IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE:FRIDAY JULY  15, 2022                                        SUIT NO.NICN/EN/25/2021

 

BETWEEN:

 

LAWRENCE AWUCHA…………………………..……….CLAIMANT

 

AND

 

ECOBANK NIGERIA PLC………………………………DEFENDANT

 

 

APPEARANCES:

1.     J.N. ELUKE – FOR THE DEFENDANT.

2.     NO REPRESENTATION  – FOR THE CLAIMANT.

 

JUDGMENT

INTRODUCTION

ORIGINATING SUMMONS [OS] commenced this suit September 22, 2021. It was accompanied with a Written Address [WA]. The questions formulated for the OS are:

(a)                            Whether from the construction of the defendant’s letter dated 29.06.2021, signed by its Adekunle Adewuyi (head of human resources), the claimant was not an employee of the defendant for 7 (seven) years and 6 (six) months before the defendant validly terminated claimant’s employment on 01.06.2016. [sic]

(b)                            Whether from the interpretation of Clauses 10.8.2; 10.8.3; 11.2.2; and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, the defendant did not create an exception to gratuity scheme and payments in clauses 10.8.2 and 10.8.3 by virtue of Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, as to entitle the claimant to gratuity payment. [sic]

(c)                             Whether the claimant’s duration of employment with the defendant for the period of 7 (seven) years and 6 (six) months should not be aggregated or approximated to 8 (eight) years of employment under the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016 [sic]

(d)                            Whether the claimant is not entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, at the sum of N7,200,000 (seven million, two hundred thousand Naira) only. [sic]

(e)                            ALTERNATIVELY, whether the claimant’s duration of employment with the defendant for the period of 7 (seven) years and 6 (six) months does not entitles claimant to gratuity payment under the gratuity scheme pursuant to clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, at the sum of N6,750, 000 (six million, seven hundred and fifty thousand Naira) only. [sic]

(f)                              Whether the claimant is entitled to general and special damages under the circumstances of this case. [sic]

 

Thereafter, the claimant set out the following reliefs:

1.       A DECLARATION that by virtue of the defendant’s letter dated 29.06.2021, signed by its Adekunle Adewuyi (head of human resources), claimant was an employee of the defendant for 7 (seven) years and 6 [six) months before the defendant validly terminated the claimant’s employment on 01.06.2016.

2.       A DECLARATION that Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016, created an exception to gratuity scheme under clauses 10.8.2 and 10.8.3 of the defendant’s Human Resources Policies and Procedures, April, 2016.

3.       A DECLARATION that the Claimant’s employment duration with the defendant for a period of 7 (seven) years and 6 (six) months is capable of being approximated or aggregated to 8 (eight) years of continuous unbroken employment, pursuant to Clause 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016.

4.       A DECLARATION THAT claimant is entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016 for the aggregated or approximated period of 8 (eight) years of employment with the defendant at the sum of N7,200,000 (seven million, two hundred thousand Naira) only.

5.       ALTERNATIVELY, A DECLARATION that the claimant is entitled to gratuity payment under the gratuity scheme pursuant to clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures of April, 2016 for the actual employment period of 7 (seven) years and 6 (six) months with the defendant at the sum of N6,750,000 (six million, seven hundred and fifty thousand Naira) only.

6.       AN ORDER of the Honourable Court directing and compelling the Defendant to pay the Claimant the sum of N7,200,000 (seven million, two hundred thousand Naira) only being the gratuity payment claimant is entitled to for the aggregated or approximated period of 8 (eight) years of continuous unbroken employment under the gratuity scheme pursuant to Clauses 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016.

7.       ALTERNATIVELY, ORDER of the Honourable Court directing and compelling the defendant to pay to the claimant the sum of N6,750,000 (six million, seven hundred and fifty thousand Naira) only being the gratuity payment the claimant is entitled for the 7 (seven) years and 6 (six) months actual period of continuous unbroken employment under the gratuity scheme pursuant to Clauses 11.2.2 and 2nd leg of Clause 11.2.4(b) of the defendant’s Ecobank Human Resources Policies and Procedures, April, 2016.

8.       AN ORDER of the Honourable Court directing and compelling the defendant to pay to the claimant general damages at the sum of N1, 600,000 (one [sic] and six hundred thousand Naira).  

9.        AN ORDER of the Honourable Court directing and compelling the Defendant to pay to the claimant special damages at the sum of N2,550,000 (two million, five hundred and fifty thousand Naira) as Counsel’s professional fees that include all 3rd party costs as cost of this action.

10.   AN ORDER of the Court directing and compelling the defendant to pay to claimant interest on the judgment sums at the rate of 21% (twenty-one percent) monthly from the date of judgment until the judgment sums are fully liquidated.

11.  AND FOR SUCH FURTHER ORDERS/ORDERS as this Honourable Court may deem fit to make in the circumstance.

 

The defendant responded to the above by Counter-affidavit [CA] filed 23/11/2021 accompanied with a WA. After the OS was heard 10th May 2022, the claimant replied the CA by Further and Better Affidavit [FABA] filed 31/5/2022. The next thing for me is summary of the proceedings.

 

SUMMARY OF PROCEEDINGS

The case first came up February 9, 2022 and was adjourned along with the two other sister cases to March 9, 2022 for hearing. It came up as adjourned but could not go on because, the claimant’s erudite counsel asked for adjournment to react to the CA. For this reason, it was adjourned, together with the other sister cases, to 10th May 2022 for definite hearing. It came up as adjourned, but the claimant and his counsel were not present and, on the application of the erudite defence counsel for striking out, the Court declined, but instead of being struck out, the matter was heard and adjourned for judgment June 22, 2022. Meanwhile, on 31st May 2022, after the case had been reserved for judgment, the claimant filed a FABA, which was brought to my attention and kitted into the file by the Court’s Clerk Mr. Anthony Ugwu on 22/06/22 – see the last endorsement at the front cover and its inside. As the judgment was not ready on 22/06/2022, it was adjourned off record sine die. When the judgment became ready, the date was communicated to the erudite parties’ counsel. I move to summary of the parties’ processes.

 

SUMMARY OF THE PROCESSES

A: Claimant’s AS and WA

The claimant averred his employment with the defendant and the defendant’s status as a corporate body; and that, the defendant duly terminated his employment on 01/06/2016 by a letter dated 31/05/2016. He averred that, he was originally employed by Oceanic Bank in 2008 and became a staff of the defendant, when it took over Oceanic Bank and that, he rose to the rank of Deputy Manager with salary of N900,000 before his appointment was terminated at 7 years 6 months. He mentioned Ecobank Human Resources Policies and Procedures, April 2016 [Handbook] as the applicable Handbook and relied on Clauses 10.8; 10.8.3; 11.2.2; and 11.2.4(b), which make the Handbook applicable to him and his entitlement to terminal benefits. He averred that, his 7 years 6 months could be approximated to 8 years and that; his terminal monthly salary of N900,000 is the base for calculation of his terminal benefits. He averred that, for the 8 years, he is entitled to N7,200,000 [seven million two hundred thousand Naira] only or alternatively N6,750,000 [six million seven hundred and fifty thousand Naira] only, if approximation is not granted; and proceeded to show the calculation.

He averred that, he caused his solicitor to petition the defendant for his terminal benefits and that, his solicitor wrote two letters of demand that, were acknowledged vide Exhibit C3, while the defendant replied vide Exhibit C4, by which the defendant repudiated his right to terminal benefits till date, and hence, the pre-action notice [Exhibit C5] and this action. He averred that the legal cost incurred is N2,550,000 [Two Million, Five Hundred and Fifty Thousand Naira] only and referred to the invoice [Exhibit C6]. He averred that, the acts of the defendant in questions had made him suffer inability to provide for his family, dependents and himself. Thus, ended the AS. I move to the accompanying WA.

Erudite OSITA ENWE franked the claimant’s theory of the case. The erudite counsel formulated similar but less issues than the questions raised for the OS. Being that, questions to answer are integral part of OS, there is no basis to have questions for the OS and another set of issues for the arguments on the same OS. Questions and issues are synonymous. The questions to answer in the OS are the issues and the basis on which arguments are proffered – see Okezie & Ors v. CBN & Ors (2012) LPELR-8023 (CA) 12-14, E-A. I shall therefore ignore the new issues formulated for arguments and take the WA on the basis of the original questions.

On the question on the number of years for which the claimant was in the employment of the defendant, the erudite counsel referred to Union Bank v. Ozigi (1994) LEPELR- 3389 on when to employ literal interpretation and referred to the letter of termination [Exhibit C4], which he argued admitted that, the claimant was her employee. The erudite counsel submitted that, the defendant assumed responsibility for his employment when she acquired Oceanic Bank in 2016 and signed off on this.

The erudite counsel thereafter went to the question of exception to Clauses 10.8.2 and 10.8.3 and submitted that, by virtue of Clauses 11.2.2 and 11.2.4(b) of the Handbook, exception was created. The erudite counsel cited Agbareh & Anor v. Mimra & Ors (2008) LPELR-43211 on the need for holistic construction of instruments; and that, by virtue of this, the defendant letter in Exhibit C4 that attempts to vary this run contra to this rule of interpretation and that, reference to any clause is reference to the whole of the Handbook. The erudite counsel thereafter quoted Clause 11.2.4(b) to show that, he was entitled to prorated gratuity. The erudite counsel argued further that, while Clause 11.2 says Clause 11 is applicable to all staff, Clause 10.8.2 says Clause 10.8 is applicable to only permanent staff, Clauses 10.8.3, which incorporates Clause 10.8.2, shows that, permanent staff are entitled to gratuity at termination, otherwise than for disciplinary measures, once the years of service were continuous for 10 years; and that, by this, the contra proferentem rule is applicable because, this is standard form contract.

The erudite counsel submitted that, in virtue of this, Clause 11.2 that is applicable to all staff, means, Clause 11.2.4(b) nullifies Clauses 10.2 & 10.3 and makes the claimant entitled to prorated gratuity, even without serving for 10 years; and that, reference to “entitlements” in Clause 11.2.4(b) is reference to gratuity or severance package, as contained in Clauses 10.8.2 & 10.8.3; and that, the formula stated in Clause 10.8.3 is applicable. The erudite counsel cited MTN Communications Ltd v. Amadi (2012) LPELR-21276 on exclusion clause and says that, Clause 11.2.4(b) excluded Clause 10.2.3 in respect of the minimum length of service. The erudite counsel cited Agbareh’s case supra on how to discover the intentions of the drafters of instruments. The erudite counsel submitted that, by this virtue, the intendment of Clauses 11.2 & 10.8 is to pay the claimant’s terminal benefits, even without meeting the normal length of service, as ensconced in Clause 10.8. The erudite counsel therefore urged to the Court to so hold.

The erudite counsel thereafter moved to the question of approximation and cited an unreported decision of this Court in Ekeoma Aja v. Fidelity Bank Plc, to the effect that, this Court abolished fragmentation of length of service and salaries in Nigeria. The erudite counsel thereafter urged the Court to apply this authority to approximate his length of service to 8 years because; it accords with reason and equity of protecting the weaker party. The erudite counsel argued that, BASE SALARY means GROSS SALARY and, submitted that, the multiplication of N900,000 for 8 years yields N7,200,000 and urged the Court to so grant same; or in the alternative, if the Court declines the approximation, N6,750,000 for 7 years 6 months actually served; and proceeded to show the calculations.

On the question of entitlement to general and special damages, the erudite counsel cited Oyebanji & Ors v. Shodara (2020) LPELR-50093 and other cases on the meaning of general damages and when it is grantable. The erudite counsel submitted that, arising from these authorities and paragraphs 41 & 42 of the AS, general damages need not be pleaded and proved because, the law presumes them. On the question of special damages, the erudite counsel cited MTN v. Aquaculture Cooperative Farmers Society Ltd (2014) LPELR-24194 and some other cases on the nature of special damages and how they are proved and submitted that, the claimant meets the requirements in paragraph 40 of the AS and Exhibit C6, which showed that, the claimed incurred N2,550,000 legal cost to prosecute this matter. The erudite counsel therefore urged the Court to grant it.

Being the last part of the WA, the erudite counsel did a summary of the WA and ended up, by asking the Court to grant all the reliefs claimed. I now move to the defence processes.

 

B: Defence CA and WA

The deponent counter-deposed that, the claimant failed to exhibit his letter of employment to show the terms of his employment and that the Handbook is not a contract of employment. He also counter-deposed that, the claimant did not exhibit his bank statements and the Handbook as claimed in the AS served on the defendant and that; payslip is not the same as bank statement. The deponent counter-deposed that, the April 2016 Handbook averred did not exit; and that; the 2016 Handbook of the defendant was actually introduced in December 2016 [Exhibit A], after the termination of the claimant’s appointment and that, the claimant’s appointment was not subject to it. The deponent also counter-deposed that, the claimant did not exhibit the reply letters and e-mails from the defendant he claimed to have exhibited; and that, in any case, the gratuity scheme has been phased out and, the defendant now runs a pension scheme in accordance with law, whereas, under the erstwhile scheme, 10 years continuous service was mandatory.

The defendant counter-deposed that, the Handbook applies to only the staff of the defendant with letter of employment and that, as the claimant was not qualified for gratuity, as at the time he was laid off, he was not paid gratuity, but the terminal benefits he was entitled to. The defendant ended by counter-deposing that, the suit be dismissed. I move to the WA accompanying the CA.

Erudite MIEBI JOAN ENDELEY MICAH franked the defendant’s theory of the case. The erudite counsel argued preliminarily that, the claimant and the defendant are bound by the questions raised for the OS and, not any subsequent issues formulated, but interestingly summersaulted to say, he adopted the five issues he had earlier rejected. The erudite counsel argued that, a preliminary issue is: whether the December 2016 Handbook is applicable to the claimant. Erudite counsel argued that, the claimant in his employment was terminated with effect from 01/06/2016 by a letter dated 31/05/2016. The erudite counsel argued that, the claimant did not furnish the Court with his employment letter for the Court to see his terms of employment and did not furnish the alleged April 2016 Handbook relied on too, whereas, the defence tendered the December 2016 Handbook as the only Handbook she introduced in 2016; and submitted that, since the December 2016 Handbook is the only one before the Court, the Court must hold that, it is the one erroneously referred to as April 2016 Handbook. The erudite counsel submitted that, in any case, the Court couldn’t construe the Handbook that was not before it.

The erudite counsel argued that, from the foregoing, arises the question: whether the December 2016 Handbook was applicable to the claimant? The erudite counsel submitted that, by virtue of the heading “Effective Date” at page 6 of the December 2016 Handbook, it took effect immediately and therefore, not applicable to the claimant because, it had no retrospective effects. The erudite counsel submitted that, as a result, the claimant has no case and cited U.A.C Ltd v. Macfoy (1961) 3 ALL E.R. 1169, to the effect that, you cannot put something on nothing and expect it to stand. The erudite counsel therefore urged the Court to dismiss the case.

Thereafter, the erudite counsel argued that, in reply to the argument that, the claimant was in the defendant’s employment for 7 years 6 months by saying that, her letter dated 29/06/2021 was a reply to the letter of demand for gratuity by the claimant that, he did not work for 10 years and so, not entitled to gratuity. The erudite counsel cited Capital Hotels Plc & Ors v. Abdullahi (2020) LPELR-52315 (CA), to the effect that, a court could not read into a document what is extraneous to it; and that, as such, it could not be inferred from the said letter that, it talked about the claimant’s length of service other than that, the length of service was less than 10 years; and that, to hold otherwise, would be perverse. The erudite counsel cited Esoho v. asuquo (2007) ALL FWLR (Pt. 359) 1355 at 1378, E-G.

On the basis of the above, the erudite counsel submitted that, the letter did not qualify as admission, as it did not acknowledge the claimant’s length of service. The erudite counsel submitted that, since there is no admission, the declaration of length of service could not be granted and cited Anyaru v. Mandilas Ltd (2007) 4 SCNJ 288 and others. The erudite counsel submitted that, even if the defendant made admission, the Court could not make a declaration on it, but only on the evidence adduced by the claimant, which could only be discharged by tendering the letters of employment and termination. The erudite counsel cited Jowan & Ors v. Delta Steel Company Ltd (2010) LPELR-4377 (CA) to the effect that, a court of law construes only documents that incorporates the terms and conditions of employment in employment disputes and no other. The erudite counsel also cited Ikenta Best (Nig) Ltd v. AG Rivers State (2008) LPELR-1476 (SC) to the effect that, it would amount to speculation to decide on the claimant’s length of service in the absence his appointment and termination letters; and that, since the Court could not speculate, it must resolve the issue against the claimant. The erudite counsel thereafter moved to the issue of exceptions to 10 years continuous service for entitlement to gratuity, the erudite claimant’s counsel submitted, was created in the April 2016 Handbook.

The erudite counsel submitted that, because, it was based on falsehood, it must fail because, there was no April 2016 Handbook but December 2016 Handbook, which came into existence after the claimant had left. The erudite counsel quoted Clause 11.2.4(b) and submitted that, even for the sake of argument, were the April 2016 Handbook to apply, it does not create any exceptions, as alleged because; Clause 11.2.4(b) did not create any exception to Clause 10.8.3. The erudite counsel submitted further that, it was wrong for the claimant’s counsel to have deleted the phrase “if any” from the provisions of Clause 11.2.4(b) and replaced it with “under the gratuity scheme or separation scheme in place” in paragraph 3.10 at page 25 of the claimant’s WA, and that, as Clause 11.2.4 did not mention gratuity scheme, this could not be read into it and backed it up with Agbareh v. Mimra [supra]. The erudite counsel submitted on the issue of the Handbook being a standard form contract that, it is not a contract on itself, but only in conjunction with the appointment letter and cited Baba v. Nigerian Civil Aviation Training Centre (1986) LPELR-21095 (CA) on the distinction between handbook and letter of appointment.

The erudite counsel argued that, the claimant’s erudite counsel was not faithful to his assertion that, a document enjoins holistic construction, when he argued that, Clause 11.2.4(b) refers to gratuity scheme or severance scheme, whereas, those are not the only entitlements listed in Clause 10 titled “Compensation” and that, even then, there was actually no mention of severance scheme in the list. The erudite counsel submitted that, reference to entitlements in Clause 11.2.4(b) is reference to all the items listed in Clause 10 and that; the phrase “if any” signifies that, the employee may not be qualified for any entitlement if he did not meet the criteria set in the Handbook. The erudite counsel submitted that, to buy into the erudite claimant’s counsel’s argument, would produce absurdity, apart from amounting re-writing of the contract.

The erudite counsel thereafter moved to the question of approximation of 7 years 6 months to 8 years and the consequential entitlement to N7,200,000 or, alternatively N6,750,000, if approximation is not granted. The erudite counsel argued that, the issue of approximation could only come after the Court had determined that, the claimant actually served for 7 years 6 months and that, since the appointment letter is not tendered, it is impossible to determine this hence, the question of approximation is dead. The erudite counsel submitted in the alternative that, the Court could not approximate since, it was not its role to re-write the contract for the parties and, submitted that, Ekeoma Aja v. Fidelity Bank Plc cited by the erudite claimant’s counsel was anomalous and contrary to the law and that, that is the reason why, it did not have the endorsement of the Court of Appeal.

The erudite counsel argued further that because, it is a decision of a brother judge in the same Court, it is not binding on this presiding me, more particularly so, that, it conflicts with appellate courts’ decisions on the issue. On this basis, the erudite counsel urged the Court to disregard the authority and hold that, the Court cannot rewrite contract for the parties; more particularly so, that, the claimant has not proved entitlement to gratuity, which is not only dependent on length of employment, but on performance and whether the employment was permanent or seasonal, all which the claimant failed to prove. The erudite counsel argued that, his submission is strengthened in the absence of evidence on the claimant’s salary, as the claimant failed to exhibit his Statement of Account, which he deposed to, though not the proper proof, which is the payslip, which the claimant also failed to produce. The erudite counsel urged the Court to come to the conclusion that, the claimant failed to prove his length of service and that, since he admitted it was less than 10 years; he was not in any case, entitled to gratuity.

On the questions of general and special damages, the erudite counsel submitted that, general and special damages are not awarded in cases of breach of contracts of employment and cited Wilbros Nig. Ltd & Anor v. Macaulay (2009) LPELR-8507 (CA) and UBN v. Toyinbo (2008) LPELR-5056 (CA); and as such, there was no legal basis for these reliefs. The erudite counsel went on to cite Gonzee (Nig) Ltd v. NERDC (2005) 13 NWLR (Pt. 943) 634 at 649H, on how to plead and prove special damages and submitted that, the claimant did not satisfy these requirements with regard to the special damages claimed. The erudite counsel submitted that, the legal fee cited as special damages did not arise from the claimant’s employment and that; the exercise of the right of access to court could not be construed as special damages. The erudite counsel submitted further that, there was even no proof that, the sum being claimed as legal fee was actually paid to the lawyer; and that, the claimant could not claim cash payment because, the amount involved is above the legal ceiling of sums that could be paid in cash. The erudite counsel argued that, even the invoice in issue was not exhibited in the AS and concluded that, the claim for special damages has neither been specifically pleaded nor proved.

The erudite counsel conceded that, award of general damages is at the discretion of the Court but must not be awarded arbitrarily and, must be based on the evidence before the Court and cited Abiara v. Regd. Trustees, MC of Nig. (2007) ALL FWLR (Pt. 391) 1664 at 1679 and that, no such materials have been placed before this Court, for it to exercise its discretion to grant general damages in the instant case. The erudite counsel thereafter urged the Court to dismiss the claims for both general and special damages. And ended the WA by urging the Court to dismiss the suit in its entirety.

I ought to move to the FABA filed by the claimant, but will not, for reasons deferred to my decision. Thus, the summary of the processes from both sides end at this juncture. I move to my decision. My decision shall be divided into two parts. Part A shall look into the question of the FABA filed after the case had been heard and adjourned for judgment, while Part B shall examine the question on the merits of the case. There I go.

 

COURT’S DECISION AND THE RATIONES DECIDENDI

Part A: Preliminary Question

The question here is: what is the effect of the FABA filed after the case had been heard and reserved for judgment? The OS was heard on 10th May 2022 and adjourned to 22nd June 2022 for judgment. It was heard in the absence of both the claimant and his erudite counsel. The history predating the hearing of the substantive suit is as follows. The matter first came up before this Court 9th February 2022. The claimant was absent but represented by counsel, while the defendant was absent but represented by counsel too. It was adjourned, along with the two other sister cases, that is: NICN/EN/26/2021 – Anene Leonard Onyishi v. Ecobank Nigeria Plc and NICN/EN/27/2021 – Adukwu Ifeyinwa v. Ecobank Nigeria Plc – to 09/03/2022 for hearing. It came up the 9th March 2022 as adjourned. Parties were equally absent. On this date, OSITA ENWE represented the claimant, while J.N. ELUKE represented the defendant.

Erudite OSITA ENWE, of counsel to the claimant, informed the Court thus: “Regrettably, the business is hearing but we seek for a date. The processes served on us were lost and we have not been able to respond to the CA.

We should be able to file within a week from now.”

 

The erudite defence counsel answered thus: “I am not opposed but subject to the fact that they file their processes as promised.” Thereafter, the Court held: “Case adjourned on the agreement of counsel to both sides to May 10, 2022 for definite hearing of the substantive suit. This order applies to the two other sister cases.”

The above were the proceedings of the penultimate date. The three sister cases involved the same defendant and the same counsel on both sides. On 10th May 2022, the matter came up as adjourned. The parties were absent too, but only the erudite defence counsel J.N. ELUKE was in Court, while the claimant’s erudite counsel was absent, like his client. Seeing this, the erudite defence counsel urged the Court to strike out the suit for want of diligent prosecution. On inquiry, if there was any letter or message from the erudite claimant’s counsel to the Court, Mr. Anthony Ugwu, the Court’s clerk, responded that, the erudite claimant’s counsel called him in the morning of 10th May 2022 to ask, if there was a counsel representing him in Court and, he told him, there was none and that, the erudite claimant’s counsel responded that, he would call the person to come but later called him back that, the person’s line was not connecting.

To this, erudite defence counsel replied that, that was their style and that, on the last date, they said they misplaced the process served on them and, up till the 10th May 2022, they had not filed anything, despite their promise the last time that, they would file and serve before 10th May 2022. The erudite defence counsel went further by, saying, calling the Registrar this morning was an affront to the Court and that, they were in Court for serious business and that, their attitude showed, they were not diligent. The Court, relying on Order 45, Rule 7 of the NICN Rules, instead of striking out the suit, as urged by the erudite defence counsel, allowed it to be heard, as adjourned and deemed adopted, the claimant’s WA in support of the OS, since it was not compulsory that, the claimant file any further process. And even if it was compulsory, the claimant and erudite counsel had abused the privilege given them to do so – Darma v. Eco Bank Nigeria Limited (2017) LPELR-41663 (SC) 25-27, E-F. The claimant had ample opportunity of being heard and to file the necessary process and abused it.

One, it would be observed that, even on the very penultimate date, the erudite claimant’s counsel neither offered the circumstances in which the alleged processes got lost, nor the exact date they got lost, for the Court to see the proximity to the hearing of the 9th March 2022 and, the expanse of time available or otherwise to get copies or the CTC from the Court. And there is no evidence now that, the erudite counsel ever got copies or the CTC from the Court. It means, counsel was simply economical with the truth in getting the adjournment. Meanwhile, the Court indulged erudite claimant’s counsel and granted the adjournment. It is on record, as narrated above that, the claimant’s erudite counsel personally agreed to the 10th May 2022 for definite hearing of the substantive suit and promised that, he would file his reply processes on time before the date. It is also on record that, the erudite defence counsel said it clearly that, he was conceding to the adjournment on the condition that, the erudite claimant’s counsel filed his processes, as promised. The erudite claimant’s counsel did not do so and did not offer any reason why he and his client were not in Court on 10th May 2022, fixed for the definite hearing of the substantive matter and did not offer any reason for his failure to file the requisite processes for which he got the adjournment the penultimate date.

The most important thing that showed the bad faith of the erudite claimant’s counsel is, the absence of any explanation as to why he did not file the processes for which he took adjournment the penultimate date. This plainly shows that, placing a call to the Court’s clerk and, the rigmarole that, someone was supposed to represent him in Court and that, he was unsuccessful in connecting the person on phone, was a ruse; as the explanations neither addressed the reason why he did not file the process he promised to file nor addressed the reason why he and his client were not in Court for a case that was supposed to be heard on the previous date and, was graciously adjourned for definite hearing at their instance.

And to make matters worse, his client [the claimant] was not in Court the fateful day and has never been in Court since the commencement of this case! While it may not be the law that, a party appears in court personally, especially in cases tried on affidavits, however, the party, who leaves his case entirely to the trust of his counsel, takes the outcome and cannot complain of any adverse effects of the conduct of the case by his counsel or tardiness of the counsel. It is not in all cases that the mistake of counsel would not be visited on the party. There are exceptions to this rule, especially where the party is complicit in the mistake or the mistake relates to strategy of prosecuting the case or non-diligence and ineptitude in the prosecution of the case – see NNPC v. Samfadek & Sons Limited (2018) LPELR-44980 (SC) 5-8, C-E; 11-13, D-A; 14-16, D-A. The claimant in the instant case had never been in Court for once and did not appear to be bothered about being briefed on the progress of his case; otherwise, he would have known that, his lawyer was not diligent. Hence, both lawyer and client were complicit in the turn of events and must equally take the consequence.

It is also necessary, in this circumstance, to mention that, the FABA [see p. 312-564 of the Process File] filed after the matter was heard and reserved for judgment without leave of the Court was an abuse of the Court’s process - NNPC v. Samfadek & Sons Limited [supra] p. 13, para. A, where the Supreme Court held that, the rule that, the mistake of counsel would not be punished on the litigant is not applicable when issue of abuse of court’s process is involved. I must say in support of the Supreme Court’s decision therein that, the position was well taken and very sound because, the party visited with the adverse consequences in such a situation is not without remedy. Such party has a remedy in bringing an action against his counsel for gross professional ineptitude or negligence, if he believes he is not complicit and that, it is gross professional ineptitude or negligence on the part of the erudite counsel – see Chidoka & Anor v. First City Finance Company Limited (2012) LPELR-9343 (SC) 16, C-E, where the Supreme Court stated the law:

“A counsel is a master of the case he conducts… However, where a counsel negligently conducts his client’s case, he is liable to be sued for professional negligence…”

 

See also Shettima & Ors v. Shettima (2016) LPELR-40177 (CA) 32-33, B-C to the same effect. Hence, in appropriate cases, courts ought to and, must visit the ineptitude and negligence of counsel on the litigants, especially in cases of abuse of the court’s processes, instead of allowing their processes to be abused or the majesty of the courts to be trivialized. To allow such would boomerang on the society with its counterproductive effects on the administration of justice at the long run, while wielding the big stick in appropriate cases, has the salutary effects of sending clear message to tardy counsel to be more alive to their professional responsibilities to the courts, first and foremost and, to their client-parties.

This brings benefits to the administration of justice for the stakeholders and the society as a whole, in ensuring speedy dispensation of justice and respect for the courts, and even for the Bar, to be seen as a very serious and diligent profession. Quick and efficient dispensations of justice are more particularly relevant to labour courts, which are economic courts, and for that reason, pride quick and efficient justice delivery over undue delay – see unreported decision of this Court in Suit No. NICN/EN/18/2017 – Igboeli v. Federal College of Education, Eha-Amufu & Anor [delivered March 31, 2022], on the need for quick dispensation of justice in the NICN.  

Now: what is even the law on filing of affidavits after matters tried on affidavits have been heard and reserved for judgments? This poser is answered in two cases: the first of which I will quote from is: Oladeji v. IGP & Anor (2018) LPELR-45141 (CA) 27-31, A:

“Issues 1 and 2 relates [sic] to complain on appellant’s further and further affidavit to which the Trial Court declined to consider in its judgment. I agree with the submission of the Learned Counsel to the Appellant that Order II Rule 7 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 empowers the Applicant to file a written address on points of law and may be accompanied by an affidavit within five days after service of the Respondents’ written address, it is clear from the record of appeal…that the Appellant filed a further and further affidavit, Exhibits and a written address dated 23rd September, 2013 but filed on 24th September, 2013 and it was on the same day the application was heard before the Trial Court… The Trial Court observed that ‘after all written addresses have been filed and adopted, the Learned Counsel to the Applicant again filed a further and further affidavit with exhibits and written address…’ It is obvious that the appellant’s further and further affidavit was filed after the hearing of his application as contended by the Respondents, it is also on record that the matter came up for hearing when the Respondents were neither in Court nor represented by a Counsel, the Appellant moved the Trial Court to proceed with the hearing… I wish at this point to stress clearly the principle that where hearing of a case was concluded and adjourned for judgment, parties are precluded from reopening the matter except with the leave of Court and notice must be given to the other party or parties to the case, this is founded on the principle of fair hearing. In the instant case the Appellant’s counsel filed his further and further affidavit after he closed his case and was adjourned for judgment…The Trial Court, therefore, rightly refused to act on the process titled further and further affidavit of the Appellant as same was not among the processes adopted at the hearing. The Appellant could have sought for an adjournment to enable him file and serve all the parties before proceeding to move the Trial Court to hear the matter. The Appellant intended the consequences of his act and therefore the Trial Court rightly refused to act on the further and further affidavit filed by the Appellant. On the invitation of this Court by the Appellant to evaluate his further and further affidavit, it is clear from the record that the process was filed after hearing and adoption of his written address but before judgment…Therefore the further and further affidavit of the appellant having been filed after adoption of his processes without order of Court and failure to serve the process on the Respondents was fatal to his case, the trial Court rightly refused to consider the process in its judgment.” [Emphasis mine]

 

The second case is: Iwuagwu v. Okoroafor (2012) LPELR-20829 (CA) 24, E. The Court of Appeal stated the pertinent law thus:

“The general rule as enshrined in the cases cited by the Applicant is therefore that, after argument had commenced on a motion or matter determined on affidavit evidence, a party is not permitted, except with the leave of Court, to file any affidavit.”

 

That is the position of law as ensconced in the two cases cited above and they are the authorities for my decision in the instant case. In addition, the above decisions are in consonance with Order 3, Rule 22(2) of the NICN Rules, which says: “An originating process shall not be altered after it is sealed except upon application to the Court.” In the first of the two cases, it is observed that, the further affidavit in issue was filed the very day the matter was heard and adjourned for judgment but after it had been so adjourned. Yet the Court of Appeal held, it was rightly ignored in the trial court’s judgment. The instant FABA was filed 21 days after adjournment for judgment. And more particularly so is the additional reason that, the erudite counsel in the instant case, had actually gotten adjournment to file this same process, which he did not file within the one week he personally nominated and, within 61 days before the case was heard and adjourned for judgment, when it was now filed 21 days thereafter! It made the circumstances of this case totally beyond condonation.

There is no doubt that, the case was heard on 10th May 2022 and thereafter, reserved for judgement on 22nd June 2022. The FABA in issue was filed 31st May 2022: 21 whopping days after the case was heard and adjourned for judgment and till the very moment of this judgment! This is very clear evidence of non-diligence on the part of the claimant and his counsel. And to make matters worse, there are no applications for: adjournment, extension of time, and leave to file same this very day! The FABA was just dumped on the Court, even if it was served on the other side – see p. 566 [the very last page] of the Process File – which says, it was served on the defendant’s counsel 1/6/22. No wonder that, the defence counsel just ignored it.

This is a clear abuse of the Court’s process and disrespect to the Court, which had adjourned the case for definite hearing on the application of the very same erudite claimant’s counsel to file his reply before the 10th May 2022, which he did not file and now disrespectfully filed 21 days after the time given him by the Court and, after the case was heard and reserved for judgment, without applications for extension of time and leave to file same, filed along with the dumped FABA! In view of the above, I decline to take cognisance of the FABA and hereby dismiss it, for being abuse of the process of this Court – see Ojo & Ors v. Olawore & Ors (2008) LPELR-2379 (SC) 30, C-E. I now move to the substantive suit on the merits.

 

Part B: Merits of the Substantive Suit

In deciding this aspect of the case, the primary question to be answered before proceeding to the real questions formulated for the OS is: is the necessary evidence before the Court to grant the reliefs sought? This suggests that, a claimant might frame good questions to be addressed in OS, yet, not be entitled to the reliefs, by the simple reason of lack of evidence to support the reliefs. In OS, the law is that, except the questions to be construed relate to purely statutes, the claimant must exhibit the instruments to be construed along with the OS – Asor v. INEC & Ors (2013) LPELR-20695 (CA) 54-56, A-F and Order 3, Rule 17(1)(b) of the NICN Rules 2017. This case asked essentially for declaratory reliefs and special damages. And the special damages and, even the general damages, are contingent on the declarations sought. So, the first thing to find out is: if the claimant has the requisite evidence in proof of the declarations and special damages sought. Once it is found that, there is lack of cogent and compelling evidence in proof thereof, the claimant fails. It is as simple as that. This is because, a claimant wins in a declaratory action based on the strength of his case and, not on the weakness of the defence. The erudite defence counsel argued in the above line and submitted that, there was lack of evidence to ground the case, urging the Court, for this reason, to dismiss the case.

Hence, my first duty in deciding the merits of the case is to, first and foremost, determine if the claimant herein adduced the requisite evidence in proof of his case. I make brisk to state that, I have searched through the lawful processes in the entire file and could not find that, the claimant exhibited his: 1: Letter of Appointment; 2: Termination Letter; 3: the Handbook; 4: the invoice of the legal fees allegedly paid; 5: Evidence of Payment of the Legal Fees; and 6: Evidence of His Terminal Salary. And these are the essential documents needed for the resolution of the questions raised in the OS. In fact, the claimant and his erudite counsel directly framed the Termination Letter and the Handbook into the questions for construction; and yet, failed to exhibit them! The more worrisome aspect of this is that, the claimant stated in the AS that, he exhibited these documents and, his erudite counsel acquiesced in this, whereas, none was exhibited with the original OS in the Court’s file and the one served on the defendant – see p. 1-48 of the Process File. The only documents exhibited were four documents, all being demand letters from the claimant’s solicitor – see p. 18-26 of the Process File. And these documents exhibited are useless in assisting in granting the reliefs claimed.

The bottom-line is that, the necessary documents were not exhibited. It means, the very vital pieces of evidence were lacking in the case and that, the claimant did not prove his case. How does the claimant wish to induce belief in the absence of these vital pieces of evidence necessary to prove his case! The case fails simply for failure to tender vital documents that could prove the assertions made – see Okomu Oil Palm Company Limited v. Iserhienhien (2001) LPELR-2471 (SC) 8-9, E-C; Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) 15-16, C-C and Aji v. Chad Basin Development Authority & Anor (2015) LPELR-24562 (SC) 17-18, E-A. I so find and hold.

Courts of law, being strangers to the disputes between the parties, only come to know about the disputes through the evidence presented by the parties and whom to give victory. Where a party fails to present evidence of the requisite quantity and quality, his case falls flat, more particularly so, in a matter seeking declaratory reliefs and special damages – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B; Chukwuma v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B; and SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A. It is clear that, this suit offends all the preconditions for the grant of declaratory reliefs.

It also offends the mandatory requirements for actions commenced via OS in NICN – see Order 3, Rule 17(1)(b) of the NICN Rules, which prescribed that, vital documents to be construed must be exhibited for the OS to be competent, except if they are statutes, which is not the case herein. The OS was grossly incompetent beyond rectification as filed. When you don’t accompany an OS with the relevant documents to be construed, unless they be statutes, the OS is totally incompetent: there is basically no OS; and, such defect is not something to be rectified by filing additional affidavit, but by refilling anew because, both the AS and the WA have to be altered to accommodate the new documents, which ought to have originally been the basis of their existences. And yet, the erudite claimant’s counsel did not withdraw the OS for refilling when the erudite opposing counsel, unwittingly and directly raised the issue of non-exhibition of the vital documents!  I used the word “unwittingly” advisedly to draw attention to the counterproductiveness in that type of defence strategy, which could only assist the claimant’s counsel to wriggle out of his gross demonstration of ineptitude.

And yet, with this clear warning from the opposing side, the erudite claimant’s counsel still refused to do the needful before the date jointly agreed for definite hearing. In a situation like this, the Court is home and dry to conclude that, it was a litigation strategy for which the claimant and his erudite counsel must swim to victory or drown. Thus, there is no iota of evidence placed before this Court to grant the declarations and special damages sought. Declaratory reliefs, and nay, all other reliefs, are only granted on the strength of the claimant’s case and not on the weakness of the defence – see Okafor & Anor v. Ejiogu (2011) LPELR-3923 (CA) 43, B and  COP Taraba State & Anor v. Dabo & Ors (2019) LPELR-47215 (CA) 21, B-D.

It should also be noted that, the consequential reliefs sought in this case are special damages, which must be particularised and, proved to the hilt. The claimant also failed in his responsibilities in this regard. With the absence of relevant documents to determine the exact terminal salary of the claimant, it is impossible to start an inquiry into his terminal benefits, which are contingent on the terminal salary. It is also impossible to inquire into the special damages of N2,550,000 claimed in the absence of evidence to support its payment. The Court of Appeal has succinctly stressed the need to sufficiently particularise and prove special damages – see Adama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C; and especially Union Bank PLC v. Onuorah & Ors (2007) LPELR-11845 (CA) 15-16, B. Likewise, it is impossible to grant any declaration in OS when the primary documents to construe are not before the Court.  

It is thus clear that, the case cannot succeed in all circumstances, even if the defendants had not filed any response, as the claimant simply failed to prove his case. The Court too would not be able to grant the general damages, which is contingent on the declarations sought. Having reached this conclusion, it is unnecessary for me to proceed further in this case before dismissing it. The case must grind to its end.

 

CONCLUSION

Having found that, the case lacks the requisite evidence; the logical thing is to have it dismissed, for lacking merit. This suit is accordingly dismissed for lacking the requisite evidence and merits. I award no cost.

Judgment is entered accordingly today Friday the 15th day of July 2022, under the hand of the presiding judge.

 

…………………………………..

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA