout the trial. 1st Defendant only tendered a purported Audit Report exhibit DW1H which was abandoned during trial, neither did the Auditor who prepared the said Report called to give evidence. Consequently, the mere allegation of criminal act which did not follow the principle of pleadings and/or proof is of no consequence and unhelpful to the 1st Defendant. Their action of replacing the purported dismissal letter with termination letter is inconsequential as they have no right to do any of that in the first instance.
80. On allegation of fraud or criminality in civil proceedings, counsel refers the court to the case of P. O. LTD V G.T.B PLC (2016) ALL FWLR (PT. 841) 1450 at 1458-1459, paragraphs D-A, where the Court of Appeal held inter alia: “... Generally speaking, where fraud is pleaded, a party doing so has a duty to prove it beyond reasonable doubt, irrespective of the fact that this is a civil proceeding; for fraud once alleged has to be proved beyond reasonable doubt. Section 135(1)(2) of the Evidence Act, 2011, provide thus (1) If the commission of crime by any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or other wrongful act is subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action.”
81. Also, in the case of G.F. NIG TD V E.A. GOREM LTD (2019 ALL FWLR (PT. 1019)) 889 at 921-922, paragraphs H-A, the court held that: “When a party raises an allegation of fraud or other criminal offences, such as fabrication of figures in its pleadings, a rule of law requires that such allegations must be specifically pleaded and supported by particulars. The reason is to enable a party defending the allegation ‘to understand the case he is facing and prepare his defence.’” In this case, the offence allegedly said to have been committed by the Claimant is stated in exhibit C5, which is failure to raise an alarm on the suspicious transactions on customers’ accounts by his colleagues at the Eket Branch which 1st Defendant who is not the employer of the Claimant, claimed she has the right to dismiss the Claimant.
82. In concluding his submission counsel submitted that from the foregoing, the Claimant has answered the issues settled by him and also, effectively countered the two issues raised by the 1st Defendant in their final written address.
THE SUBMISSION OF THE 2ND DEFENDANT:
83. The 2nd defendant formulated three issues for determination. They are:-
(a) Whether the Claimant has proven his case to be entitled to the reliefs sought.
(b) Whether the Claimant was an employee of Resource Intermediaries and the 1st Defendant, in succession, (especially in view or by virtue of Exhibit C2 and Exhibit C3).
(c) Whether the Claimant was ever an employee of the 2nd Defendant (especially in view of or by virtue of Exhibit C12 and Exhibit C13).
84. Counsel began argument by urging the court to resolve issues 1 and 3 in the negative, and Issue 2 in the affirmative, with all the Issues being therefore resolved in favour of the 2nd Defendant and against the Claimant. The consequence of such resolution would be that this suit is to be dismissed against the 2nd Defendant.
ARGUMENTS:
1. Whether the Claimant has proven his case to be entitled to the reliefs sought.
2. Whether the Claimant was an employee of Resource Intermediaries and the 1st Defendant, in succession, (especially in view or by virtue of Exhibit C2 and Exhibit C3).
3. Whether the Claimant was ever an employee of the 2nd Defendant (especially in view of or by virtue of Exhibit C12 and Exhibit C13).
85. Counsel submitted that issues 1, 2 and 3 are interwoven, and plead to argue them together in the manner set out below:
86. Counsel began submission by making reference to the case of Ogah v. Ikpeazu (2017) 17 NWLR (Part 1594) page 299 at pages 336-227 (paragraphs G-A), where the Supreme Court has held that a party seeking declaratory relief must succeed on the strength of his case and not on the weakness of the defendant’s. The Claimant, in this case, therefore, has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Declaratory reliefs, it must also be noted, are not otherwise granted, not even upon the admission of the defendant. In the instant case, to succeed in his claim, the Claimant must prove, first, that he was an employee of the 2nd Defendant and then, second, what were the terms of that employment, then, third, that he was unlawfully dismissed or terminated from the services of the 2nd Defendant, as he claims in his principal relief in the Statement of Claim.
87. The question at this point, then, is did the Claimant prove these ingredients before this honourable Court, so as to be entitled to the reliefs sought? The answer is an emphatic NO! The Claimant, in his evidence-in-chief, tendered Exhibit C2, Exhibit C12 and Exhibit C13, to show that he was a staff of the 2nd Defendant. But none of these documents establish his claim.
88. According to counsel exhibit C2: This is the Claimant’s employment letter from Resource Intermediaries Nigeria Limited, dated 29th April, 2014 and addressed to the Claimant, which contains information and the terms and conditions governing his employment with the Resource Intermediaries. One would have imagined that that document is clear enough, and is conclusive as to who was and who was not the Claimant’s employer. During cross examination by the 2nd Defendant, CW1 was confronted with Exhibit C2. He was asked to read the contents of Exhibit C2 to the hearing of the court. In the second paragraph, it is clearly, expressly and categorically stated, and the CW1 read to the court, thus:
“… Please note that you are employed by the Company (Resources Intermediaries) to execute its contract with Keystone Bank and that this employment does not make you a staff of the Bank. Consequently, your conditions of service are not identical to those of the staff of the Bank. You are hereby assigned to work at Keystone Bank Eket Branch, Akwa Ibom State. In the sixth paragraph, it is further stipulated: “You are expected to remain in your current Branch/Region/Post but you should be prepared to serve the company in any location you may be deployed to.”
89. Counsel argued that in the light of the above underlined portion of the Claimant’s own exhibit C2, which he read to the hearing of the Court on 18th of October 2021, it is crystal clear that the Claimant is or was not a staff of the 2nd defendant but of its independent contractor or service provider, the Resource Intermediaries, whose contract with the 2nd defendant later terminated and was succeeded by the 1st defendant. These service providers or independent contractors, supply some labour by attaching some of its staff, like the Claimant in the instant case, to provide some services to the 2nd defendant. The practice is actually quite widespread in certain sectors of our economy, including the banking sector. The Claimant, by Exhibit C2, was one of such persons supplied by Resource Intermediaries and later succeeded by the 1st defendant, to work at the 2nd defendant’s Eket Branch as a Transaction Processing Assistant. According to counsel exhibit C2 clearly speaks for itself and the Claimant has not discharged that burden of proof that he is or was a staff of the 2nd defendant.
90. Counsel expressed surprise that the claimant at several points in his reply to the 1st defendant’s final address, has repeatedly challenged the 1st defendant to show the employment letter by which it employed him, even to the point of disputing other written communications between the 1st defendant as himself as being insufficient to show his employment. Well, what is sauce for the goose ought to be source for the gander, and the principle is even more acute in the context of his claim against the Bank. So, does the Claimant have any employment letter from the Bank? Of course he does not. What does he actually have, then? Well, he has and has tendered a letter expressly stating and emphasizing that he is not an employee of the Bank, Exhibit C2!
91. It is submitted by counsel that exhibits C12 and C13: tendered in evidence by the claimant attached together as the 2nd defendant’s Sub Contract Staff Identity Card together with the 2nd defendant’s Security Token to show that “he is a staff of the 2nd defendant”. During Cross examination by the 2nd defendant, CW1 was asked the following line of questions:
2nd defendant’s Counsel: “Do you have any document to show this court that the 2nd defendant had offered any employment to you?”
CW1: “NO” (he answered reluctantly). This, we submit, should be sufficient to settle this point to finality. But there is more:
2nd defendant’s Counsel: “So, if you do not have any document before the court showing that you are a staff of the 2nd defendant, what then makes you a staff of the 2nd defendant”?
CW1: “They gave me an ID Card and the Security Token” exhibit C12 and Exhibit C13.
2nd defendant’s Counsel: “So, in your mind, it’s the ID Card and the Security Token that qualifies you as a staff of the 2nd defendant, right”? CW1: “Yes! I was also told that I am their staff”
92. Counsel contended that it is extremely curious, indeed unthinkable, that any person of normal or average intelligence, would suggest that a major, licensed, reputable and one of the leading commercial Banks in Nigeria, such as the 2nd defendant, can employ the Claimant or any other person orally. That the Claimant persists upon that line is either blissful ignorance, or, far more probably, sheer mendacity. To be clear, neither exhibit C12 nor exhibit C13, which were given to the Claimant by the 2nd defendant (and which are usually given to all sub-contract staff including the Claimant) to enable him perform his assigned duties to the Bank, changed his status or employment, nor did they change him from being an employee of an independent contractor to becoming an employee of the 2nd defendant. Quite apart from, as clearly stated in exhibit C2, the conditions of service of the staff of the 2nd defendant not being the same with that of the Claimant, even the ID card upon which the Claimant relies so heavily, are not the same. Indeed, exhibit DW2A was tendered just so that it can be compared with the Claimant’s Exhibit C12. The identity card of all staff of contractors, have distinct markings and codes, totally different from those of the Bank’s employees. In the instant case, the Claimant’s ID card, exhibit C12, has his employer’s identity on the back with his name and employment details thus: “Mkpa Anthony A. RIL/2014/7105” [“RIL” stands for Resource Intermediaries Limited who originally employed the Claimant in 2014, with his/their employee number as 7105] Also, side by side with the logo of the Bank can be the logo of Resource Intermediaries (the three wavy lines). This signifies, to all concerned, including the Claimant who knows this full well, that the bearer is a staff of Resource Intermediaries, deployed by them to Keystone Bank. This card does not display a Keystone Bank staff number, since he does not have any record with the Bank. The Claimant’s exhibit C12 can be contrasted with Exhibit DW2A, which is typical of what is issued to the 2nd defendant’s staff members. Apart from the photograph and name of the employee, it says, on the reverse side, that “this card identifies the person whose name and photograph appears on it as an employee of Keystone Bank. This card is not transferable and remains the property of Keystone Bank”. It then states the individual’s staff ID number. Nothing could be clearer; nothing could be more different.
93. As for the banking token, Exhibit C13, everyone working in modern banking has one. Even those who do not work in banks do, as well. In our law office, we have one for each of the banks our Firm has an account with. Several of our solicitors have individual ones for their individual accounts. To return to the Claimant, he was deployed as a “Transaction Processing Assistant”. That means he was deployed to process transactions. There is absolutely no way that anyone can execute that function without that token, whether such an individual is employed by the Bank or supplied by an independent contractor. The token therefore is tied to functional deployment, not to whether the individual is employed by the Bank or by the contractor. Indeed, all other outsourced persons performing similar or allied functions all have their tokens. Having one is therefore, in fact, not nearly as special as the Claimant would like to make the court believe that it is!
94. Counsel continued with his submission that beyond the foregoing, it is very trite that he who asserts must prove - please see, for instance, Union Bank of Nigeria Plc v. Sparkling Breweries Limited (2000) 15 NWLR (Part 689) 200 at 214 (paragraph H). In the instant case, exhibit C2 (the letter of employment duly acknowledged by the Claimant at the inception of his employment with Resource Intermediaries) and exhibit C3 (the “Transfer of Service” mail advising the Claimant that, effective 1st July 2019, the 2nd defendant will realign its strategic focus consequent upon which the claimant’s services “seconded to Keystone Bank Eket Branch will be transferred to another service provider as may be determined by the Bank), speak for themselves. They unequivocally show that the Claimant was not, has never been, and is not, a staff of the 2nd defendant. As we have already pointed out, the Claimant clearly admitted in cross-examination, he does not have an employment letter from the 2nd defendant.
95. It is submitted that the Claimant’s assertion that he is/was a staff of the 2nd defendant by oral information or understanding between himself and the 2nd defendant, is not only false, unreasonable and unthinkable, but eminent ridiculous. It also flies in the face of all the other documentary evidence in this case, including without limitation exhibits C2, C3, C4, C5, DW1B, DW1D, DW1I and DW1J.
96. The Claimant, having failed to prove the existence of any employment contract between himself and the 2nd defendant, not surprisingly, also failed to prove what were the terms and/or conditions of any such purported contract, seeing as there is, in reality, no such contract. Indeed, not only has he not proven any such terms or conditions, he has in fact not even alleged them, not even so much as referenced them in his pleadings! At this juncture if his suit had not already failed, it would fallen flat here.
97. The third hurdle for a claimant to pass in a claim for wrongful termination or dismissal is for him to show which term(s) of his employment contract have been breached, and how they were breached. In the instant case, not having proven the existence of any contract of employment with the Bank, and having failed to plead, much less prove, the terms of his fictional employment by the Bank, it is inevitable that the Claimant would fail, as indeed his most pre-eminently has (failed), to jump over this third hurdle.
98. On the whole, it is submitted that the Claimant has not discharged that burden of proof that he was/is a staff of the 2nd defendant to entitle him to his claims in this suit. On this submission counsel refers to the case of Adams v. Lagos State Development and Property Corporation (2000) 5 NWLR (part 656) 291 at 316 (paragraphs D – E).
99. It is the submission of counsel that it will be remiss in their responsibility if they failed to point out that this case is also affected by acquiescence and caught by estoppel. The reason for saying so? Because, against what is obvious and against all logic and reasonableness, the Claimant is still posturing that the 1st defendant was not its employer. But here are the facts nobody can in good faith contest:
100. Towards the end of its contract, Resource Intermediaries advised the Claimant that his employment would be transferred to “another Service Provider” with effect from 1st July 2019 – see Exhibit C3. There is no evidence or suggestion that Claimant protested that impending transfer. In fact, it would be inference, not speculation, if we said he was relieved and happy, because he would remain in employment with the new service provider. But we do not go that far because we need not go that far. It is enough that he acquiesced in the transfer. He is now caught by estoppel by conduct.
101. On 19th July 2019, the 1st defendant, not the Bank, suspended the Claimant from work indefinitely, see exhibit C4. The Claimant, who now says he does not even know who the 1st defendant is, accepted the authority of the suspension, and stayed away from work. He did not defy the 1st defendant and show up for work. He did not at that time assert that he does not know who the 1st defendant is. He did not write to the Bank, who he now says is his employer, to say that this unknown stranger has suspended him. Of course the Claimant’s current posturing is a lie, but our point right now is that he did not reject or defy the suspension or the 1st defendant’s status as his employer. Well, he cannot do so now. Estoppel and Equity would not now permit him.
102. Going by his exhibit C6, the Claimant, 3 months after his suspension, was invited, by the same 1st defendant (not the 2nd defendant), to appear at the same 1st defendant’s (not the 2nd defendant’s) office at Port Harcourt, apparently as part of the 1st defendant’s disciplinary process. This same Claimant, who has now discovered this same 1st defendant to be not his employer but a total stranger, nevertheless, attended the meeting, and made representations thereat.
103. After his dismissal by this same 1st defendant from the service of the 1st defendant, this same Claimant retained the service of a legal Practitioner to write to the same 1st Defendant the letter tendered as Exhibit C6. In Exhibit C6, the Claimant and/through his lawyer asserted the Claimant’s innocence and requested that the letter of dismissal be withdrawn by this same 1st defendant forthwith. Most remarkably, however, the Claimant and his lawyer do not assert or contend anywhere in that letter that the 1st defendant is not his employer, nor that the 1st defendant is a stranger to his employment. Evidently, that position just suggested itself to them. Or could it that it was not included in their letter by some clerical error? Well, now they are estopped from any such contention.
104. According to counsel the position taken by the claimant in this case is insulting to logic. The Claimant cannot approbate and reprobate. And that he is caught by estoppel.
105. In concluding his submission counsel submitted that on the whole, having failed to prove any of the foregoing ingredients, and having failed even to plead even the most basic requirements of fact required by law, and all the Issues for determination having been resolved against him, it seems to us that the fate of this suit is as inevitable as it can be. It must be dismissed. Counsel urged the court to so find and to so hold.
106. For the several reasons, factual and legal, set forth above in this Address, the Claimant’s case has, most eminently, not been proven. Not one single one of the purported reliefs claimed has been made out; not one is made in good faith. The natural and unavoidable outflow and consequence of the failure to establish the claims by credible evidence is that this action must be dismissed in its entirety. Counsel urged the court to do so, and to award costs in favour of the Defendants and in favour of the 2nd defendant in particular, on the basis of actual indemnity.
THE SUBMISSION OF THE CLAIMANT IN RESPECT OF THE 2ND DEFENDANT:
107. The Claimant formulated three issues for determination in response to 2nd defendant’s submission. They are:-
1. Whether or not the Claimant at all material time was working for the 2nd Defendant as at the time 1st Defendant issued Exhibits C4 and C5 to the Claimant.
2. Whether or not, the Witness Statement on Oath of DW2 who testified for the 2nd Defendant is competent in the light of the decision in the case of BUHARI V INEC (2008) 12 SC (PT. I) 1 and section 112 of the Evidence Act, 2011.
3. Whether or not, and from the totality of the cogent and uncontroverted evidence before the court, the Claimant is entitled to the Reliefs sought against the Defendants jointly and severally in this matter.
ARGUMENT:
108. Issue 1 - Whether or not the Claimant at all material time was working for the 2nd Defendant as at the time 1st Defendant issued Exhibits C4 and C5 to the Claimant. It is submitted that exhibit C2 is the letter of offer of employment by Resource Intermediaries Ltd while Exhibit C3 captioned 'Transfer of Service' is the letter from the said Resource Intermediaries Ltd, informing the Claimant of the decision of the 2nd Defendant to realign its strategic focus etc. Upon issuance of the said Exhibit C3 herein, Claimant, no doubt, continued with his services for the 2nd Defendant without any restraint as pleaded under paragraph 6 of the Statement of Facts and corroborated by DW2 under cross-examination. It is worthy of note that as at the time of issuing of Exhibits C4 and C5, there was no form of transfer of the services of the Claimant to any service provider, not even to the 1st Defendant, as such, no letter of employment from the 1st Defendant was ever issued to the Claimant. This is admitted by DW1 under cross-examination who could not produce any evidence of offer of employment to the Claimant.
109. It is submitted that from the pleadings of the Claimant as per the Statement of Facts, that upon the disengagement of the services of Resource Intermediaries Ltd. as per Exhibit C3, the 2nd Defendant retained and/or maintained the services of the Claimant as there was no further transfer of his services to any other service provider including the 1st Defendant. There was no letter from the 2nd Defendant to the Claimant to that effect, neither was there any letter of employment to the Claimant from the 1st Defendant as corroborated by the DW1 and DW2 respectively under cross-examination. The only letter of employment is exhibit C2, which the Resource Intermediaries Ltd issued to the Claimant. None from the 1st Defendant who issued Exhibits C4 and C5 (suspension letter and dismissal letter) wrongly, illegally and unlawfully to the Claimant whom it did not employ. It is however, trite law that an employer has the right to terminate the employment of its employee; in this case, the 1st Defendant who did not employ the Claimant, is no doubt, a stranger as far as the employment of the Claimant is concerned, and had no right whatsoever to tamper and/or dismiss the Claimant from his employment with the 2nd Defendant no matter the format it may employ; the 2nd Defendant no doubt, retained the Claimant’s services after exhibit C3 as per the evidence of DW1 and DW2 under cross-examination. By implication, 2nd Defendant admitted the fact that the Claimant was working under her control as her staff at the material time simpliciter. It is also settled that contract of employment could be by conduct or oral apart from in writing. It could be by express terms or implied terms. We submit that the action of the Defendants against the Claimant amounted to an unfair labour practices which should be deprecated by this Honourable Court.
110. It is submitted that under cross-examination of the 2nd Defendant’s witness, on 18/10/2021, DW2 clearly admitted the fact that the Claimant was under the engagement of the 2nd Defendant, that is, at all material time after exhibit C3. It is trite law that what is admitted needs no proof. Reliance is placed on the case of OSOKOYA V ONIGEMO (2018) ALL FWLR (PT. 942) 424 at 452-453, paragraphs H-A, where the court held inter alia as per Georgewill JCA: “My lord, in considering the sole issue for determination, I bear in mind that issue of facts on which the parties are ad idem required no further proof and are taken as having been established. It is also the law that facts admitted by either party of the averment of the other party also need no further proof...”
111. Counsel submitted that when Defendant’s evidence support claimant’s case it amount to admission. To buttress the point being made counsel relied on the case of AIGUOKUNRU EGHIAN V IMARUGHERU (2018) ALL FWLR (PT. 951) 1898 at pages 1930-1931, paragraphs H-A, where the court held thus: “The law is certain in that where the Defendant’s evidence clearly supports the case of the plaintiff, the trial court is entitled to treat such evidence as an admission, and the plaintiff is entitled to rely on same in the reinforcement of his case.” See also, OLATUNJI V ADISA (1995) 2 NWLR (PT. 376) 167 and USMAN V KADUNA STATE HOUSE OF ASSEMBLY (2007) 11 NWLR (PT. 1044) 148.
112. According to counsel the defendants relying on the purported ‘Welcome Address’ from the 1st Defendant as being the appointment of the Claimant by the 1st defendant which of course is irrelevant and of no value/moment. Counsel submitted that the court cannot rely mere conjecture or speculation to establish a case. The said ‘Welcome Address’ from the 1st Defendant being a mere conjecture has no place in law. In support of this submission counsel relied on the Supreme Court case of ADEGBITE V STATE (2018) ALL FWLR (PT. 951) 1855 at 1881, paragraphs C-D, where it was held that: “It is trite principle also that a court should not decide a case on mere conjecture or speculation. Courts of law are courts of facts and laws. They must avoid speculation.” See also, OGUONZEE V STATE (1998) 5 NWLR (PT. 551) 521; ORHUE V NEPA (1998) 7 NWLR (PT. 557) 187. Arising from the foregoing decided cases, counsel submitted that the purported ‘Welcome Address’ from the 1st defendant which was not even addressed to the Claimant, being a mere conjecture/speculation, holds no water as far as this matter is concerned as the fact remain and it is irresistible that the 1st defendant is not the employer of the claimant and had no right to dismiss him having not employed him in the first instant as one cannot place something on nothing and expect same to stand. It cannot stand! See MACFOY V UAC (1961) 3 NWLR 1405 at 1409. The acts of the defendants, no doubt, constitute unfair labour practices and counsel urged the court to so hold! This argument is in respect of Issue No.1 herein.
113. Issue 2 – Whether or not, the Witness Statement on Oath of DW2 who testified for the 2nd Defendant is competent in the light of the decision in the case of BUHARI V INEC (2008) 12 SC (PT. I) 1 and Section 112 of the Evidence Act, 2011. In arguing issue two; counsel submitted that DW2 testified for the 2nd Defendant on 18/10/2021 after adopting her purported Witness Statement on Oath. Under cross-examination, she admitted the fact that she signed her Witness Statement on Oath in her office.
114. Counsel submitted that the position of the law where Witness Statement on Oath as in this case is sworn to elsewhere, outside the Court’s Registry; is patently and grossly incompetent and cannot be accorded any probative value in law. Accordingly, the Witness Statement on Oath of the DW2 is without much ado incompetent and cannot be reckoned with in law and by this Honourable Court in this matter. To say the least, the evidence-in-chief of the Defendants were already dead on arrival to the Court’s Registry, and the court is bereaved of the Defendants’ evidence-in-chief in this matter as same situation is applicable to the 1st Defendant herein.
115. The Witness Statement on Oath having being sworn by DW2 in her office as admitted by her in the open court, is worthless and the court is respectfully called upon to so hold as there is no evidence properly so-called from the Defendants to support their defence against the claims put forward by the Claimant. The admission of the said Witness Statements must be set aside, same being inadmissible in law. Counsel prays the court to so hold.
116. Counsel further submitted that most fundamentally, is the fact that DW2, 2nd Defendant’s witness admitted openly and clearly in court that her evidence was based on what she was told as she was not aware of all that transpired between the Claimant and the 2nd Defendant. Her evidence/answers to questions equally portrayed this fact. On impropriety of hearsay evidence, the Supreme Court in the case of F. R. N. V USMAN (2012) ALL FWLR (PT. 632) 1639, Held No.4, held inter alia: “A witness is expected to testify in court on oath on what he knows personally. If the witness testifies on what he heard some other person says, his evidence is hearsay. Such evidence is to inform the court of what he heard the other person say... If on the other hand his testimony is to establish the truth of an event in question or as in this case, to establish the truth of the contents of the appellants’ statements, it is hearsay and inadmissible evidence. Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons. For example, he may say things that were never said. Such evidence remains hearsay evidence because it cannot be subject to cross-examination in the absence of the informant...” See also BUHARI V OBASANJO (Supra). Counsel urged the court with respect to dismiss in its entirety the evidence of the DW2 same being second-hand evidence. There being no shred of evidence from the 2nd Defendant apart from the hearsay evidence and the incompetent Witness Statement on Oath, counsel urged the court with respect to tow the line of the Supreme Court cases herein cited concerning hearsay evidence and dismiss in its entirety the evidence of the 2nd Defendant being inadmissible evidence.
117. It is submitted that arising from the foregoing, the defendants have no valid evidence known to law to controvert and/or contradict the evidence of the Claimant on the cogent facts/evidence adduced by the Claimant in this case. On propriety of court presuming the existence of facts from proved facts, the Supreme Court in the case of ONONUJU V STATE (2015) ALL FWLR (PT. 810) 1198 at 1227, paragraph 13, held thus: “It is settled law that the court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts.” See also Section 145(2) Evidence Act, 2011. This argument settles Issue No.2 herein.
118. Issue 3 – Whether or not and from the totality of the cogent and un-contradicted evidence before the court, the Claimant is entitled to the reliefs sought against the Defendants jointly and severally in this matter. It is the submission of counsel that the claimant in his evidence and facts before the court as contained in his Statement of Facts and Witness Statements on Oath coupled with his evidence under cross-examination, he has no doubt discharged the first burden placed on him by law, having led cogent and unassailable evidence to proof/establish his case against the Defendants herein and is accordingly entitled to the reliefs sought against the Defendants jointly and severally. In support of this view counsel relied on section 131 of the Evidence Act, 2011 and the Supreme Court case of CHEMIRON INT’L LTD. V STANBILINI VISINONI LTD. (2018) ALL FWLR (PT. 965) 48 at pages 70-71, paragraphs H-C. Reliance was also placed on the case of TEWOGBADE V AKANDE (1968) NMLR 404 at 408, where the Supreme Court, as per Eso, JSC held thus: “The position therefore, is this, in a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of these facts. Once that party produced the evidence in evidence, that would satisfy the jury, then the burden shifts on the party against whom judgment would be given if no more evidence were adduced...”
119. Counsel submitted that the 2nd defendants fails to discharge the evidential burden on it. In support of this submission reliance was placed on the case of IRONKWE V UBA PLC (2017) ALL FWLR (PT. 879) 650 at 685, paragraphs E-F, where it was held that: “Where 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 the mere probable position, the party who has the burden of proof has failed to discharge the evidential burden.” Further reliance was placed on the Supreme Court decisions in OSAWARU V EZEIRUKA (1978) 6-7 SC 135; MOZIE V MBAMALU (2006) ALL FWLR (PT. 341) 1200.
120. Counsel maintained that in this case, there is no document in the form of letter of offer of employment and/or transfer of service from the 1st Defendant to the Claimant suggesting that the 1st Defendant is the employer of the Claimant. On documentary evidence, counsel refers to the case of ZAKIRAI V MUHAMMED (2018) ALL FWLR (PT. 964) 1913 at 1986-1987, paragraphs H-A, where the Supreme Court stated that: “Documents when tendered and admitted in court are like words uttered and admitted and do speak for themselves. They are even more reliable and authentic than words from the vocal cod of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.” Counsel posited in this case, there is no such document.
121. It is further submitted that in this case, there being no such document of employing the Claimant by the 1st Defendant which the 2nd Defendant or this court could rely on, having admitted under cross-examination the fact that there is no such document. It is settled law that documents bear eloquent testimony to what happened. See the Supreme Court decision in the case of ZAKIRAI V MUHAMMED (Supra) at 1986-1987, paragraphs H-A. The Supreme Court in the instant case went further to state that “Documentary evidence is used as a hanger to test veracity of evidence, whether oral or by affidavit. This, documentary evidence is a hanger to base other pieces of evidence.” See also, GBILEVE V ADDINGI (2014) 15 NWLR (PT. 1433) 394. The spurious documents which the Defendants conspired to produce and tendered through the 1st Defendant for the purpose of defending this action were all abandoned during trial.
122. Counsel also submitted that it is trite law that he who alleges must prove as was decided in the case of OKUNBULE V OYAGBOLA (1990) 4 NWLR (PT. 147) 723 at 736, paragraphs C-D, where the Supreme Court held inter alia: “It is well stated that where a party has alleged the existence of the fact... the onus is on him to show the existence of such facts...” counsel submitted in the circumstance, the Claimant’s case stands unchallenged, as he has been able to discharge the onus on him. The defendants have failed to lead any acceptable/tangible evidence to show the employment relationship between the 1st defendant and the Claimant, rather, the 2nd defendant whom the Claimant was working for, through her witness, DW2 confirmed under cross-examination that at the material time the 1st defendant issued letter of dismissal (Exhibit C5) to the Claimant, Claimant was working for the 2nd defendant, when there was no such evidence that the Claimant was the 1st defendant’s employee. On presumption of facts, we place reliance on Section 145(1)(2)(3) of the Evidence Act, 2011.
123. It is contended that in the light of the foregoing, there is no doubt the fact that Claimant has proved the facts as per his pleadings/evidence before the court and has accordingly and satisfactorily discharged the burden placed on him by law as regards the standard of proof required in civil matters of this nature, as was decided in the case of INEC V RAY (2004) 14 NWLR (PT. 892) 92, held No. 13, where it was held that: “The standard of proof required in civil matters of proceedings is proof on balance of probabilities or preponderance of evidence in compliance with the dictates of sections 135 and 136 of the Evidence Act, (as at then). On the phrase “Preponderance of evidence” or “balance of probabilities”, the court defined it to connote the evidence or case of the party on whom it lies the burden of proof which is more likely to be true or more probable than that of the adverse party.”
124. Counsel further submitted on uncontroverted, unchallenged, and un-contradicted evidence of the Claimant, the court’s attention is being drawn to the Supreme Court decision in the case of YUSUF V OBASANJO (2005) 18 NWLR (PT. 956) 96, paragraphs where it was held that: “The court is bound to accept the uncontroverted, un-contradicted and unchallenged evidence of a witness on an issue.” Also, in A.C.B V EMOSTRADE (2002) 8 NWLR (PT. 770) 501 at 516, A-C, the Supreme Court held inter alia: “It is fundamental procedural requirement that when issues are joined on the pleadings, evidence is needed to prove them. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence when there is no such evidence, the issue must be resolved against him and the consequence of that are so decisive of the case presented as the materiality of that issue...”
125. Counsel also submitted that arising from the foregoing, the Defendants herein have failed to satisfy this fundamental procedural requirement, having failed to present any valuable evidence known to law in defence of their wrongful, unlawful and unwarranted act against the Claimant. Claimant no doubt, has successfully and through material and cogent and unassailable evidence prove his case against the Defendants. Counsel urged the court with respect to grant the reliefs sought by the Claimant against the Defendants with substantial costs.
REACTION OF THE CLAIMANT TO THE 2ND DEFENDANT’S FINAL WRITTEN ADDRESS:
126. It is submitted that the 2nd Defendant’s Counsel in his submission citing the case of OGAH V IKPEAZU (Supra) and submitted that the Claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case; and has to discharge the burden of proof to establish his case. Counsel quite appreciated the position of the law as referred to by learned counsel for the 2nd Defendant. Counsel also appreciated the 2nd defendant’s acknowledgement of the fact that they have a weak defence. Counsel reiterated his submission that the claimant has no doubt discharged the first burden expected of him as could be seen from the evidence before the court. But, the defendants including the 2nd defendant have woefully failed to discharge the secondary burden expected of them; in the circumstance, the court is left with no other alternative than to give judgment in favour of the Claimant.
127. It is also submitted that evidential burden lies on the adverse party to prove the negative. There is no evidence before the court that the 1st defendant was the employer of the claimant after exhibit C3. To buttress the point being made reliance was placed on the cases of ASIKA V ATUANYA (2008) 17 NWLR (PT. 1117) 484, OSAWARU V EZEIRUKA (Supra). And in the case of NWOGO V NJOKU (1990) 3 NWLR (PT.140) 570 at 581, paragraph D, the court held thus: “This case has not in any way derogated from the authority of NWABUOKU V OTTIH which laid it down that when a Plaintiff adduces oral evidence which establishes his claim against the Defendant in terms of his Writ, and the evidence is not rebutted by the Defendant, the Plaintiff is entitled to the judgment.” Counsel urged the court to so hold.
128. Counsel also refers to the submission of the counsel for the 2nd Defendant under paragraph 7.3.3 of the final written address where it was argued that the Claimant has nothing to show in form of employment letter from the Bank (2nd Defendant). it is the contention of counsel that by the mere fact that after the issuance of exhibit C3 by the Resource Intermediaries Ltd. which was to the knowledge of the 2nd defendant and the 2nd defendant despite that, retained the Claimant to continue to work for her; 2nd defendant’s Counsel is estopped from arguing that no employment letter was issued by the 2nd Defendant to the Claimant to establish the fact that Claimant at the material time was an employee of the 2nd Defendant. The evidence of DW2 who testified for the 2nd Defendant also supports the fact that the Claimant was under the employment of the 2nd Defendant; therefore, the Claimant need no further proof to the fact that he was an employee of the 2nd Defendant at the material time. It is trite that admitted fact need no further proof. In support of this submission reference was made to the case of MBA V MBA (2018) LPELR – 44295 (SC). It is further submitted that it is trite principles of contract of employment that it could take various forms aside from being written. It is also trite that there is no general law which stipulates the form which contract of employment must take as contract of employment is governed by the common law. Employment contract could be an oral/verbal contract, it could be contract by conduct, as in this case before the court; all these forms of employment contract is as valid as a written contract. To support this position counsel refers to the text on “Labour Law in Nigeria”, by Prof. E. E. Uvieghara, page 13.
129. It is the submission of counsel that the arguments of 2nd Defendant’s Counsel in its totality are irrelevant as far as the matter before this court is concerned. To say the least, the submission is watery. Claimant has placed before the court sufficient facts/evidence to prove his case against the Defendants generally without any reasonable evidence to controvert the evidence of the Claimant and this cannot be cured by the final Written Address of Counsel in whatsoever manner which is not known to law. On value of Counsel’s submission, the court in the case of OLUFOSO V FAKOREDE (PT. 272) NWLR 747, Held No.15 held that: “A counsel’s submission in court in support of a party’s case remains a mere submission. It can never be elevated to part of the evidence before the court. Thus, counsel’s submission, no matter how alluring, can never be, and has never been, regarded as part of the evidence for appraisal by the trial court.”
130. In concluding his submission counsel argued that there is no evidence properly so-called from the 2nd Defendant, her Witness Statement on Oath being a nullity, her oral evidence apart from supporting the case of the Claimant, is basically hearsay evidence as stated by DW2, the 2nd Defendant’s witness.
131. Again, it is also settled law that where Defendant does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff, he is deemed to have accepted the facts adduced by the Plaintiff. See the case of NEPA V EDEGBERO (2000) 14 NWLR (PT. 688) 615, Ratio No.8. In this case, the Defendants have failed to adduce an iota of evidence to support the denial in their pleadings or controvert the evidence of the Claimant. All that the Defendants did during trial was to strengthen the case of the Claimant. It is trite that the court is bound to accept the uncontroverted, un-contradicted and unchallenged evidence of a witness on an issue. YUSUF V OBASANJO (Supra) Held No.44. See also, A.C.B V EMOSTRADE (Supra).
THE 2ND DEFENDANT’S REPLY ON POINT OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS FILED ON 01/3/2022.
132. Counsel began his reply with the issue 2 formulated by the claimant, to wit:-
‘’Whether or not the Witness Statement on Oath of DW2 who testified for the 2nd defendant is competent in the light of decision in the case of BUHARI V INEC (2008) 12 SC (Pt.1) 1 and Section 112 of the Evidence Act 2011.
133. In responding to argument canvassed in respect of the above issue counsel refers to section 112 of the Evidence Act and submitted that the section does not apply to disqualify the Witness Statement on Oath of the Defendant’s sole witness, for several reasons. First, section 112 applies to affidavits only. A witness statement on oath is not the same thing as an affidavit. In distinguishing between Affidavit Evidence and Witness Statement on Oath, it is very trite that an Affidavit Evidence and Witness Statement on Oath, will only become evidence to be used by the Court in the determination of the case if and when, and only if and when, it has been adopted by the person who deposed to it as his testimony during the trial. If it is not so adopted, it is deemed abandoned and therefore cannot be examined by the trial Judge. An Affidavit on the other hand, is the evidence of the witness made in writing. Thus, whether or not the deponent appears in Court (usually he does not appear, and is not required or expected to appear), such depositions are evidence, and are capable of being evaluated by the Court as evidence. In support of this argument counsel refers to the cases of Splinsters (Nig.) Ltd & Anor V Oasis Finance Ltd (2013) 18 NWLR (Part 1385) p.188 at 227 per lzoba, JCA; Agagu v. Mimiko & Ors (2009) 7 NWLR (Pt.1140) 34; Oraekwe v. Chukwuka (2012) NWLR (Part1280) 87 at 201. Smilarly, in the case of Hon, Fabian Okpa v, Chief Alex Irek & Anor (2012) LPELR – 8033 (CA), Ndukwe – Anyanwu, JCA, relying on the case of Akpokinlovo V Aga (2004) 10 NWLR (Pt.881) 394 at pages 417-419 (paras. G-D) said: “This Court has consistently held that a witness Statement on Oath is different from Affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence… On the contrary, a witness statement is not evidence. It only becomes evidence after the witness is sworn in Court and adopts his statement. At this stage at best it becomes evidence in chief. It is therefore subjected to cross-examination after which it becomes evidence to be used by the Court’.
134. The second reason why section 112 of Evidence Act, does not apply to disqualify witness statement on oath is contrary to the assertion of the Claimant in his paragraph F.10, it is not the law that where the witness statement is signed other than in a court registry, the witness statement is void. Counsel submitted even where an affidavit (which it is not), the law is that where, as in this case, the deponent signed such an affidavit elsewhere than before the commissioner of oath, but subsequently appears before the said commissioner, any deficiency in the signing is cured and the affidavit is valid – please. In support of this submission counsel relied on the case of Shell Petroleum Development Company of Nigeria Ltd v, Amadi (2010) 13 NWLR (Part 1210) 82 at 142 (paragraphs E – G).
135. As the Claimant has himself argued elsewhere in his address, a case is authority for what it actually decided, not for what it did not decide. So, what were the facts, and what did Buhari V INEC cited by the Claimant actually decide? In that case, a party swore to an affidavit before Mr Keonu, a Notary Public. But Mr Keonu was also lawyer for that party in the litigation before the court! It was on that basis that the affidavit was disqualified. It was not disqualified because it was signed outside the registry of the court, but because it was sworn before the party’s legal practitioner. Buhari V INEC, does not apply to the instant case.
136. Counsel also refers to Section 4(2) (3) of the Oaths Act, which is to the effect that:
“(2) No irregularity in the form in which an oath or affirmation is or taken shall: (a) Invalidate performance official duties, or (b) Invalidate proceedings in any Court or (c) Render inadmissible evidence in or in respect or which an irregularity took place in any proceedings.
“(3) The failure to take an oath or make an oath or make any affirmation and any irregularity as to the form of an oath of affirmation shall in no case be construed to affect the liability of a witness to state the truth.”
137. Counsel submitted that in the light of the forgoing provisions of the law, the evidence of DW2 was given under the Oaths Act, and is to be treated as if she had signed the deposition at the Registry of this Court. In that case, no miscarriage of justice has been occasioned by the omission to administer Oath at the Registry of this Court.
138. Counsel also submitted that a party is not permitted to approbate and reprobate, In this case, the Claimant has sought to rely on those parts of DW2’s evidence (elicited in cross-examination) as he construes or misconstrues to be favourable to himself. But, he cannot at the same time challenge the legality of her witness statement. This is because her witness statement is her evidence-in-chief. If it is unlawful or invalid, then there can be no valid cross-examination, since a witness must first give evidence before they can be cross-examined. Having cross-examined DW2 at length, even after the admission that she had signed the witness statement in her office, and after having sought to rely on the evidence purported to have been elicited during that cross-examination, the Claimant cannot turn around to change its validity or legality.
139. It is further submitted that this honourable Court, by its peculiar mandate and outlook, is bound by the rules of evidence. To buttress this point counsel relied on Order 40 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Thus the Court would not overlook or throw out the evidence of a witness who has appeared in open court, taken an open oath thereat, and subsequently given or adopted her evidence-in-chief, and been cross-examined, on the basis of some technicality. This honourable Court, we daresay, is a court of justice and not a technical workshop and cannot be employed as such. The Courts are now inclined to doing substantial justice devoid of undue adherence to technicalities in the administration of justice. In support of this submission counsel relied on the case of Texaco Nigeria Plc ‘v, Nebolisa & Anor (2012) LPELR.20080 (CA).
140. In concluding his submission on validity of witness statement on oath, counsel refers to the case of Kalu Igu Uduma v. Prince Ama Arunsi & 14 Ors (2010) LPELR – 9133 (CA), where Ogunwurmju, JCA held that: “where the Written Statement is to be adopted again on Oath by the maker before his Cross-Examination on it, whatever defect in the Original Oath in respect of the witness statement has been cured by the second Oath made in Court before the judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination”.
141. In his response to submission on hearsay counsel submitted that the argument in paragraphs F.13 to F.14 of the claimant’s address, that DW2’s evidence amount to hearsay since she was not personally involved in the matter regarding which she testifies. Again, the Claimant’s position is, with respect, totally misconceived. The case of FRN v Usman which he cites is not only, it actually disproves his argument. Even the passage that he quotes from this authority say that “Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence.” DW2 did not give evidence of an oral statement that she heard or repeated from anyone else. Indeed, she gave the basis of her testimony, at paragraph 1 of her Witness Statement, thus:
“1. I am currently the Service Manager at the Calabar Main branch of the 2”d Defendant on record. By virtue of my position and employment as aforesaid, I am familiar with the facts of this case, In addition to my personal knowledge of the facts of the case, I have also studied the relevant files/records regarding the employment of the Claimant, kept in the custody of the 1st defendant.
142. In the circumstances, therefore, DW2’s evidence is not hearsay. Apart from logic, this position is also supported by the decided authorities. One of them is Anaja V UBA Plc (2011) 15 NWLR (Part 1270) 377, where the Court of Appeal held that a corporate entity can only act through natural persons. Therefore any servant or agent of the entity can give evidence and tender documents to establish any transaction or activities regarding the entity. That servant or agent need not have actually taken part in the transaction or activity. His evidence is admissible and not hearsay. Counsel also relied on the Supreme Court decision in Interdrill Nigeria Limited v, United Bank for Africa Plc (2017) 13 NWLR (Part 1581) 52 at 67 where it was held that any servant or agent of a company can testify on the company’s behalf, whether or not he personally participated in the transaction, and that such evidence is not hearsay.
143. In response to the question, ‘’Was the Claimant the Bank’s employee at any point? Counsel contended this is at the heart of the matter, and this is the central question in the Claimant’s Issue 1. It is submitted despite the Claimant’s attempts at obfuscating the answer, that the position is crystal clear. According to counsel the claimant kept misusing the expression ‘’working for’’. The expression according to counsel has been introduced to muddy the waters. The reason being that the claimant was recruited by Resource Intermediaries to work. His deployment was to the 2nd defendant, the Bank. While he worked there, he worked for or was employed by his employer, and his employer’s duty was, by definition and essence, to supply service to the Bank. He worked for his employer who in turn worked for the Bank. The Claimant showed up for work, every workday, at the Bank. The ultimate consumer of his service can therefore be said to be the Bank. Even the undersigned, as external solicitor, has used, on several occasions, the expression, that he (and/or his Firm) works for the Bank. It would therefore be understandable if the expression were used, colloquially, to say that the Claimant works at or for the Bank. In that sense, the Claimant can be said to have, from the moment he was employed by Resource Intermediaries and retained by the 1st Defendant, up to the moment that he was dismissed (later converted to termination) by the 1st Defendant, that he rendered services not only to his employer, but also indirectly or ultimately to the Bank. But that is as far as the colloquial expression goes. It is unacceptable sophistry, and totally misleading, to twist that expression, as the Claimant repeatedly seeks to do, to now suggest or imply that the undersigned, or his Firm, or the Claimant, is an employee of the Bank. Thus when DW1 or DW2 refers to the Claimant working at or working for the Bank, it means no more than as has been explained, and everyone, in all honesty, knows that, even though the Claimant in his Address has sought to pretend that he doesn’t. At no point, therefore, did either DW1I or DW2 assert or admit that the Claimant was ever an employee of the Bank, contrary to the Claimant’s false and repeated assertions in his Address. Not once, not ever. Indeed, they asserted the exact opposite.
144. Counsel also submitted that the claimant has sought to reverse the burden of proof. Instead of proving his fictional employment by the bank by tendering his non-existent letter of employment from the bank (which is what he is required to do if he is alleging employment by the Bank), he instead put the burden of disproving his assertion on the defendants. He actually has the temerity to purport to reverse the burden of proof all by himself, and he actually challenges the defendants to show his employment letter from the 1st defendant. Unfortunately for him, he is not permitted to do so. By section 131(i) & (2) of the Evidence Act and by innumerable decisions of all the courts in this country, the onus of proving his case as a whole does not shift, from him. And, as far as that goes, he has failed woefully. At paragraph F.7 of his Address, he, ironically, characterises the 1st Defendant’s Exhibit DWIB as conjecture or speculation. Well, if that is speculation or conjecture, then the Claimant’s entire case is far worse and does not even rise to the level of speculation or conjecture. His, is fiction, pure and simple. He is now left to the desperation of alleging that the Bank employed him orally. A bank? With thousands of employees? In Nigeria? Employ orally? Wow. Speechless. In any event, it must also be noted, and emphasised, that when seeking a declaratory relief, as the Claimant does in the instant case, the duty of the claimant to establish his case on its own strength cannot be compromised, the weakness of the defence or even the admission of the defence notwithstanding. In support of this submission counsel relied on the case of Oyetola v Adeleke & Ors (2019) LPELR-47529(CA).
145. Counsel posited that when CW1, the Claimant himself, was confronted under cross examination, and asked if there is any document by way of offer of employment from the 2nd Defendant to him before this court, his reluctant answer to the question, but his answer nevertheless, was that there is ‘NONE’ before this Court. Again, CW1 was confronted with Exhibits C2 – Offer of Employment from Resource Intermediaries Limited, and asked to read the document to the hearing of the Court, and which he did. The letter, Exhibit C2, expressly stated that he is not, by virtue of Exhibit C2, a staff of the Bank (2nd Defendant), hence, his ‘conditions of service are not similar to those of the Bank’s staff. He has not even so much as alleged that he was or had ever been on same terms or receiving the same pay as the Bank’s employee. Yet, magically, he says he is their employee. Exhibit C12 issued to Claimant is a Sub-Contract Identity Card to enable him gain access to the 2nd Defendant’s branch to perform his assigned duties, and in all ramifications, is very dissimilar to Exhibit DW2A, Keystone Bank Limited’s Staff Identity Card of Chinenye Coco-Bassey. Yet the Claimant has decided that Exhibit C12, even without an employment letter, somehow, proves his employment by the Bank.
146. Counsel also submitted that it is trite law that in civil cases, that party that asserts in his pleadings the existence of a particular fact is required to proof such facts by adducing credible evidence. If the party fails to do so, his case will fail. In addition the plaintiff is required to prove his case as a whole. To support this submission reliance was placed on the case of Registered Trustees of International Islamic Relief Organization, Kaduna v. Keystone Bank & Ors. (2018) LPELR-45089 (CA). In this case, from the totality of the evidence of CW1, the exhibits tendered, and his evidence which was so totally discredited under cross examination, it is crystal clear that the Claimant has failed woefully to discharge this simple legal responsibility. Thus, he is not to the reliefs he claims. Learned Counsel on his behalf cannot now turn around to put words in the mouth of either his client or the defendants’ witnesses, to now say that the purported but fictitious employment of CW1 with the 2nd Defendant can be implied without a letter of appointment because he continued “to work for” the 2nd defendant after the termination of the Contract with Resource Intermediaries Limited. That is simply not available in view of both the evidence before the Court, and the evidence not before the Court (i.e. lacking). Counsel made reference to the case of Oforishe V Nigerian Gas Company Limited (2017) LPELR-42766(CA), where the Court of Appeal held that the main purpose of Address is to assist the Court. Cases are decided not on Address or alluring closing speeches but on credible evidence. So, no amount of brilliant address can make up for lack of evidence to resolve any issue before this Court. counsel urged the court to so hold, and to discountenance the misplaced argument of the Claimant via learned Counsel.
147. In concluding his submission counsel argued that the resolution of the foregoing matters in the manner suggested herein effectually also disposes of the Claimant’s Issue 3. Counsel reiterate his positions as asserted in their final written address, refute with the Claimant on his Address, and urged the Court to dismiss the Claimant’s case in its entirety for lack of merit, with substantial cost in favour of the 2nd defendant.
COURT’S DECISION:
148. I have carefully and painstakingly perused the processes filed and the evidence led at the trial in this suit. I have equally deeply considered the written and oral submissions of counsel postulating the positions of their respective clients.
149. It is clear to me from the facts of this case that the germane issue that needs to be resolve in this case is the question bordering on validity of termination of claimant’s employment by the 1st defendant in this case.
150. However, before proceeding to determine the main issue calling for resolution, I shall deal with certain other preliminary issues raised by counsel in their final written addresses. These issues are so fundamental to the dispute before the court.
151. First, is the issue of whether proper parties are before the court in other word whether the absence of Resource Intermediaries Nigeria Limited is fatal to the claimant’s action before the court?
152. According to the 1st defendant the claimant has vide paragraph 4 of the claimant’s witness statement on oath has categorically stated that he was employed by the 2nd defendant. And that 1st defendant is stranger to his employment; the 1st defendant has no business with the employment of the claimant. The claimant insists that he was employed by agent of 2nd defendant i.e Resource Intermediaries Nigeria Limited and that the 1st defendant is stranger to his employment. This according to the 1st defendant means that the claimant has no business suing the 1st defendant in this case. The 1st defendant is of the view that the claimant has not brought before the court proper parties, as the 1st defendant being stranger is not a proper party in this case. It is only the employer of the claimant that should have been made party to this suit. It is submitted that it is only proper parties that can clothe court with jurisdiction. Thus, it is argued that where parties or one of the parties is not a proper party before the court, the court lacks jurisdiction to hear the suit. Counsel maintained that the issue of proper parties affects jurisdiction of the court and goes to the root of the case.
153. For the claimant it is submitted that the submission of 1st defendant on proper parties has supported and backed the claimant’s case that his dismissal/termination of employment is illegal, wrongful, unwarranted and contrary to labour best practices. Furthermore, the 1st defendant at this stage of the proceeding is estopped from raising issue of non-joinder of Resource Intermediaries Nigeria Limited as proper party whom claimant has no cause of action against in the first instance. The reason being that the 1st defendant has waived the right to raise issue of non-joinder with participation in the proceedings up to this stage of address. This is because it is a procedural irregularity which ought to have been raised at earliest opportunity which has slipped away from the 1st defendant.
154. The starting point in resolution of this issue is to look at the relevant provisions of Order 13 Rules 1, 4 and 6(1) of the National Industrial Court of Nigeria (Civil Procedure Rules, 2017; which provides as follows:-
1. All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.
4. Any person may be joined as Defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the Defendants as may be found to be liable, according to their respective liabilities, without any amendment.
6.—(1) It shall not be necessary for every Defendant to be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against such a Defendant
155. It is patently clear from the above quoted rules that a claimant has the right of choice of parties to pursue in respect of any claim which he has against the parties whether jointly or severally. This choice is that of the claimant. Therefore, he may decide not to sue any party he does not want pursue. The paramount consideration or factor for suing a party is that there is allegation or complaint of wrong doing or existence of any right for a relief against the defendant.
156. In this suit it is crystal clear from the reliefs being sought which have been reproduced in the earlier part of this judgment, the claimant clearly seeks for setting aside of the unreasonable, unlawful, wrongful and unwarranted suspension and subsequent purported termination of his employment with the 2nd defendant by the 1st defendant. He is also claiming payment of salaries from the date of suspension to till determination of this suit.
157. Exhibits C4 and C5 are the letters of suspension and termination which the claimant want the court to set aside. The 1st defendant was the author of the two letters. The letters were written by the 1st defendant based on the directives of the 2nd defendant. With the plain and unambiguous reliefs being sought against the defendants, can it be said that the 1st defendant is not a proper party in this suit or that the jurisdiction of this court has been lost because of absence of Resource Intermediaries that issues exhibit C2 and C3 to the claimant.
158. Let me reiterate that it is the Claimant that decides who to sue or who he feels he has cause of action against. In GREEN vs GREEN (1987) 3 NWLR (PT.761) 480, it was decided that for a person to be made a party, it must be such that the proceedings cannot be fairly, effectively and effectually conducted in the absence of such party. Again, it is the writ of summons and the statement of claim that has to be scrutinized in arriving at that decision. I have scrupulously examined the general form of complaint and statement of facts in this case. It is clear to me that the reliefs being sought by the claimant in this suit are against the two defendants, now, before the court.
159. In the locus classicus GREEN VS GREEN (1987) 3 NWLR (PT.61) 480 at 493 or (1987) 18 NSCC (PT.2) 1115, the meaning of ‘proper parties’ 'describable parties' and 'necessary parties' were given by the Supreme Court per OPUTA JSC (now of blessed memory) where he held that:-
"This now leads one to the consideration of the difference between 'proper parties', 'described parties' and necessary parties." Proper parties are those who ought not interested in the plaintiff claim, are made parties for some good reasons e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties settled unless they are parties to the action instituted by the plaintiff."
160. In BABAYEJU VS ASHAMU (1998) 9 NWLR (PT.567) 546, the Apex Court, held that a necessary party is someone whose presence is necessary as a party and the only reason which makes it necessary to make a person a party to an action is that he should be bound by result of the action, and the question to be settled must therefore be a question in the action which cannot be effectually and completely settled unless he is a party. See also PEENOK INVESTMENTS LTD VS HOTEL PRESIDENTIAL (1982) 12 SC Page 1; CARLEN (NIG) LTD vs UNIVERSITY OF JOS (1994) 1 SCNJ 72 or (1994)1 NWLR (PT.323) 631. RTNA & ORS VS MHWUN & ORS (2008) 1 SC (PT.III) Page 1; COKER Vs ADEYEMO (1968) NMLR 323 at 324. On the basis of the above principle of law relating to necessary parties, I have perused the general form of complaint and statement of facts commencing this suit with particular reference to the relief sought therein by the claimant. It is apparent that the main complaint of the claimant borders on suspension and dismissal/terminated of his employment by the 1st defendant, when according to him the 1st defendant was not his employer.
161. From the claim before the court the claimant has laid accusation of wrong doing against the 1st and 2nd defendants regarding his employment. The claimant's grouse as shown in the statement of facts (pleading) is against the two defendants before the court and not against Resources Intermediaries Nigeria Limited against whom there is no relief sought against. The mere mention of the name of the Resource Intermediaries Nigeria Limited does not of necessity create a legal obligation to have it joined as necessary party when there is no complaint of wrong doing against it.
162. What is more, as pointed out earlier in this judgment, it is the duty of the claimant to bring to Court any party whose presence is crucial to the resolution of his case because only him can decide on the person he believes he has a relief against. In the case at hand the claimant has made a decision which has to be respected
163. Further to this is the trite position of the law that where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu , the non-joinder will not be taken as a ground for defeating the action. The said rule is designed to save rather than to destroy, to cure rather than to kill the action or Suit. See GREEN VS GREEN (Supra), PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL, (Supra). In BELLO VS INEC (2010) 8 NWLR (PT.1196) 342, the Supreme Court held that the law is settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. See also IBRAHIM VS OJONYE (2012) 3 NWLR (PT.1286) 108; SAPO VS SUNMONU (2010) 11 NWLR (PT.1205) 374; OKOYE vs NIGERIAN CONSTRUCTION & FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501.
164. Therefore, it is my view that Resource Intermediaries Nigeria Limited is not necessary party in the instant suit whose presence is imperative for the effective and effectual determination of the issues in contention and the non-joinder of Resource Intermediaries Nigeria Limited is not fatal to the claimant’s case.
165. This issue is accordingly resolved against the 1st defendant in favour of claimant.
166. The second issue to be thrashed is whether the evidence of DW2 amount to hearsay having stated under cross examination that the evidence she gave was what she was told. According to counsel for the claimant the evidence/answers to questions given by DW2 portrayed that her evidence is hearsay evidence which is not admissible in law. Counsel urged the court to disregard the evidence of DW2, in its entirety same being second hand evidence.
167. In reaction to the submission that the evidence of DW2 is hearsay, counsel for the 2nd defendant submitted that it is misconception to regard evidence of DW2 as hearsay. According to counsel, DW2 did not give evidence of an oral statement that she heard or repeated from anyone else. To buttress the point being made counsel refers to paragraph 1 of the witness statement on oath of DW2, where she stated, thus:
“1. I am currently the Service Manager at the Calabar Main branch of the 2nd defendant on record. By virtue of my position and employment as aforesaid, I am familiar with the facts of this case, In addition to my personal knowledge of the facts of the case. I have also studied the relevant files/records regarding the employment of the Claimant, kept in the custody of the 1st defendant.’’
168. Counsel contended that both in logic and law evidence of DW2, cannot be regarded as hearsay for the simple reason that DW2 is a staff of corporate entity that act through natural persons. On this submission reliance was placed on the cases of Anaja V UBA Plc (2011) 15 NWLR (Part 1270) 377, Interdrill Nigeria Limited v, United Bank for Africa Plc (2017) 13 NWLR (Part 1581) 52 at 67. Counsel submitted that any servant or agent of the entity can give evidence and tender documents to establish any transaction or activities regarding the entity. That servant or agent need not have actually taken part in the transaction or activity.
169. The issue of who may testify for and on behalf of a company in court agitates mind of judges. There is no doubt section 38 of the Evidence Act 2011 prohibits the admissibility of hearsay evidence. And section 126 of the Evidence Act provides that oral evidence shall, in all cases be direct; it must be testimony of a person who saw or heard or perceived the event.
170. The 2nd defendant in this case is an artificial entity not a natural person who can appear physically to testify in court. Because of this challenge the law allows employees of a legal entity like the 2nd defendant to testify on behalf of the entity. See Kate Enterprise Ltd V Daewoo Nigeria Ltd (1985) 2 NSCC 942, Ishola V Societe Generale Bank (Nig) Ltd (1997) 2 NWLR (Pt.483) 405, Quo Vades Hotels & Restaurants Ltd V Commissioner of Lands (1973) 3 ECSLR 416, 432, Salaeh V Bank of the North (2006) 6 NWLR (Pt.976) 316.
171. Though; a legal entity is entitled to field any of its staff to testify and the testimony will not be hearsay, such evidence will still be subjected to doctrine of evidential value. Therefore, if a member of staff that has nothing to do with a transaction is fielded to give evidence, the evidence may end up being lighter than the air when it is found to have no evidential value.
172. This issue is resolve against the claimant in favour of the 2nd defendant, in that the evidence of DW2, will not be regarded as hearsay but the evidence will be subject evaluation and weight to be attached to the evidence like any other evidence given before the court.
173. The third issue that need to be dealt with is the issue bordering on alleged incompetency of the witness statements on oaths of DW1 and DW2. The counsel for the claimant has in his addresses filed in reaction to the defendants addresses has argued that on the authority of Buhari V INEC (supra), that the two witnesses statements on oaths of the defendants witnesses are incompetent and the court should reject them as the witnesses have under cross examination stated that the witness statements on oaths were signed in their offices. For DW1, she said her statement on oath was signed either in the lawyer’s office or her office.
174. The counsel for the 1st defendant did not file any response to the claimant’s argument on incompetency of the witness statement on oath of DW1. This suggests that counsel does not have answer or response to the challenge to statement on oath of DW1.
175. For the 2nd defendant it was argued that section 112 of the Evidence Act does not apply to disqualify the witness statement on oath, of DW2, as the said section applies to affidavits only. A witness statement on oath is not the same thing with an affidavit. That signing of witness statement on oath not before commissioner for oaths is an irregularity that does not vitiate and is cured when the witness appears in court and adopts it as his evidence. Counsel also distinguished Buhari V INEC’s case and this case as not being on all fours.
176. The counsel for the claimant has forcefully argued that the claimant’s witness statement on oath filed along with the originating processes is incompetently before the court as the said depositions on oath was signed at the office of the claimant’s lawyer or in the offices of the witnesses and not before the commissioner for oath who is the legally recognized person before whom such deposition should be taken or signed. The objection of the claimant to the witness statement on oaths of DW1 and DW2, stems from the evidence of the witnesses given under cross-examination.
177. For DW1 she stated under cross examination that; ‘’this is the first time I came to Calabar. On 11/6/2020, I was in the 1st defendant’s office at Port Harcourt. That was the day I deposed to my witness statement on oath. I cannot remember where I signed my witness statement on oath. It is either in my office or in my lawyer’s office. But, I cannot remember exactly ‘’. For DW2, her witness statement on oath of 23/6/2020 was shown to her in open court and she stated that she signed the said witness statement on oath in her office.
178. The objection to the two witnesses statements on oath was based on the facts that the two witnesses i.e DW1 and DW2, have told the court under cross examination that they signed their depositions on oaths in their offices. This according to the claimant has made the two witnesses statements on oaths incompetent, ineffective and a nullity for not having been signed by the DW1 and DW2, before the commissioner for oath.
179. Vide Order 15 Rule 1(1) (d) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, one of the documents to accompany statement of defence shall be written statement on oath of all witnesses listed to be called by the defendant. It is in compliance with this rule that the defendants accompanied their respective statements of defences with witness statements on oath which the defendants’ witnesses adopted before the court on 18/10/2021, in the course of their oral testimony.
180. There is no dispute that the defendants’ witnesses did sign their respective witness statement on oath in their offices or in their lawyer’s offices. Therefore, the signing of the witness statements on oath was not before the Commissioner for oaths. It is to be noted that the counsel for the defendants did not re-examined their witnesses at the end of the cross-examination by the counsel for the claimant for purposes of correcting the damage the evidence will have cause.
181. In the circumstance, what DW1 and DW2, told the court under cross-examination stands as the truth, i.e. they did sign their witness statements on oath in their offices. Since there is no any evidence to the contrary, the evidence of DW1 and DW2 on signing of their witness statements on oath remains unchallenged. The said piece of evidence is hereby accepted as the truth.
182. It is to be noted that with the decision of the Supreme Court in the case of BUHARI V. INEC (2008) 12 SCNJ 1 @ 91, which was religiously followed in the latest Court of Appeal decision in the case of ALIYU vs. BULAKI (2019) LPELR-46513(CA), the law is now well settled beyond any reproach that witness statement on oath signed in the chambers of a counsel or in any office not before the Commissioner for oaths is null and void and of no effect. Such a witness statement on oath is unreliable for use in the proceedings before the court. This is because a witness statement signed in the chambers of a counsel or in the witnesses offices violates the Evidence Act and Oaths Act.
183. The witness statement on oath to accompany statement of defence by the provision of Order 15 Rule 1(1) (d) of the rules of this court is akin to the deposition in an affidavit. Both deposition in an affidavit and deposition in a witness statement on oath are simply statement of a witness made under oath out of Court. In either case, to make the affidavit, the written statement under oath acceptable for use, they must be sworn before the person duly authorized to take oaths. Section 112 of the Evidence Act provides: "An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner." By the decision in BUHARI VS. INEC (supra), witness statement on oath is akin to an affidavit sworn to before Commissioner for oath.
184. By the provision of section 112 of the Evidence Act, an affidavit will not be admitted or acceptable for use in any of the four mentioned instances namely, where it is sworn before: (a) a person on whose behalf the same is offered; (b) his legal practitioner; (c) a partner; (d) a clerk of his legal practitioner. Further to the requirement of swearing to the affidavit by a deponent and the exclusion of any affidavit or deposition shown to have been sworn before any of the four classes of persons mentioned in Section 112, a further requirement to authenticate an affidavit sworn before a person duly authorized to take oaths is provided in Section 117 (4) as follows; "An Affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken."
185. A global view of the provisions of Sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs, Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides: "No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested." Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public, it is manifestly clear that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath.
186. This is so because a deponent's legal practitioner is a person interested in the proceedings and therefore disqualified from Notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a Notary public, being legal practitioner representing the party in the suit, is precluded from notarizing any document for the claimant for use in the case.
187. Additionally oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath. It includes most importantly, compliance with Section 5 (1) (a) & (b) of the Oaths Act, which requires the person taking the oath if a Muslim, to place both hands on a copy of the Holy Qur'an, if a Christian, to hold in his right hand a copy of the Holy Bible or of the New Testament and if a Jew, to hold in his uplifted hand a copy of the Old Testament and to then repeat after the person administering the oath, the prescribed words. It is after this has taken place, that the commissioner for Oaths verifies the contents and then confirms that same was signed in his presence by endorsing his own signature to that effect. Therefore, for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE VS. SPDC (NIG.) LTD. (2008) 9 NWLR (Pt. 1093) 593; MARAYA PLASTICS LTD. VS. INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109.
188. The conditions necessary to make an affidavit competent were stated in the case of DR. MUHAMMAD IBRAHIM ONUJABE & ORS. VS.FATIMA IDRIS (2011) LPELR - 4059 (CA) as follows: "The Oaths act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance. The appearance of stamp and signature of Commissioner for oath only raised the presumption of regularity. But this presumption is rebutted with the categorical evidence of DW1 and DW2, that they signed their deposition on oath in their offices or their lawyers’ offices. This means the depositions were made in violation of the law.
189. The 2nd defendant’s reliance on section 4(2), (3) of the Oaths Act, cannot be of any assistance as the said provisions of the law relates to form of the oaths and substance, non-signing before Commissioner for Oaths cannot be an irregularity. It is a fundamental defect to substance and not form.
190. In a similar and clear tone on the effect of violation of the provisions of Sections 112, 117 (4) of the Evidence Act and 19 of the Notaries Public Act, MUKHTAR, JSC as he then was in BUHARI V INEC (Supra) held:
"It is settled law that an affidavit that is bereft of the requirements of the law, it is expected to meet, (most especially not a mere defect in the format that can be admitted with the leave of Court) will not be accommodated, (because, as it is in this case the error is fundamental) but must be rejected, and if already admitted must be expunged."
191. With the rebuttal of the presumption of regularity by the evidence of DW1 and DW2, the case of BUHARI V INEC (supra) comes to play to render the witness statement on oath fundamentally defective, the depositions having been signed in the offices of the witnesses or offices of their lawyers, are in law incompetent.
192. It is pathetic that there is nothing this court could do than to follow the law. This court by the doctrine of stare decisis is duty bound to follow the decisions of the apex court and court of appeal. Albeit, the counsel for the 2nd defendant despite the overwhelming evidence of signing of witness statement on oath at the offices of the witnesses or offices of their counsel, still insisted that the objection of the counsel for the claimant amount to technicality. Having found violation of the provisions of the law the objection cannot in all respect be said to be based on technicality.
193. It must be remembered that an objection may amount to technicality where a party quickly takes an immediately available opportunity, however, infinitesimal it may be, to work against the merits of the opponent’s case in other words he holds and relies tenaciously unto the rules of court with little or no regard to justice of the matter. See YUSUF V ADEGOKE (2007) 11 NWLR (PT.1045) 332. Technicality is always in terms of rules of court. See ATANDA V AJANS 1989 3 NWLR PT.111 511 SC.
194. There is no doubt that the current trend in our jurisprudence is to lean towards doing substantial justice and disregard technicality. However, where a matter has been settled by the apex Court, the decision of the apex court becomes binding on this court and other subordinate Courts. It must be made clear that this Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to overruling the decisions of the apex court and court of appeal. This court as trial dares not to embark on such futile exercise. This court having not been shown that the decision in BUHARI V INEC (supra) has been overruled by subsequent decision of the apex court cannot depart from the said decision. It is binding on this court and must be applied appropriately. As the Court of appeal has done in the recent decision of ALIYU vs. BULAKI (2019) LPELR-46513(CA).
195. In view of the foregoing, the defendants witnesses statements on oaths having been shown to have been sworn in the witnesses offices or the offices of their counsel clearly violated the clear and unambiguous provisions of Sections 112, 117 (4) of the Evidence Act and section 19 of the Notary Public Acts, the said witness statement on oath, on the authority of BUHARI VS. INEC (Supra), and Aliyu V Bulaki (supra), the witnesses Statements on oaths of DW1 and DW2, are hereby expunged from the record together with the exhibits tendered through them. As the defect in the swearing of the depositions, is intrinsic to the competence of the depositions and renders them fundamentally defective.
196. With the expunging of the defendants witness statement on oath there is nothing left in terms of evidence in proof of the defence put forward by the defendants. The reason being that this court is now left with bare pleading of the defendants without evidence to prove the averments contained therein. The law is trite that mere averments in pleadings without proof of the facts pleaded amount to abandonment of the pleadings. See Idesoh V Ordia (1997) 3 NWLR (PT.491) 17, Adegbite V Ogunfeolu (1990) 4 NWLR (PT.146) 578 Moboriwo V Ajasin (1984) 1 SCNLR 108, Iroagbara V Ufomadu (2009) 11 NWLR (PT.1153) 578. The abandonment of the pleadings by the defendants without evidence in proof means the defendants have failed to establish their defences.
197. The question now to be resolved is, can absence of defence entitled the claimant to judgment. The absence of proof of defence does not ipso facto mean that judgment must be given in favour of the claimant. The law still requires the claimants to meet up with minimal proof for him to be entitled to judgement. The rule, by the minimal evidential requirement, is that a claimant cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court see Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt.70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt.1057) 218 SC at 247. See also this Court’s decision in Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC.
198. The counsel for the claimant has made heavy whether on discharge of burden of proof based on the nullity of the defendants witnesses statements on oaths which according to counsel means admission of the claimant’s claim.
199. By the decision of the Supreme Court in the case of Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt.1095) 399; [2008] 5 - 6 SC (Pt. II) 47, “a claim is circumscribed by the reliefs claimed”. And the claimant is to only supply sufficient evidence to establish his case. Likewise the defendants’ duty is to adduce evidence in proof of their defence.
200. The claimant is vide this suit praying the court for setting aside his suspension and dismissal from service which was subsequently converted to termination of his employment. The alleged suspension, dismissal and termination was said to have been master minded by the 2nd defendant through connivance with the 1st defendant. The claimant is also claiming payment of salaries from the date of his suspension to date.
201. The 1st defendant on its part is asserting that the claimant’s employment has been transferred to it to adopt the claimant as its employee in furtherance of an agreement the 1st defendant had with the 2nd defendant where the 1st defendant was engaged by the 2nd defendant to outsource or supply labour to the 2nd defendant.
202. For the 2nd defendant it is claiming that the claimant is not her employee, he was only posted by Resource Intermediaries to work with the 2nd defendant, as per his employment in exhibit C2. Vide exhibit C3, the claimant’s employment was transferred to the 1st defendant, the claimant thereby becoming employee of the 1st defendant serving the 2nd defendant. The 2nd defendant insisted that clamant is not her employee as there is no letter of employment issued to the claimant by the 2nd defendant.
203. According to the 2nd defendant for the claimant to succeed on his claims he must place before the court the condition of service governing his contract of employment. He has to also show how the terms and conditions of contract of employment were breached by the defendants and the manner in which the breach occurred. It is the position of the 2nd defendant that the failure by the claimant to place before the court terms and conditions of service, means that the claimant has woefully failed to discharge the burden of proof imposed on him by law. The position taken by the 2nd defendant seems to be based on the assumption that there was a written contract of service entered into by the claimant with the 2nd defendant and there is in place condition of service governing the claimant’s contract of service.
204. Though; in contract of employment the relationship between a master and his servant or an employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. This means an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184.
205. Both the 1st and 2nd defendants relied inter alia on exhibit C3, in their quest to prove transfer of service of the claimant to the 1st defendant. They equally relied on exhibits C4, C5 and C11, as well as the alleged conduct of the claimant in not protesting issuance of exhibits C4 and C5, the letters of suspension and dismissal.
206. The claimant vide exhibit C2, was employed by Resource Intermediaries Nigeria Limited, thereafter he was posted to work with the 2nd defendant. In the course of the employment the claimant was served with exhibit C3 a letter titled ‘’transfer of Service’ the content of the said letter are hereby reproduced for ease of reference.
1st June 2019
Ette Anthony Anieseba
C/O Keystone Bank Limited
Eket Branch.
Dear Anthony,
TRANSFER OF SERVICE
We have been advised by our client, Keystone Bank Limited of management’s decision to realign its strategic focus with effect from 1st July 2019.
Consequently, your services seconded to Keystone Bank limited Eket Branch will be transferred to another service provider as may be determined by the Bank with effect from July, 1st, 2019.
This letter therefore, serves as one month notice for disengagement of your service with Resource Intermediaries limited.
We wish you a successful and rewarding career.
Your Faithfully
For: Resource Intermediaries Limited
SGN
Opeyemi Bello Joseph Adagbogun
Group Head, Business Support Services. Group Head, Operation.
207. The content of exhibit C3, quoted above is very clear and unambiguous. It says what it says. Though the title of the letter stated to be for transfer of service, the content of exhibit C3 betrayed that title. The content clearly was to give the claimant one month notice of termination of his employment as per exhibit C2. There is nothing in exhibit C3 to suggest that the services of the claimant have been transferred to the 1st defendant. What is discernable in exhibit C3 regarding transfer of service is that the claimant has been informed that his services will be transferred to another service provider as may be determined by the 2nd defendant.
208. In law in interpreting a document it is the content that are paramount and not the title. What is clear to me from the evidence before the court is that the claimant had his employment with Resource Intermediaries terminated with effect from 1/7/2019 and the 2nd defendant decided to continue with the services of the claimant because he was allowed by the 2nd defendant to continue to render services to the 2nd defendant at its Eket Branch.
209. It is also evident at the expiration of notice of termination no new letter of employment has been issued to the claimant or letter of transfer of service has been issued to the claimant. Rather, the claimant continued with his job with the 2nd defendant undisturbed until when exhibit C4 was issued to the claimant by the 1st defendant on the instruction of the 2nd defendant suspending the claimant from service. The suspension of the claimant from service by the 1st defendant culminated in the dismissal of the claimant as per exhibit C5, which was also on the directive of the 2nd defendant.
210. It is to be noted that the dismissal of the claimant from service was converted to termination following the letter of complaint written by his lawyer to the defendants. See exhibit C6. The evidence of service of exhibit C6 on the defendants is depicted in exhibits C7 and C8 respectively. The letter converting claimant’s dismissal to termination is evidenced in exhibit C11.
211. Now, the controversy between the claimant and the defendants relates to the status of the employment of the claimant as at 1/7/2019. The resolution of the status of the claimant as at 1/7/2019, will be the determining factor as to the legality or otherwise of the suspension, dismissal and subsequent conversion of dismissal to termination.
212. It must not be forgotten that a contract of service, is a relationship entered into between two or more persons employer and employee (master and servant) where by the employee or servant agree to serve the employer or master and to be subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit i.e payment of salary or wages. In the case of NIGERIA AIRWAYS V GBAJUMO (1992) 5 NWLR (Pt.244) 735, the Court of Appeal held that the relationship of master and servant is characterized by:
a. A contract of service made under seal, oral or inferred from the conduct of the parties.
b. Payment of wages and salaries.
213. The court went further to say that where one party employs another, appoints him to various positions in its establishment, pays his salary and allowances, these acts constitute sufficient fact from which a contract of employment can be inferred.
214. The difficulty in arriving at the proper status of an employee has been prevalent over the years and has been compounded by globalization. Thus, why courts have evolves certain criteria for revealing the actual status of employee. In Shena Security Co. Ltd V Afro Pak (Nig.) Ltd (2008) 18 NWLR (Pt.1118) 82, the Supreme Court gave an insight on how to ascertain the requisite legal status of an employee.
215. The relationship that was created by exhibit C2, is that of a triangular employment relationship between the claimant, Resource Intermediaries and the 2nd defendant. See PENGASSAN v. Mobil Producing Nigeria Unlimited (2013) 32 NLLR (Pt.92) 243, where this court held that ‘’the disguised employment relationship of the parties comes in the form of a triangular employment relationship. Which is a relationship that occurs when employees of an enterprise (the ‘’provider’’) perform work for a third party (the ‘’user enterprise’’) to whom their employer provides labour or service. The triangular relationship comes in a variety of forms, the best known of which is the use of contractors and private employment agencies. Like how it happened in case of exhibit C2. This kind of employment relationship has been recognized by the International Labour Organization (ILO). In cases of triangular or disguised employment relationships, the ILO enjoins on courts the principle of primacy of facts i.e. to emphasize substance over form. This means the 2nd defendant in this case is a co-employer of the claimant as far the relationship created by exhibit C2.
216. By exhibit C3, the triangular relationship existing between the claimant, Resource Intermediaries and 2nd defendant came to an end. But, despite the termination of the claimant’s employment by Resource Intermediaries Nigeria Limited, the claimant continued to serve the 2nd defendant until when exhibit C4 and C5 and C11 were issued by the 1st defendant to the claimant on the instruction of the 2nd defendant.
217. The 1st defendant in its pleading which had been abandoned is claiming to be employer of the claimant as a result of exhibits DW1G and DW1I. These exhibits have been expunged from the record of the court following the expunging of the witness statement on oath of DW1 due to its incompetency. This means there is nothing for the 1st defendant to establish being employer of the claimant. Even if exhibits DW1G and DW1I, were not expunged from the record, they are not capable of vesting in the 1st defendant status of being employer of the claimant. The reason being that the said documents were silent on the purported transfer of claimant to the 1st defendant. The provisions of the two exhibits were for the 1st defendant to supply labour to 2nd defendant when required and there is nothing before the court to show that the 1st defendant employed the claimant and posted him to the 2nd defendant to work in furtherance of contract of service the 1st defendant had with the 2nd defendant as shown by the expunged exhibits DW1G and DW1I. To this extent I agree with the claimant that the 1st defendant is stranger to his relationship with the 2nd defendant. Therefore, the 1st defendant has no locus to discipline the claimant as depicted in exhibits C4, C5 and C11, respectively.
218. The 2nd defendant has on its part insisted that it is not employer of the claimant as there is no written proof of such relationship. Here, the 2nd defendant appears to have gloss over realities about the world of work where the traditional forms of work are being altered by the day. To start with, it is possible today for the Court to imply terms in a contract of employment. In the words of Amina Audi Wambai, JCA (delivering the leading judgment) in Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA):
‘In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subjugate the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q - D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.
219. The argument of counsel for the 2nd defendant on the need for claimant to prove conditions of service seems not to have taken cognizance of the present realities and peculiarities of the modern world of work. In appropriate circumstances, this Court can imply terms and conditions of service and this is one of such appropriate case.
220. The court have also recognized that contract of employment can be in writing, oral or by conduct of parties. See Shena Securities Ltd V Afro Pak (supra).
221. As at 1/7/2019, the claimant’s disguised employment where he serves with the 2nd defendant came to an end and the 2nd defendant did not release the claimant but continued with the service of the claimant. Presumably the continued service of the claimant with the defendant was said to be based on transfer of claimant’s service to the 1st defendant. However, there is iota of evidence to establish that there was indeed a transfer of service where the claimant‘s services were transferred to the 1st defendant. The evidence before the court suggests that there has been an attempt by the 1st defendant to adopt the claimant as its employee. But, the process of adoption has not been completed with issuance of letters of formalising the transfer. This means as at 19/10/2019 when the 1st defendant issued exhibit C4, the claimant has not becomes its employee. Therefore, exhibit C4 was wrongfully issued by the 1st defendant. Likewise as at 19/12/2019, when exhibit C5 was issued the claimant had not fully become a staff of the 1st defendant. This means all the disciplinary action and hearing conducted which culminated in dismissal of the claimant from service as far exhibit C5 were taken by the 1st defendant without vires. This also means that the letters of suspension and dismissal were wrongly issued to the claimant. It is equally clear to me that exhibit C11 containing letters of conversion of termination from dismissal to termination were not appropriately issued as the 1st defendant not being employer of the claimant, has no locus to issue those letters. The 1st defendant acted ultra vires.
222. What emerges from the evidence before the court is that the claimant as from 1/7/2019 has started a new contract of employment with the 2nd defendant and the said employment contract was not based on any written agreement it was a contract established by conduct of the parties.
223. The claimant has in his claim sought for payment of his salaries from the date of his suspension vide exhibit C4 to December 2019 a period of six Months amounting to the sum of N411,392.94 @ N68,565.49 and thereafter from January 2020 till determination of this matter. The claimant has tendered exhibit C10 bank statement of account which shows and proved his monthly salary. From January 2019 to June 2019, the claimant has been receiving the sum of N61,385.93 as his monthly salary. But, for July 2019 the claimant was paid the sum of N41,816.77. what the claimant is entitled to be paid is his salary from August 2019 to 24th December 2019, plus the sum of N19,569.16 which is the balance of salary for July 2019.
224. The total sum the claimant is entitled to from August 2019 to December 2019 i.e five Months at the rate off N61,385.93 plus the sum of N19,569.16 balance for July 2019, the claimant will be entitled to the sum of N326,498.81.
225. It is clear to me that the claimant is entitled to payment of five Months’ salary from August 2019 to December 2019, plus the balance for July 2019. The reason being that the suspension of the claimant and his dismissal as per exhibits C4, C5 and C11 has been found to be wrongful.
226. However, the claimant is not entitled to any salary from January 2020 to date as he has not worked for the 2nd defendant during the period. The reason being that the 2nd defendant has plainly indicated by its instigation of the 1st defendant to wrongfully without any vires to do away with the employment of the claimant, the conduct of the 2nd defendant clearly demonstrated that it no longer need services of the claimant. Therefore, the employment of the claimant from 1/7/2019 to 24th December 2019, is deemed to have come to an end on 24/12/2019, date of purported conversion of dismissal of the claimant to termination of employment. The reason being that in master and servant employment, termination the employment can be done orally or in writing or by conduct. See Ifeta V Shell (2006) ALL FWLR (Pt.314) 305 @ 334, Keystone Bank Ltd v. Mr Joseph Onoriotakpo Clarke [2020] LPELR-49732(CA).
227. The law is that a servant cannot sue for wages if he has not rendered services where the wrongful dismissal prevents him from rendering services. This leave the employee with claim for damages as the only remedy. See western Nigeria Development Corporation V Jimoh Abimbola (1966) 1 ALL NLR 159 @ 160 – 161, Spring Bank V Babatunde (2012) ALL FWLR (Pt.609) 1191 @1205, Imolome V WAEC (1992) 9 NWLR (Pt.265) 303, Obot V CBN (1993) 1 NWLR (Pt.310) 140.
228. The yardstick for payment of damages is the length of notice, express or implied that can lawfully be given to terminate the contract and the salary covered by this period is the amount recoverable in damages. See also Kato V CBN (supra), Keystone Bank Ltd v. Mr Joseph Onoriotakpo Clarke [2020] LPELR-49732(CA).
229. In the case at hand there are no written terms of employment specifying the length of notice, therefore recourse will be made to the provisions of Labour Act, by section 11(2) (b) of the Labour Act, the claimant having served the 2nd defendant for only about six Months is entitled to One weak notice or payment of salary for one weak in lieu of notice. The claimant is entitled to be paid one week salary in lieu of notice of termination. I so hold.
230. On reliefs (V) and (VI) the claimant is seeking for reinstatement and payment of aggravated exemplary and general damages. The law is trite that in an employment not governed by statute remedy for reinstatement is not available to employee. In master and servant relationship as in this case the claimant is only entitled to damages for the period of notice which is one week. Where termination is wrongful, the remedy is not reinstatement, the remedy available is damages. The reason being that court cannot foist an unwilling employee on an unwilling employer. See Adebayo Sunday Joseph & Ors V Kwara State Polytechnic & Ors. (2013) LPELR-21398(CA).
231. On damages I shall be guided by the decision in the case of British Airways Ltd V Makanjuola (1993) 8 NWLR (Pt.311) 276, where, Ubaezonu J.C.A has this to say:
‘‘the quantum of damages will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If wrongful termination of the appointment was as a result of the former, the quantum of damages recoverable may be the employees salary for the period of the required notice. But if it is due to the latter i.e malpractice, then such a termination carried with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required’’.
232. The Court of appeal in the case of Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806(CA), has supported the above case and it confirmed that the common law orthodoxy on measure of damages in termination or dismissal cases being salary for the length of time for which notice of termination ought to have been given is grossly inadequate. The Court of Appeal after considering the provision of Section 254C(1)(f) of the 1999 Constitution…and Section 7(6) of the National Industrial Court Act, affirmed the award of two years’ salary as measure of damages for unlawful termination of employment.
233. In view of the progressive decisions in British Airways V Makanjuola and that of Sahara Energy Resources Ltd V Mrs. Olawunmi Oyebola (supra), and in view of the fact that the termination of claimant’s employment was based on malpractices, the claimant is entitled to damages beyond the period of notice. In the circumstances of this case I award N2,000,000.00 (Two Million Naira) damages in favour of the claimant for the stigma of wrongful termination.
234. On the whole the claimant has proved that the suspension, dismissal and subsequent conversion to termination by the 1st defendant was wrongful as the said actions were taken by the 1st defendant without vires as the claimant is not its employee as the purported transfer has not been completed. As at the time of the purported disciplinary action that resulted in the claimant’s dismissal took place. The claimant is employee of the 2nd defendant having been allowed to continue rendering services to the 2nd defendant after the termination of his employment by Resource Intermediaries Nigeria Limited as per exhibit C3.
235. The 2nd defendant having clearly shows that it is no longer interested in the services of the claimant, the about six months old contract of employment of the claimant with the defendant is deemed to have been terminated with effect from December 2019, when the letter of conversion of dismissal to termination was issued by the 1st defendant in the circumstances the claimant is entitled to notice of termination which is one week or payment on one week salary in lieu of notice.
236. The termination having been based on malpractices the claimant is also entitled to damages for the stigma, in line with the decision in British Airways V Makanjuola (supra) and that of Sahara Energy Resources Ltd.
237. The claimant is entitled to cost, which I assess to be the sum of N500,000.00 (Five Hundred thousand Naira).
238. For avoidance of doubt the orders of the court are as follows:-
I. The claimant upon termination of his employment by Resource Intermediaries Nigeria Limited, became employee of the 2nd defendant as the 2nd defendant allowed the claimant to continue rendering service at its Eket Brach.
II. The 1st defendant lacked locus to terminate claimant’s employment as there is no privity of contract between the claimant and 1st defendant.
III. The claimant’s employment with 2nd defendant which commenced on 1/7/2019 was terminated on 24/12/2019, when the 1st defendant withdrew the dismissal letter served on the claimant.
IV. The claimant’s employment with the 2nd defendant was deemed to have been terminated on 24/12/2019.
V. The claimant is entitled to payment of salary from August 2019 to December 2019 when his employment came to an end. The claimant is also entitled to payment of balance of salary for the Month of July 2019 which is the sum of N19,569.16.
VI. The defendants are hereby ordered to pay the claimant the sum of N326,498.81, being salary for August, September, October, November and December 2019 plus the balance for the Month of July 2019.
VII. The defendants are hereby ordered to pay the sum of N2,000,000.00 (Two Million Naira), only as compensation for wrongful termination, and hence breach, of contract of the claimant’s employment.
VIII. The claimants are to pay the claimant cost assessed at the sum of N500,000.00 (Five Hundred Thousand Nara) only.
IX. All the terms of this judgment should be complied with within 30 days. Failure, to pay the judgment sums as stipulated shall attract 10% interest per annum, until final liquidation.
239. Judgment entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
Albert Ben, Esq; for the claimant.
Rev. D. O. Torthy, Esq; for the 1st defendant
Goldie Moses Ekasah, Esq; for the 2nd defendant.