IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: WEDNESDAY 1^ST JULY, 2026

SUIT NO: NICN/KD/26/2024

BETWEEN:

STERLING BIOPHARMA LIMITED…………………………...CLAIMANT

 

AND

1. RICHARD OGALA
2. DR JOSEPH ONU                                                                         
3. UDOKA ESONANJO………………………………………. DEFENDANTS

 

 

REPRESENTATION

12. I. Otaha Esq holding the brief of Adepeju A. Adeniran Esq for the Claimant
13. P. Andezai Esq for the Defendants

JUDGMENT

INTRODUCTION 

The Claimant commenced this suit by the Complaint filed on the 11^th of June 2024 under Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules whereat the Claimant claims against the Defendants the following reliefs: 

 

 

 

The Claimant predicated his claims on the Statement of Fact and Witness Statement on Oath filed on the 11^th of June 2024. The Defendants based their defence on the Joint Statement of Defence and the Witnesses’ Statement on Oath filed on the 15^th of July 2024, wherein the Defendants counterclaim and seek the following reliefs as follows:

 

 

 

 

 

1. Accumulated Salaries unpaid for 4 months                                 N432,000
2. 13 months salaries unpaid 4 years                                                N278,000
3. Leave grant 2023                                                                              N75,0000
4. Refund flouting cost/vehicle maintenance                                  N1,840,000
5. Accident, operation and cost of treatment                                  N1,490,000

TOTAL N4,115,000

 

 

 

At the plenary hearing on the 23^rd of June 2025, the Claimant called his first witness. Hussain Adebayo Abolore, who testified for the Claimant hereinafter referred to as CW1, who identified his Depositions on Oath filed on the 11^th of June 2024, and adopted the same as his evidence in support of the Claimant. CW1 thereafter tendered the following documents and marked as follows:

1. Letter of employment dated the 11^th of May 2026; admitted and marked Exhibit CW001.
2. Deed of guarantors and verification of staff guarantors (Dr. Joseph A. Onu); admitted and marked Exhibit CW002.
3. Deed of guarantors and verification of staff guarantors (Mrs. Udoka Esoabjor); admitted and marked Exhibit CW003.
4. Proof of Ownership Certificate; admitted and marked Exhibit CW004.
5. Letter dated 26^th of March 2024 from the Claimant and addressed to Defendants; admitted and marked Exhibit CW005.
6. Resignation Schedule; admitted and marked Exhibit CW006.
7. Final demand and pre-action notice dated 22^nd of January 2022; admitted and marked Exhibit CW007.
8. Solicitors letter dated 7^th of March 2024 from K. P. Andezai; admitted and marked Exhibit CW008.

On the 30^th of October 2025, the Defendants called their witness. The 1^st Defendant, hereinafter referred to as DW1, testified for the Defendants. DW1 identified his Statement on Oath filed on the 15^th of July 2024 and adopted the same as their evidence in support of the defence of the Defendants. DW1 thereafter tendered the following documents as follows: 

1. Copy of Medgroup Employee Handbook; admitted and marked Exhibit DW001.
2. Official car policy dated the 19^th of March 2021; admitted and marked Exhibit DW002.
3. Letter of employment dated the 11^th of March 2017; admitted and marked Exhibit DW003.
4. Letter of termination of employment dated the 12^th of January 2024; admitted and marked Exhibit DW004.
5. Doctor report and receipt paid for operation and purchase of drugs; admitted and marked Exhibit DW005.
6. Letter written by the 1^st Defendant to the Claimant dated the 21^st of November 2023; admitted and marked Exhibit DW006.
7. Solicitors’ letters from Kurtusi Andezai & Co; admitted and marked Exhibit DW007.
8. Solicitors letter from the 1^st Defendant’s solicitors to the M. D. of the Claimant dated 29^th of June 2024; admitted and marked Exhibit DW008.
9. Receipt of repairs of the Claimant’s vehicle with the 1^st Defendant; admitted and marked Exhibit DW009A and B.
10. Sales invoices 25/05/2023 and with a letter dated the 14^th of November 2023; admitted and marked Exhibit DW010A and DW010B.

After the close of the hearing of the suit, on the 15^th of April 2026, the matter came up for the adoption of the Final Written Addresses filed by Counsel. Learned Counsel for the Defendants, K. P. Andezai, Esq, identified and adopted his Final Written address filed on the 11^th of November 2025 and urged this Court to dismiss this suit and grant counterclaim reliefs.

Counsel for the Claimant, I. W. Zom, Esq, identified and adopted his Final Written Address filed on the 22^nd of February 2026 as his legal submission in aid of the case of the Claimant while urging this Court to grant the claim of the Claimant and dismiss the counterclaim.

CASE OF THE CLAIMANT

The facts of the case of the Claimant are that the 1^st Defendant was employed by the Claimant as a Medical Sales rep in May 2017. The Claimant, pursuant to the offer of Employment with the 1^st Defendant, required the following services from the 1^st Defendant; promoting marketing and selling of Various Products of the Company, carrying out other activities to bring about Sales of the company's product, keeping records of sales and collections and reporting on weekly and monthly basis to the manager, sales/marketing, to ensure the delivery of monthly and annual budgets as assigned by the management, and to carry out every other instruction as directed by the management.

The 1^st Defendant was also given a Vehicle Pontiac Viber with Registration Number TYW 374 AA to aid in the carrying out of his duties. The 1^st Defendant at all material times carried out duties as a Sales representative for the Company within Kaduna and any other place he was assigned responsibilities with the sister companies of the Claimant as contained in his Letter of Employment. Sometime in October 2023, it was discovered that the 1^st Defendant received products but did not deliver them to customers and neither did he make returns to the Claimant. The total outstanding of the 1^st Defendant to the Claimant was discovered to be N4, 968,918 (Four Million Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Eighteen Naira).

Thereafter, the Claimant directed other sister companies to stop releasing stock to the 1^st Defendant while the issue was being investigated. Consequent upon the findings of the unaccounted stock, the salary of the 1^st Defendant was suspended so as to recover part of the amount of the unaccounted stock which the 1^st Defendant took. The Claimant, in addition to withholding the 1^st Defendant's salary, also received some payments from the 1^st Defendant as part of the settlement of the outstanding. Out of a debt of N4,968,918 (Four Million Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Eighteen Naira), the 1^st Defendant was only able to reduce his indebtedness to N3,022,333.32 (Three Million, Twenty-Two Thousand, Three Hundred and Thirty-Three Naira, Thirty-Two kobo). 

As at January 2024 the outstanding indebtedness including unpaid car policy payments was N3,092,381.54 (Three Million, Ninety-Two Thousand, Three Hundred and Eighty-One Naira, Fifty-Four Kobo). After several demands from the 1^st Defendant, the Claimant engaged the services of Fuerza Consulting Limited to recover the debt. The Company wrote a letter dated 22^nd day of January 2024. 

The 1^st Defendant, through his Lawyer, one K.P Andezai Esq, wrote a letter dated the 7^th of day of March 2024, promising amicable settlement. In response Fuerza Consulting Limited wrote a letter in response and since then, no moves have been made by the 1^st Defendant to pay the debt owed. The Claimant further secured the services of a Legal Counsel to go to court to recover the debt. The Claimants lawyer made efforts to reach out to the 2^nd and 3^rd Defendants with respect to the debt and their responsibility as Guarantor. The 3^rd Defendant in a conversation with the Claimant's lawyer on the 8^th of day of April 2024, stated that she was fully aware of the implication of being a guarantor and promised to speak to the 1^st and 2^nd Defendants in order to seek out ways to amicably resolve issues.

Since the said conversation, no further actions were taken by the Defendants in furtherance of settlement of the indebtedness of the 1^st Defendant or resolving issues. The Claimant was therefore left with no choice but to bring this action before this Honourable Court. The 1^st Defendant acted contrary to the terms of his employment and failed to supply goods to the intended customers, return the goods or remit funds back to the Claimant.   The 1^st Defendant did not make Payment on the car Policy as agreed and having been released from his employment due to his own wrong doing the 1^st Defendant ought to return the vehicle to the Claimant. The 2^nd and 3^rd Defendant are the Guarantors to the 1^st Defendant hence they are equally liable for the indebtedness of the 1st Defendant.

DEFENCE OF THE DEFENDANTS

Responding to the claim of the Claimant, the Defendants in their joint statement of defence stated that the 1^st  Defendant is the former staff of the Claimant while the 2^nd and 3^rd Defendants are not the employees of the Claimant but guarantors of the 1^st Defendant and not necessary parties to this case.

The Claimant issued the vehicle Pontiac vibe with registration No. TYW374 AA to the 1^st Defendant under an official car policy through the Claimant's letter dated the 19^th day of March, 2021 wherein the 1^st Defendant was given the vehicle under the said policy to pay only 40% of its value on a prorate basis for 36 Months. The Claimant had been deducting the 40% value of the vehicle from the 1^st Defendant on monthly basis from the monthly salaries of the 1^st Defendant from the 1^st day of March 2021 to 28^th day of February 2024 making the 36 months stated in the official car policy of the Claimant.

Having paid the complete amount of the 40% value of the vehicle by the 1^st Defendant on monthly basis from the 1^st day of March 2021 to 28^th day of February 2024 making the 36 months stated in the official car policy of the Claimant, the vehicle is no longer that of the Claimant but the 1^st Defendant. There was never a time the 1^st Defendant received the goods/drugs of the Claimant but did not deliver same to the customers of the Claimant and the 1^st Defendant denied that he never diverted the goods/drugs of the Claimant to anyone.

The 1^st Defendant only received goods/drugs from the Claimant valued at about N24, 335, 250 and remitted to the Claimant through its bank the sum of N22,240,630 and there were goods/drugs that had expired were valued N539, 330 because supplied were discovered to have just some few months to expired were supplied by the Claimant which the customers upon discovery rejected and returned same and refused to pay for them.

The 1^st Defendant reported the situation of supplying drugs that will soon expire to the Claimant and the Claimant promised to do something about it and there were some of the customers of the Claimant that after the 1^st Defendant supply drugs to, that usually prefer to made direct payment to the Claimant. Where customers with the direct account of the Claimant that the 1^st Defendant supply drugs that payment directly to the Claimant, the Claimant upon receipt of such payment never call or inform the 1^st Defendant and because their account is not reconcile, the Claimant continue to believe that there is debt. When the 1^st Defendant got information that the Claimant wanted to relieve the 1^st Defendant from his employment as its Medical Sales Representative, the 1^st Defendant engaged his Solicitors to write the Claimant for stock taking and verification of all the transaction of the 1^st Defendant in the course of his employment with the Claimant but such was not done to date.

That there is no outstanding indebtedness between the Claimant and the 1^st Defendant in respect of any amount talk less of the sum of N4, 968, 818 as alleged by the Claimant. It is not true that the 1^st Defendant ever paid any amount as personal indebtedness but as receipt of money from customers being the Medical Sales Representative of the Claimant or make payment from the sum of N4, 968, 918 to reduce same to N3,022,333.32 as alleged by the Claimant against the 1^st Defendant. After every amount collected from customers of the Claimant are received periodically such payment are deposited into the account of the Claimant in the bank unless those customers who prefer to pay directly into the Claimant's account to keep their record which the Claimant refused to reconcile its record with the 1^st Defendant.

When the 1^st Defendant notice that the Claimant withhold his salaries and other entitlements, the 1^st Defendant engaged his Solicitors to write the Claimant in respect of such action without proper investigation into the reason for the dwindling income being generated by the 1^st Defendant. The unilateral stoppage of the salaries and other entitlements of the 1^st Defendant by the Claimant without any cause or investigation as to the reason for the dwindling sales and income is both a violation of the 1^st Defendant's right to fair hearing and the MedGroup Condition of Service which binds the 1^st Defendant and the Claimant.

There was no time that both the 1^st Defendant and the Claimant met and resolved as to the extent of any debt between the parties. Unilaterally stopping the salary and other entitlements of the 1^st Defendant and also arriving at the amount the Claimant felt is the amount the 1^st Defendant is owing without carrying out a stocktaking is a violation of the 1^st Defendant's right to fair hearing.

The MedGroup Condition of Service which the Claimant is a subsidiary of the group that binds the 1^st Defendant and the Claimant provides that the Claimant is duty bound to carry out investigation before the Claimant can arrive at any conclusion in respect its transaction with its employees.

The 1^st Defendant waited for the Claimant to come and carry out a thorough investigation or stock taking for an amicable resolution of the matter but the Claimant went ahead to terminate the 1^st Defendant's employment and issue out a demand notice and called the 2nd & 3rd Defendants when the matter had not been resolved.

The Claimant violated the condition of the employment of the 1^st Defendant to the extent that after the period of the 1^st Defendant's probation was over the Claimant refused to confirm the 1^st Defendant's employment and/or issue him with a letter of confirmation. The right of the 1^st Defendant was violated when the Claimant stopped his salaries and other entitlements without an indictment or investigation which the 1^st Defendant was culpable as doing so unilaterally is a violation of the 1^st Defendant's constitutional rights.

In the course of his employment with the Claimant, the 1^st Defendant felt sick that he was hospitalized and operated upon that he had incurred medical treatment which the Claimant knew about but yet to reimburse the 1^st Defendant up to this moment. In the course of his employment and maintenance of the vehicle with him had make payment from his personal earning to keep the vehicle functional the Claimant knew about but yet to reimburse the 1^st Defendant up to this moment.

The 1^st Defendant is entitled to be paid all his unpaid salaries, leave grant, 13 months salaries both in his probationary stage and after his salaries had been reviewed upon calculated based on the confirmation of his employment.

LEGAL SUBMISSION OF THE CLAIMANT

Counsel for the Claimant nominated six issues for the determination of this suit, to wit:

1. Whether the Claimant proved the 1^st Defendant's indebtedness (and by extension the liability of the 2^nd and 3^rd Defendants as guarantors).
2. Whether the 1^st Defendant proved entitlement to the Pontiac vehicle under the car policy.
3. Whether salary stoppage/deductions violated fair hearing and defeat the Claimant's claim.
4. Whether the Claimant proved its case jointly and severally against the Defendants.
5. Whether the Defendants proved their counterclaim.
6. Whether on the totality of credible evidence, the Claimant is entitled to judgment on its claims.

On issue one, Counsel for the Claimant submitted that in civil matters, the Court decides on the balance of probabilities, by weighing the quality of evidence on both sides. The Supreme Court's classic direction is that the Judge should place each side's evidence on "that imaginary scale" and see which is heavier by probative value. Per Fatayi-Williams, JSC in Mogaji v. Odofin (1978) 4 SC 91.

The Defendants' assertion that no stock-taking occurred and that the 1^st Defendant was denied the chance to defend himself is manifestly untrue and contradicted by the evidence. Exhibit CW05 is the Claimant's representative report arising from an actual verification trip to Kaduna. The report documents the findings of Mr. Nuhu Oviano Salihu, who travelled from Kano to Kaduna on 4^th October 2023 to conduct a physical stock-taking exercise with the 1^st Defendant. The 1^st Defendant's solicitor wrote on 21^st November 2023 and same admitted as Exhibit DW06.

This is a direct admission of the 1^st Defendant's inability to liquidate indebtedness and aligns perfectly with the explanation he gave to the Claimant's representative during the Kaduna stock-taking as recorded in Exhibit CW05. This admission is fatal to the Defendants' case. In cross-examination, the 1^st Defendant admitted that Exhibit CW05 recorded his own explanation-that the Kaduna crisis affected matters-and that he told the representative his predicaments. This evidence stands unimpeached. The Court is urged to accept it as the best contemporaneous account of what was found and what the 1^st Defendant said when confronted. 

The Defendants' own solicitor's letter (Exhibit DW06) admits that business became slow/difficult and that debtors could not liquidate their indebtedness. This is the same explanation the 1^st Defendant gave the Claimant's representative in Exhibit CW05. The Defendants cannot approbate and reprobate, they cannot deny that any investigation occurred while simultaneously relying on the very explanation that only arises because an investigation and stock verification took place. The unimpeached evidence before this court is that a Claimant's representative travelled, physically checked/verified stock exposure and produced a written report listing the outstanding sum. The fact that CW05 does not itemize individual customer names under each product does not destroy its probative value where the core point is stock exposure and failure to account, not a retail debt recovery suit against the customers.

The 1^st Defendant's own explanation of slow business post-COVID and insurgency affecting his coverage area and customers being unable to pay is exactly the same excuse he gave when confronted. That alignment is telling: it confirms the Claimant did confront the problem and the 1^st Defendant responded with excuses, not reconciliation proof. The 1^st Defendant personally supplied the names of the 2^nd and 3^rd Defendants as guarantors, (CW02 & CW03). This very relationship is confirmed in the paragraph three (3) of their Joint Statement of Defence. That arrangement presupposes mutual understanding that, in a stock-trust employment, liability may arise and the employee and his guarantors may be called upon to bear such liability personally.

The Supreme Court expressly states that a guarantor is "brought in by the principal debtor himself," confirming that the 1^st Defendant's act of supplying the names of the 2^nd and 3^rd Defendants is foundational to the guarantee arrangement. They are not strangers, and their liability is co-extensive with his. NDIC v. OKEM ENT. LTD (2004) 10 NWLR (Pt. 880) 107 at 135, Paras C-E, Per: Ogundare, JSC where the Court held that a Guarantor is technically a debtor because where the principal debtor fails to pay his debt, the Guarantor will be called upon to pay the money owed.

Where the facts disclose a breach of contractual duty, the matter remains civil even if the same facts could theoretically support a criminal charge. In Adetoun Oladeji (Nig) Ltd v. Nigeria Breweries Plc (2007) 5 NWLR (Pt. 1027) 415, the Supreme Court held that a claim for money had and received is civil in nature and does not transform into a criminal allegation merely because the word "'absconded" is used. The applicable standard in this civil claim is the balance of probabilities. In A. R. Mogaji &. Ors v. Odofin & Ors (SC.372/1976,28th April 1978), per Fatayi-Williams, JSC, the Court stated that the Judge must put both sides' evidence on an "imaginary scale" and decide which has greater probative value.

On issue two, it was submitted that the Terms of the Car Policy Letter (Exhibit DWO2) by the car policy letter dated 19^th March 2021(tendered by the 1^st Defendant as Exhibit DWO2) provided that the 1^st Defendant was to pay 40% of the vehicle's value on a pro-rata basis over 36 months. Critically, the letter must be read as a whole. It does not provide that ownership automatically vests upon payment of 40%. The vehicle remains the property of the Claimant until formal transfer, which is subject to the 1^st Defendant completing the 36-month period and remaining in employment throughout. 

The 1^st Defendant's employment was terminated on 12^th of January2024 (Exhibit DW04). According to the Claimant's records (Exhibit CW06, the Resignation Schedule), his salary was stopped in October 2023 following the discovery of the stock shortages. The car policy, properly construed, provides that if the employee withdraws from employment or his employment is terminated before the 36-month period expires, he forfeits the benefit of the 40% payment arrangement and must either return the vehicle or pay the remaining 60%. This construction accords with commercial reality. In United Dominions Corporation (Nig.) Ltd v. Ladipo (1971) 1 All NLR 104 at 108, the Supreme Court held that upon termination of a hire-purchase agreement, the hirer's limited interest in the property ceases, and the owner has the immediate right to possession. The Claimant's relief is straightforward: the vehicle was an official vehicle issued in the course of employment and remains the Claimant's property (CW04). The 1^st Defendant's attempt to convert an internal policy into automatic transfer of title is not supported by any clean title transfer document tendered by him.

If the policy truly created a transfer right, the 1^st Defendant must prove the precise terms and compliance conditions entitling him to title especially when the vehicle is pleaded as company property and the Claimant seeks return. This does not exist. The vehicle under the car policy did not complete the term. It must be noted that the salary from which the deductions under the car policy could have been made was stopped in October 2023 during the investigation and in order to recoup part of the sum unaccounted for by the 1^st Defendant.

Even on the 1^st Defendant's own case, the 36-month payment period ran from 1^st of March 2021 to 28^th of February 2024. His employment was terminated in January 2024, and he made no payments after October 2023. He therefore did not complete the required period and is not entitled to claim ownership. In Oluwaseunfunmi Oladoyin v. Mrs. Modupe Ogundimu & Anor (2025) NICN/LA/52/2024 (unreported), the National Industrial Court held that where a car policy requires a fixed period of service before ownership vests, the employee must complete that period to claim entitlement. The 1^st Defendant did not complete the period and cannot benefit from his own breach. This construction accords with common sense and commercial reality. An employee cannot enjoy the benefits of a long-term incentive scheme after his employment has been terminated for cause. In United Dominions Corporation (Nig.) Ltd v. Ladipo (1971) 1 AII NLR 104 at 108, the Supreme Court held that upon termination of a hire-purchase agreement, the hirer's limited interest in the property ceases, and the owner has the immediate right to possession. Applying this principle, the 1^st Defendant's interest in the vehicle (such as it was) ceased upon termination of his employment. The Claimant is entitled to immediate possession.

On issue three, the Claimant's case is not "discipline for crime"; it is a civil claim arising from a commercial-employment relationship: stock entrusted, proceeds expected, stock found outstanding, explanation unsatisfactory, trust broken. Suspension of salary pending investigation is a standard administrative measure to protect the employer's interests while facts are ascertained. The 1^st Defendant was fully engaged during the verification: the Claimant's representative visited, stock was checked, and the 1^st Defendant gave explanations. That is the essence of being heard on the facts.  The 1^st Defendant was heard. The October 2023 visit by Mr. Salihu was an opportunity for him to explain the discrepancies. He gave explanations, which were recorded in Exhibit CW05. The fact that his explanations were not accepted does not mean he was not heard.

The Defendants cannot convert every internal inquiry, reconciliation, or demand for return/accounting into an argument that the Claimant must first prosecute them before seeking recovery. That proposition would defeat commerce and employer remedies. In CBN v. Dinneh (2021) 13 NWLR (Pt. 1798) 91 at 129, Paras G-H, the Supreme Court held that "the standard for determining the observance of fair hearing is not the question whether any injustice has been occasioned, but rather the question whether an opportunity of hearing was afforded. The 1^st Defendant was afforded that opportunity. Furthermore, the Supreme Court has repeatedly held that uncontroverted facts need no further proof. Here, the Defendants' own Exhibit DW06 aligns with Exhibit CW05, and the 1^st Defendant conceded the accuracy of CW05 regarding his explanation. The fair hearing slogan cannot wipe away this evidential reality.

It is standard practice in employment relations for an employer to suspend an employee pending investigation into financial irregularities. This is not a punishment; it is a holding measure to protect the employer's interests while facts are ascertained. The 1^st Defendant's salary was suspended after the discovery of significant unaccounted stock, and part of the debt was recovered through this mechanism. In Recare Limited v. Godswill Nwokolo & Anor (2024) NICN/LA/193/2021 (unreported), the National Industrial Court recognized that employers may take reasonable steps to protect their assets during investigations, including withholding payments where there is a genuine basis for doing so. 

On the counterclaim of the Defendants, Counsel submitted that once the Claimant proves the indebtedness and breach, the counterclaim which is largely collateral cannot stand. The Defendants must still prove their counterclaim strictly, and they have failed to do so. The Defendants produced medical receipts and reports (Exhibits DW05A & B) but adduced no credible evidence that the 1^st Defendant made any formal request to the Claimant for reimbursement; the Claimant accepted liability or was even aware of the expenses; the expense forms part of any contractual entitlement under the employment in a manner connected to this suit's core question (stock indebtedness). These expenses arose from a personal medical condition, not from any work-related injury or activity. They have no connection to this suit and are improperly introduced.

Where a party claims specific monetary sums by way of counterclaim (medical bills, vehicle maintenance, etc.), the law requires specific pleading and strict proof. The settled rule is reproduced: "special damages must be specifically pleaded... and strictly proved." The counterclaim, as presented, fails that standard entirely. The 1^st Defendant's bare assertions, unsupported by contractual provisions or evidence of demand, cannot sustain a claim for special damages. 

Regarding the vehicle Maintenance Claim (N1,840,000): Contractually Barred and Internally Inconsistent. This claim is not only baffling but contractually untenable and factually unsupported. First, the 1^st Defendant's position is internally inconsistent. In his Counterclaim, he asserts ownership of the vehicle and seeks an order compelling the Claimant to transfer title to him. Yet, simultaneously, he claims reimbursement for maintenance costs as if the vehicle still belonged to the Claimant. He cannot approbate and reprobate. Refers to Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 430, where the Supreme Court held that a party cannot blow hot and cold in the same proceedings.

Secondly, the Car Policy Letter (Exhibit DW02) explicitly places the burden of maintenance on the employee. The policy provides that the employee shall be responsible for routine maintenance and repairs. Only in exceptional cases, such as major engine issues, would the cost be shared on a 60:40 basis between the Company and the employee. In United Dominions Corporation (Nig.) Ltd v. Ladipo (supra), the Supreme Court held that a hirer who is not the owner cannot claim expenses incurred on the property against the owner without agreement. Even if the 1^st Defendant were still a hirer (which he is not, his employment having been terminated), he cannot claim reimbursement for expenses he was contractally obliged to bear. 

Third, the 1^st Defendant adduced no evidence that these maintenance costs were authorized by the Claimant or that the Claimant ever agreed to reimburse them. The receipts tendered (Exhibits DW09A &B) prove only that money was spent, not that the Claimant was liable for it. The 1^st Defendant's employment was terminated for cause. He is not entitled to salaries for periods after termination. The suspension of salary during the investigation was lawful and administrative. He did not work during the period his salary was withheld, and he cannot claim payment for work not done.

The claim for leave grant and 13^th month salary is unsubstantiated. He provided no evidence that these were accrued and unpaid. In Recare Limited v. Godswill Nwokolo (Suit No:NICN/LA/193/2021), the Court dismissed similar claims where the employee failed to prove entitlement.

The Claim for Damages for Violation of Rights (N1,000,000.00) is speculative and unproven. The 1st Defendant was heard,his employment was lawfully terminated, and the Claimant acted within its contractual rights. There is no basis for an award of damages. Where the Claimant's claim succeeds on the evidence (as it should), the counterclaim built on the same discredited narrative of "no verification" and "no opportunity" is defeated. Furthermore, Section 167(d) of the Evidence Act, 2011 empowers the Court to presume that evidence which could be produced but is not produced would, if produced, be unfavourable to the person who withholds it.

LEGAL SUBMISSION OF THE DEFENDANTS

Counsel for the Defendants nominated five issues for the determination of this suit, to wit, 

 

 

3. Whether the Claimant can unilaterally stop the salaries of the 1^st Defendant or use the said salaries to repay any alleged indebtedness against the 1^st Defendant without any proof and so doing is not a violation of the 1^st Defendant's right to fair hearing.
4. Whether the Claimant has proved his case against the Defendants jointly and severally to be entitled to Judgment in their favour against the Defendants. 

 

On issue one, Counsel for the Defendant submitted that the Claimant has not established the alleged indebtedness of the 1^st Defendant to the Claimant in the tune of N3,022,333.32 that will warrant the 2^nd and 3^rd Defendants to be liable to pay the Claimant. That Where there is an allegation of crime, fraud, stealing or misconduct against an employee like in the instant case between the Claimant and the 1^st Defendant, the jurisdiction to determine the allegation is vested in the court and not any administrative panel of the Claimant. Cited the case of C. B. N. v. DINNEH (2021) 13 NWLR (Pt. 1798)91@118 Para B-F where the Supreme Court held that where there is an allegation of criminal wrong against a person, the jurisdiction to determine the allegation is vested in the courts and the exercise of such jurisdiction cannot be usurped by any administrative panel.

The Claimant did not report the said allegation to the law enforcement agency or the court against the 1^st Defendant but resorted to carry out the duty of establishing the said allegation administratively that at the end authored Exhibit CW05 tendered before this court. On cross examination of the 1^st Defendant by the Claimant, the 1^st Defendant responded that he did not participate in the deliberation that resulted in Exhibit CWO5 tendered before this court. Relied on the case of Fajemirokun v. C. B. Nig Ltd (2009) ALL FWLR (Pt.487) 1@6 Para G-H where the Court held that it is the duty of citizen of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their civic duty unless it is shown that it was done mala fide.

The Claimant did not file any complaint against the 1^st Defendant on the said allegation of crime and the matter was never reported to the Police or the court and failure to do so, the 1^st Defendant was denied his right of fair hearing on the matter. Relied on the case of C. B. N. v. DINNEH (2021) 13 NWLR (Pt. 1798)91@129 Para G-H where the Supreme Court held that the standard for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing, it is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. The Claimant has not established how the Claimant arrived at the said amount stated above and the yardstick of the Claimant's discovery. Relied on the case of Yusuf v. Adegoke (2007) ALL FWLR (Pt. 385)384 @405 Para C-E where the Supreme Court held that; in civil cases, the burden of proof rests on the part whether Plaintiff or Defendant who asserts the affirmative of the issue called the onus probandi, it rests on the party who would fail if no evidence as the case may be were given on either side.

The Claimant frontloaded a document that had a table of schedule of the alleged indebtedness of the 1^st Defendant in favor of the Claimant and the Claimant did not produce any of those persons or company listed in the schedule to testify in respect of the alleged indebtedness before this court and no document was produced from them to establish the said indebtedness as emanating from them or linking them to the 1^st Defendant. The Claimant did not produce any document of commitment signed between the Claimant and the 1^st Defendant establishing the said indebtedness against the 1^st Defendant. Relying on the case of Nigeria Dredging & Maritime Ltd v. Gold (2007) ALL FWLR (Pt. 355) 505 @ 519 Para A-C where the Court held that it is not sufficient to make any allegation in pleading, credible evidence must be led in proof of it. The effect of failure of a party to call evidence in support of his own averment which is denied by the adverse party's pleading is that that averment is deemed abandoned notwithstanding evidence supporting it produced by the adverse party.

On issue two, submitted that the 1^st Defendant was issued the Pontiac Vibe vehicle by the Claimant under a car policy agreement which the said car policy letter was tendered before the court as Exhibit D004. The 1^st Defendant had established before this court that the 1^st Defendant had observed all the necessary requirements placed upon him under the car policy agreement by paying the 40 percent value of the vehicle to the Claimant. That in the case of Yusuf v. Adegoke (2007) ALL FWLR (Pt. 385)384@405 Para C-E where the Supreme Court held that; in civil cases, the burden of proof rests on the party whether Plaintiff or Defendant who asserts the affirmative of the issue called the onus probandi, it rests on the party who would fail if no evidence as the case may be were given on either side. The Claimant did not deny or challenge the averment of the 1^st Defendant in respect of the car policy letter of the Claimant written to the 1^st Defendant over the car policy agreement or the payment of the 40 percent value of the vehicle the 1^st Defendant paid to the Claimant.

The 1^st Defendant having paid the Claimant the 40 percent value of the Pontiac Vibe vehicle issued to the 1^st Defendant by the Claimant, the 1^st Defendant is now the official owner of the vehicle under the car policy agreement authored by the Claimant.

On issue three, submitted that the Claimant cannot unilaterally stop the salaries of the 1^st Defendant over an alleged indebtedness to the Claimant without the said indebtedness being proved by the Claimant against the 1^st Defendant to make the 2^nd & 3^rd Defendants liable to pay the Claimant. The Claimant cannot use the salaries of the 1^st Defendant to pay any alleged indebtedness to the Claimant without the said indebtedness being proved by the Claimant against the 1^st Defendant and doing so without proving same is a violation of the 1^st Defendant's right to fair hearing.

The Claimant went ahead to stop the salaries of the 1st Defendant over an allegation of a crime that was never reported to the Police and no investigation was conducted by an independent competent authority but only an administrative panel constituted by the Claimant of which on cross examination, the 1^st Defendant informed the court that he was never consulted or participated in any deliberation done by the said administrative panel of the Claimant.   The case of C. B. N. v. DINNEH (Supra) where the Supreme Court held that where there is an allegation of criminal wrong against a person, the jurisdiction to determine the allegation is vested in the courts and the exercise of such jurisdiction cannot be usurped by any administrative panel.

The Claimant did not file any complaint against the 1^st Defendant on the said allegation of crime and the matter was never reported to the Police or the court and failure to do so against the 1^st Defendant was a denial of his fair hearing on the matter.

On this matter the Claimant is both the complainant and the judge all put together on this allegation against the 1^st Defendant and so doing violated the cardinal principle of fair hearing especially that the 1^st Defendant responded that he did not participate in the deliberation that resulted in Exhibit CWO5 tendered before this court. The Claimant being the complainant and the judge of the matter through its administrative panel set up for this purpose, the Claimant has become a judge in its own cause and a violation of the principle of fair hearing. Cited the case of Agbabiaka v. F. B. N. PLC (2020) 6 NWLR (Pt.1719) 77@100 Para B-C where the Supreme Court held that the cardinal principle of fair hearing is twofold and expressed in the following maxims.

On the issue of whether the Defendants have proved their counter claim for the 1st Defendant to be entitled to judgment entered on the counter claim in his favor against the Claimant Counsel. 

Submit that the 1^st Defendant was issued the Pontiac Vibe vehicle by the Claimant under a car policy agreement which the said car policy letter was tendered before the court as Exhibit D004. 

On issue five, Counsel for the Defendant submitted that the 1^st Defendant had laid the foundation of the agreement/car policy that existed between the 1^st Defendant and the Claimant over the said vehicle before this court. The Defendants had established before this court that the 1^st Defendant had observed all the necessary requirements placed upon him under the car policy agreement by paying the 40 percent value of the vehicle to the Claimant. cited the case of Yusuf v. Adegoke (2007) ALL FWLR (Pt. 385)384@405 Para C-E where the Supreme Court held that; in civil cases, the burden of proof rests on the part whether Plaintiff or Defendant who asserts the affirmative of the issue called the onus probandi, it rests on the party who would fail if no evidence as the case may be were given on either side.

The Claimant did not deny or challenge the averment of the 1^st Defendant in respect of the car policy letter of the Claimant written to the 1^st Defendant over the car policy agreement or the payment of the 40 percent value of the vehicle the 1^st Defendant paid to the Claimant.

The 1^st Defendant having paid the Claimant the 40 percent value of the Pontiac Vibe vehicle issued to the 1^st Defendant by the Claimant, the 1^st Defendant is now the official owner of the vehicle under the car policy agreement authored by the Claimant.

The Claimant cannot unilaterally stop the salaries of the 1^st Defendant over an alleged indebtedness to the Claimant without the said indebtedness being proved by the Claimant against the 1^st Defendant to make the 2^nd & 3^rd Defendants liable to pay the Claimant. The Claimant cannot use the salaries of the 1^st Defendant to pay any alleged indebtedness to the Claimant without the said indebtedness being proved by the Claimant against the 1^st Defendant and doing so without proving same is a violation of the 1"Defendant's right to fair hearing. Where there is an allegation of crime, fraud, stealing or misconduct against an employee like in the instant case between the Claimant and the 1^st Defendant, the jurisdiction to determine the allegation is vested in the court and not any administrative panel of the Claimant.

ISSUES FOR DETERMINATION

I have carefully gone through the pleadings, evidence presented by the parties and the legal submissions of the parties, issues nominated by the parties are the same, I will therefore consolidate these issues and recouch the issues for the determination of this suit as follows:

1. Whether the 2^nd and 3^rd Defendants as the guarantors of the 1^st Defendant can be held responsible for the alleged indebtedness of the 1^st Defendant.
2. Whether Claimant has proved his case against the 1^st Defendant to warrant the grant of the relief sought by the Claimant.
3. Whether the Defendants/Counterclaimants have proved their counterclaim to entitle the Defendants/Counterclaimants to the grant of the counterclaim reliefs.

COURT’S DECISION

On issue one, the Claimant led evidence to state that the 2^nd and 3^rd Defendants are guarantors of the 1^st Defendant, and the 2^nd and 3^rd Defendants are liable for the indebtedness of the 1^st Defendant. The Claimant tendered Exhibits CW002 and CW003 to prove the guarantorship of the 2^nd and 3^rd Defendants of the 1^st Defendant. 

It is trite that a guarantor is technically a debtor because where the principal debtor fails to pay a debt, the guarantor will be called upon to pay the loan so guaranteed. The guarantor can, however, be absolved from liability if he can show that the principal debtor has paid the loan: see the case of AUTO IMPORT EXPORT V. ADEBAYO (2005) 19 NWLR (Pt. 959) 44 P. 126, paras. F- G and TRADE BANK PLC V. CHAMI (2003) 13 NWLR (Pt. 836) 158. 

A contract of guarantee constitutes a well-recognised exception to the general rule that a contract may be validly formed orally, in writing, or by the conduct of the parties. Unlike ordinary contracts, a contract of guarantee, which essentially involves a collateral undertaking to answer for the debt, default, or miscarriage of another, must be in writing to be enforceable against the guarantor. This principle was authoritatively settled by the Court of Appeal in the locus classicus of UMEGU V. OKO (2001) 17 NWLR (Pt. 741) 142 at p. 157, paras. A-D, where the learned Justices dilated thus: a contract of guarantee, which term implies an undertaking, must be in writing in order to be binding on the guarantor. If it is not in writing, it is not a contract of guarantee stricto sensu.

The rationale behind this stringent requirement is rooted in the need to protect the guarantor from being held liable upon loose or unsubstantiated oral assurances, given the secondary and contingent nature of the guarantor’s obligation. Being a contract uberrimae fidei and one of strictissimi juris, any purported guarantee not evidenced in writing falls short of the legal threshold required to impose liability on the surety. Consequently, where there is no written instrument clearly embodying the terms of the guarantee, no liability can be attach to the alleged guarantor, irrespective of any oral representations or purported conduct of the parties. The absence of a written guarantee is therefore fatal to any claim predicated thereon. 

In AFRICAN INSURANCE DEV. CORPORATION V. NIGERIA LIQUIFIED NATURAL GAS LTD (2002)4 NWLR (Pt. 653) 494 at 505 - 506 paras. H-A the Supreme Court held that:

The fact that the obligations of the guarantor arise only when the principal has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal or from the surety or give notice to the surety before the creditor can proceed against the surety nor does he have to commence proceedings against the principal whether criminal or civil, unless there is an express term in the contract requiring him to do so

See also the case of C.B.N. V. INTERSTELLA COMM. LTD. (2018) 7 NWLR (Pt. 1618) 294 P. 338, paras. B-E.

It is deducible from the authorities cited above that a guarantor can be held liable to indemnify the employer for any loss caused by the employee only if there is an express agreement for such repayment. In the absence of clear and unequivocal contractual stipulation imposing liability on the guarantor to make good the loss occasioned by the misconduct, default, or negligence of the employee, the guarantor’s obligation remains limited to the terms of the guarantee as originally undertaken. The law does not permit the extension of a guarantor’s liability by implication or equitable considerations alone, as guarantees are contracts of strictissimi juris.

Thus, where the guarantee instrument does not contain an express covenant or undertaking by the guarantor to indemnify the employer in respect of losses arising from the employee’s acts or omissions, no such liability can be fastened upon the guarantor. This principle safeguards the guarantor from unintended exposure beyond the precise scope of the surety’s engagement. It ensures that the employer bears the burden of securing adequate and explicit protective covenants where such indemnity is desired.

In the instant case, the Claimant has placed reliance on the Deed of Guarantee tendered as Exhibits CW002 and CW003. A careful perusal of paragraphs 2 and of the said Deeds of Guarantee reveals an unequivocal undertaking by the 2^nd and 3^rd Defendants. They expressly agreed to be personally responsible and liable for any loss or damage caused to the Claimant directly or indirectly by the 1^st Defendant in the course of his employment with the Claimant. They further covenanted to indemnify the Claimant for any such loss and damage. This provision satisfies the requirement of an express agreement for repayment/indemnity as mandated by the authorities earlier cited. It goes beyond a mere guarantee of the 1^st Defendant’s debt or obligation and extends to full indemnity for losses occasioned by his acts or omissions while in the Claimant’s employ. The language employed in paragraphs 2 and 3 of the Deed is unambiguous, specific. It leaves no room for doubt as to the intention of the 2^nd and 3^rd Defendants to assume personal liability and provide indemnity.

Having regard to the clear terms of Exhibits CW002 and CW003, the 2^nd and 3^rd Defendants, having voluntarily entered into this solemn undertaking, cannot now resile from their obligations. The law will hold them to the precise terms of their covenant. Accordingly, the 2^nd and 3^rd Defendants are liable to indemnify the Claimant for the proven losses suffered as a result of the 1^st Defendant’s conduct in the course of his employment. Issue one is thus resolved in favour of the Claimant. I so hold.

On Issue Two, it is necessary to state at the outset that the burden of proof remains the fundamental judicial algorithm for the resolution of claims before this Court. It is a trite law that a party who asserts must prove. Accordingly, where a claimant fails to adduce admissible and credible evidence in support of his claim, such a claim is liable to fail and cannot be granted by the Court. This Court is guided solely by the evidence properly placed before it and the applicable rules and principles of law. No amount of averments in pleadings, however eloquent, can substitute for credible evidence. The burden lies squarely on the Claimant to prove his case on the balance of probabilities, and where he fails to discharge that burden, the Court has no option but to dismiss the claim. In ASUERINME V. I.N.E.C. (2025) 17 NWLR (Pt. 2015) 433 P. 550 paras D – E where the Supreme Court held that: 

By virtue of sections 131(1), 132, and 133 of the Evidence Act 2011, he who asserts must prove the fact asserted. This is because the burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side. Therefore, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. That party in this case are the appellants who brought the petition. By the provision of section 133, the burden of first proving the existence or non-existence of a fact lies on them. It is only where they have adduced’ sufficient evidence, that the burden shifts to the opposing side.

May I further clarify that in civil suits such as this case, the burden of proof is not static; it shifts. The burden of proof lies on the Claimant who asserts claims against the Defendants. When the Claimant successfully discharges this burden of proof, the evidential burden now shifts to the Defendants to disprove what has been proved by the Claimant. The Supreme Court in the case of F.R.N. V. MAMU (2020) 15 NWLR (Pt. 1747) 303 where it gives credence to these rules of evidence that there is a distinction between burden of proof and evidential burden. Burden of proof of a case, which is an inflexible rule, rests on the plaintiff in civil matters, and evidential burden places the onus of proof on one making a specific assertion over a particular point essential to his stand on the matter, regardless of whether the person making the assertion is the defendant. It is undisputable that the burden of proof in a criminal case rests on the prosecution from the beginning of a criminal trial to the end. As a doctrine of law of evidence, evidential burden imports that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the onus of proof of such allegation rests on him.

Having carefully examined and evaluated the totality of the evidence placed before this Court, it is common ground and not in dispute that the 1^st Defendant was at all material times an employee of the Claimant. It is equally not disputed that the employment relationship between the Claimant and the 1^st Defendant was terminated vide Exhibit DW004. Notably, the 1^st Defendant did not challenge the termination of his employment either at the time or subsequently. It is settled law that facts which are not disputed or are admitted by the opposing party require no further proof. See Section 123 of the Evidence Act, 2011.

The Claimant, through CW1 in paragraphs 12, 13, 14, 15, 16 and 17 of his Evidence in Chief, led evidence to state that sometime in October 2023, it was discovered that the 1^st Defendant received products but did not deliver them to customers and neither did he make returns to the Claimant. The total outstanding of the 1^st Defendant to the Claimant was discovered to be N4, 968,918 (Four Million Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Eighteen Naira). Thereafter, the Claimant directed other sister companies to cease releasing stock to the 1st Defendant while the issue was under investigation. Consequent upon the findings of the unaccounted stock, the salary of the 1^st Defendant was suspended to recover part of the amount of the unaccounted stock which the 1^st Defendant took. The Claimant, in addition to withholding the 1^st Defendant's salary, also received some payments from the 1^st Defendant as part of the settlement of the outstanding. Out of a debt of N4,968,918 (Four Million Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Eighteen Naira), the 1^st Defendant was only able to reduce his indebtedness to N3,022,333.32 (Three Million, Twenty-Two Thousand, Three Hundred and Thirty-Three Naira, Thirty-Two kobo). In proving the outstanding debt, CW1 tendered Exhibits CW05 and CW06.

The Defendants, however, led evidence through the 1^st Defendant to state that there is no outstanding indebtedness between the Claimant and the 1^st Defendant in respect of amount talk less of the sum of N4, 968, 818 as alleged by the Claimant. It is not true that the 1^st Defendant ever paid any amount as personal indebtedness but as receipt of money from customers being the Medical Sales Representative of the Claimant or make payment from the sum of N4, 968, 918 to reduce same to N3,022,333.32 as alleged by the Claimant against the 1^st Defendant. After every amount collected from customers of the Claimant are received periodically such payment are deposited into the account of the Claimant in the bank unless those that customers prefer to pay directly into the Claimant's account to keep their record which the Claimant refused to reconcile its record with the 1^st Defendant.

The Defendants further stated that there was never a time when the 1^st Defendant received the goods/drugs of the Claimant but did not deliver the same to the Claimant's customers, and the 1^st Defendant denied that he diverted the goods/drugs of the Claimant to anyone. The 1^st Defendant only received goods/drugs from the Claimant valued at about N24, 335, 250 and remitted to the Claimant through its bank the sum of N22,240,630 and some goods/drugs had expired were valued N539, 330 because supplied were discovered to have just some few months to expired were supplied by the Claimant which the customers upon discovery rejected and returned same and refused to pay for them. The 1^st Defendant reported the situation of supplying drugs that will soon expire to the Claimant. The Claimant promised to do something about it, and there were some of the customers of the Claimant who, after the 1^st Defendant supplied drugs to them, usually preferred to make direct payment to the Claimant. Where customers with a direct account of the Claimant that the 1^st Defendant supplied drugs that payment is made directly to the Claimant, the Claimant, upon receipt of such payment, never called or informed the 1^st Defendant and because their account is not reconciled, the Claimant continues to believe that there is debt.

I have carefully examined evidence presented by both sides. The Defendants, by Exhibits DW10A and DW10B, have established that the Claimant, through Ibrahim Nancy, withdrew and received some drugs from Lauham Pharmacy on the 14^th of November 2023. Again, the Defendants made a salient assertion in paragraphs 9 and 10 of their Joint Statement of Defence where it was pleaded that there were some of the customers of the Claimant who, after the 1^st Defendant supplied drugs to them, usually preferred to make direct payment to the Claimant. Where customers with a direct account of the Claimant that the 1^st Defendant supplied drugs that payment is made directly to the Claimant, the Claimant, upon receipt of such payment, never called or informed the 1^st Defendant and because their account is not reconciled, the Claimant continues to believe that there is debt. 

The Claimant, by way of reply, did not deny this averment. Where new issues are raised in the statement of defence, the claimant is expected to file a reply thereto: see the case of OGOLO V. FUBARA (2003) 11 NWLR (Pt. 831) 231. In the instant case, that was not done by the Claimant. In the law of pleadings, a reply is only necessary where the pleadings (the statement of claim and the statement of defence) have joined issues. A reply is necessary where a statement of defence raises a fresh issue, which was not anticipated by the statement of claim. Where a statement of defence raises an issue, which is already averred to in the statement of claim, a reply is otiose: see the case of UNITY BANK PLC.V BOUARI (2008) 7 NWLR (Pt. 1086) 372. 

Anatomy of the Statement of Facts after disction in a Judicial opeartion theater reveals that the pleading of the Claimant did not anticipate the issue raised by the defence in paragraphs 9 and 10 of their Joint Statement of Defence thereby making the filing of a reply necessary to deny the assertion made by the Defendants in paragraphs 9 and 10 of their Joint Statement of Defence. The default of the reply in this instant case is fatal to the case of the Claimant, the issue raised by the defence in paragraphs 9 and 10 of their Joint Statement of Defence is deemed admitted. When a claimant fails to file a reply to facts pleaded by a defendant, such a failure is recognized as an admission of those facts: see the case of ANSA V. NTUK (2009) 9 NWLR (Pt. 1147) 557 and IWUOHA V. NIPOST LTD. (2003) 8 NWLR (Pt. 822) 308 Pp. 340, para. H; 341.

In addition to the failure of the Claimant in filing a reply to deny the issue raised by the defence in paragraphs 9 and 10 of their Joint Statement of Defence, evidence of DW1 that there were some of the customers of the Claimant who, after the 1^st Defendant supplied drugs to them, usually preferred to make direct payment to the Claimant. Where customers with a direct account of the Claimant that the 1^st Defendant supplied drugs that payment is made directly to the Claimant, the Claimant, upon receipt of such payment, never called or informed the 1^st Defendant and because their account is not reconciled, the Claimant continues to believe that there is debt. This piece of evidence remains unshaken and uncontradicted when DW1 solidifies his evidence under cross-examination that:

My duty as a sales rep is not to supply drugs to the Claimant’s customers, and if they pay, I also make the payment to the company account, and at times, some customers directly pay to the claimant directly (sic) into its account.

In P.D.P. V. MUHAMMAD (2023) 16 NWLR (Pt. 1910) 283 P. 303, paras. G-H the Supreme Court commented on the importance of cross-examination that cross-examination forms an integral part of court proceedings. Thus, answers derived from cross-examination are accorded similar weight as regards the facts in issue. Therefore, where answer elicited under cross-examination is relevant and direct to the fact in issue, as in the instant case, it cannot be glossed over or ignored by the court, merely because it is procured through cross-examination. 

Having found that the Defendants have successfully established, through credible evidence, that certain customers of the Claimant made direct payments into the Claimant’s account for goods supplied by the 1^st Defendant, the evidential burden clearly shifted to the Claimant to provide a detailed and satisfactory account of all such payments received directly from those customers and to demonstrate precisely how much, if any, remains unremitted by the 1^st Defendant.

There exists a material gap in the Claimant’s evidence which ought to have been filled. This Court cannot speculate or assume the role of the Claimant by filling in the lacuna in its case. It is not the duty of the Court to supply missing evidence or to bridge gaps in a party’s proof. The Claimant, having failed to discharge the shifted evidential burden, must bear the consequence of such failure.

The Claimant’s claim of indebtedness against the 1^st Defendant, and by extension against the 2^nd and 3^rd Defendants as guarantors, collapses like a wall of Jericho. Having regard to the totality of the evidence before the Court, the material gaps in the Claimant’s case, the admission arising from the failure to file a Reply, and the uncontradicted evidence of the Defendants on direct customer payments and lack of account reconciliation, the alleged indebtedness has not been proved to the satisfaction of the Court. The Claimant has failed to discharge the burden of proof placed upon it by law. Accordingly, the claim for the sum of N3,022,333.32 against the Defendants fails and is hereby dismissed.

On the claim of the return of the Pontiac Viber vehicle with registration number TYW 374 AA, the Claimant led evidence to state that the 1^st Defendant was also given a Vehicle Pontiac Viber vehicle with Registration Number TYW 374 AA to aid in the carrying out of his duties. The 1^st Defendant did not make Payment on the car Policy as agreed, and having been released from his employment due to his own wrongdoing, the 1^st Defendant ought to return the vehicle to the Claimant. 

The Defendants, through DW1, stated that the Claimant issued the vehicle Pontiac vibe with registration No. TYW374 AA to the 1^st Defendant under an official car policy through the Claimant's letter dated the 19^th day of March, 2021, wherein the 1^st Defendant was given the vehicle under the said policy to pay only 40% of its value on a prorate basis for 36 Months. The Claimant had been deducting the 40% value of the vehicle from the 1^st Defendant on a monthly basis from the monthly salaries of the 1^st Defendant from the 1^st day of March 2021 to the 28^th day of February 2024, making the 36 months stated in the official car policy of the Claimant. Having paid the complete amount of the 40% value of the vehicle by the 1^st Defendant on a monthly basis from the 1^st day of March 2021 to the 28^th day of February 2024, making the 36 months stated in the official car policy of the Claimant, the vehicle is no longer that of the Claimant but the 1^st Defendant. DW1 tendered Exhibit DW02.

It is without ouch of doubt that there is a car policy arrangement between the Claimant and the 1^st Defendant, the terms of the policy are embedded in Exhibit DW02. For ease of reference, Exhibit DW02 provides as follows: 

Dear Mr. OGALA,

OFFICIAL CAR POLICY

The above subject refers.

Further to the company car policy memo dated 19^th March 2021, I am pleased to inform you that the official car with Reg. No. TYW 374 AA is hereby assigned to you with effect from March 1st, 2021.

To this end please note the following:

• The cost value of the car is ?2,200,000.00 (Two million, and Two Hundred Thousand Naira only).
• 40% value to be paid by you is ?880,000.00 (Eight Hundred and Eighty Thousand Naira only).
• The 40% payment by you shall be prorated over a period of 36 months and shall be deducted from your monthly salary with effect from March, 2021.
• Maintenance of the car is your responsibility except in rare cases relating to engine and gear repairs which will be shared by 60:40 ratio between the company and you.
• As a joint employer and employee contribution scheme, the ownership of the vehicle will be transferred to the employee after payment of 40% value of the vehicle spread over 36 months.
• Kindly note that should you decide to terminate your employment before the 36 months policy period, you shall be required to pay the balance of both the 40% and the 60% respectively on the car policy to the company, otherwise your previous deductions shall be forfeited and the vehicle shall be returned to the company.

Please confirm your interest by acknowledging safe receipt of this letter.

It is beyond dispute that an Official Car Policy existed between the parties, the terms of which are clearly embodied in Exhibit DW02. From the document, the Claimant assigned the vehicle to the 1^st Defendant with effect from 1^st March 2021. The 1^st Defendant’s obligation was limited to the payment of ?880,000.00 (40% of the vehicle’s value) prorated over 36 months via salary deductions. Crucially, the policy expressly provides that ownership of the vehicle shall be transferred to the employee upon completion of the 40% payment spread over 36 months.

It is very glaring, like the rise of the sun from the east and the set of the sun in the west, that the deduction of the 40% contribution under the car policy commenced in March 2021. The termination of the 1^st Defendant’s employment took effect on the 12^th of January 2024. Consequently, the Claimant had deducted the said contribution from March 2021 to December 2023, representing a cumulative period of 34 months. This means the 1^st Defendant still had two (2) months left to complete the full payment of his 40% obligation under the 36-month policy. Indeed, Exhibit CW006 tendered by the Claimant itself confirms that the 1^st Defendant’s car policy balance stood at two months in the sum of N48,888.89. 

The Claimant in paragraphs 13 and 14 of the Statement of Facts pleaded that out of a debt of N4,968,918 (Four Million Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Eighteen Naira), the 1^st Defendant was only able to reduce his indebtedness to N3,022,333.32 (Three Million, Twenty-Two Thousand, Three Hundred and Thirty-Three Naira, Thirty-Two kobo). As of January 2024, the outstanding indebtedness, including unpaid car policy payments, was N3,092,381.54 (Three Million, Ninety-Two Thousand, Three Hundred and Eighty-One Naira, Fifty-Four Kobo). 

It is evident from the foregoing that the sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy was computed and compounded to the alleged unaccounted stock purported to have been received by the 1^st Defendant.

The Court had earlier found that the Claimant failed to prove the indebtedness in the sum of N3,022,333.32 (Three Million, Twenty-Two Thousand, Three Hundred and Thirty-Three Naira, thirty-two kobo) attributed to the 1^st Defendant.

The Claimant demanded the return of the Pontiac Vibe vehicle with Registration No. TYW 374 AA on the ground that the 1^st Defendant did not fully complete his 40% obligation under the 36-month Car Policy. However, the 1^st Defendant had, by the time his employment was terminated on the 12^th January 2024, paid for 34 months out of the 36-month period — representing almost 96% of his total obligation under the policy. In the circumstances, it would be inequitable to order the outright return of the vehicle to the Claimant after the 1^st Defendant had substantially fulfilled his financial commitment under the Car Policy. Equity does not aid one who seeks to approbate and reprobate or who attempts to reap the full benefit of a contract while denying the other party the fruits of substantial performance. The 1^st Defendant is liable to pay the Claimant the sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy. I so hold. 

Though the Claimant did not pray the Court for the payment of the sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy, it has also been exhaustively established that the sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy remains unpaid. That being said, the Court has the power to grant consequential relief to give effect to the finding of the Court, and this does not by any means turn the Court into a Father Christmas. In I.B.B. IND. LTD. V. MUTUNCI CO. (NIG.) LTD. (2012) 6 NWLR (Pt. 1297) 487 a consequential order is an order that stems from the judgment of a court and gives efficacy to it. 

In ANURUBA V. E.C.B. LTD. (2005) 10 NWLR (Pt. 933) 321 Pp. 347, para. G; 338, paras. D-E where the Court of Appeal held that an order which appears incidental and necessary for a proper and just determination of a case could be made by court as a consequential order though not claimed by any of the parties to a suit. The order must, however, flow directly from the order of court; a court of law not being a father Christmas is not possessed of jurisdiction to make an order not prayed for by the plaintiff in his claim. 

Flowing from the foregoing, the 1^st Defendant is liable pay the Claimant the sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy. Thus, Issue Two is partly resolved in favour the Claimant. The claim of the Claimant succeeds in part. I so hold.

The Defendants/Counter-Claimants raised a Counter-Claim against the Claimant. Reliefs 1, 2, and 3 sought in the Counter-Claim have essentially become otiose in view of the resolution of Issue Two in favour of the Defendants. Nevertheless, it is settled that a trial Court is duty-bound to pronounce on all issues properly raised before it by the parties. This is not only for the purpose of assisting an appellate Court, should the need arise, but also to afford the parties fair hearing and to demonstrate that all issues in controversy have been fully considered. I shall therefore proceed to consider the Counter-Claim on its merits.

The Defendants led evidence to state that the 1^st Defendant got information that the Claimant wanted to relieve the 1^st Defendant from his employment as its Medical Sales Representative, the 1^st Defendant engaged his Solicitors to write the Claimant for stock taking and verification of all the transactions of the 1^st Defendant in the course of his employment with the Claimant, but such was not done to date. There is no time that both the Claimant and the 1^st Defendant met and resolved as to the extent of any debt between the parties. Though this averment was denied. Notwithstanding non-denial, the lacuna here is that the Defendants did not plead and lead evidence of the particular part of the Terms and Conditions of Service alleged to have been breached by the Claimant to warrant the grant of relief 1 of the counterclaim.

In the case of  F.M.F. LTD, V. EKPO (2004) 2 NWLR (Pt. 856) 100 it was held that when an employee complains that his employer or former employer, as the case may be, is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the following duties to perform, that is: to place before the court the staff conditions of service or the terms of the contract of employment; and to prove in what manner the said staff conditions of service or the terms of contract of service were breached by the employer. This is because he who asserts must prove, and the conditions of service or the terms of contract of service are the bedrock of the case. It is not the duty of the employer who is the defendant in the action to prove any of those things.

The Defendants tendered the Claimant’s Employee Handbook, admitted as Exhibit DW01; however, the Defendants did not allude to any part of Exhibit DW01 to prove their claim. Exhibit DW01 was not linked to any specific pleading of the Defendants; this is a typical instance of dumping the document on the court. In MAKINDE V. ADEKOLA (2022) 9 NWLR (Pt. 1834) 13 Pp. 45-46, paras. H-C where the Supreme Court held that:

On no account must counsel dump documents on the trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case.

Therefore, relief 1 on the breach of Exhibit DW01 fails, and its hereby dismissed. 

On the issue of denial of fair hearing as claimed by the Defendants, there is no evidence before this Court that the Claimant constituted any investigative panel or disciplinary committee under any law; hence, the issue of denial of fair hearing cannot arise. Section 36(1) of the 1999 Constitution arises where the denial of fair hearing has been charged against a court or tribunal established by law and not before domestic or standing/ad hoc tribunals raised departmentally by the parties: see the case of EKUNOLA V. CBN (2013) 15 NWLR (Pt. 1377) 224. In GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (Pt. 1350) 289 the Supreme Court held that for a question of fair hearing to apply, there must be in existence valid and subsisting proceedings. The existence must be real and not hypothetical or imaginative. The claim of denial of fair hearing is nothing but a mere shadow boxing, and therefore, relief 2 on the denial of hearing fails. I so hold.

In respect of relief 3 of the counterclaim, the Defendants led evidence to state that the Claimant alleged the 1^st Defendant of committing fraud, illegality and criminality, and these allegations require the Claimant to prove beyond a reasonable doubt. That the allegations of fraud, illegality and criminality against the 1^st Defendant had violated the provision of Exhibit DW01. First of all, generally, where the dismissal of an employee is based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand. This is to give the employee adequate opportunity to explain himself before a tribunal vested with criminal jurisdiction, before his employer takes any disciplinary action against him. The focus is primarily on the right to fair hearing rather than on a vindictive exposure of the erring employee to the punitive sledge of the criminal law. However, it is not in every case that an employee must be arraigned before a court before disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge: see the case of AZENABOR V. BAYERO UNIVERSITY, KANO (2009) 17 NWLR (Pt. 1169) 96. 

So, the stoppage of the salary of the 1^st Defendant does not in any way undermine the prosecution of the criminal case against the 1^st Defendant; the Defendants have also failed to prove any part of Exhibit DW01 purported to have been breached by the Claimant to entitle the Defendants to Relief 3 and 6 of the counterclaims.

On the issue of the vehicle, it was found under Issue Two that the 1^st Defendant had paid a substantial part of his 40% obligation under the 36-month policy, though, with the outstanding sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy. Though Exhibit DW02 stated that 

However, the Claimant terminated the employment of the 1^st Defendant; it is not the 1^st Defendant who terminated his appointment as envisaged in Exhibit DW02, therefore, it will be unjust and inequitable to forfeit the payment already made by the 1^st Defendant. The Claimant shall surrender the title and ownership of the vehicle and documentation thereon in favour of the 1^st Defendant. I so hold.

The Claimant admitted in its pleadings and through the testimony of CW1 that the salary of the 1^st Defendant was suspended to recover part of the alleged unaccounted stock. By Exhibit DW004, the Claimant explicitly admitted utilising the 1^st Defendant’s salaries for the months of September 2023 to December 2023 to offset the alleged indebtedness. Having held under Issue Two that the Claimant failed to prove the alleged indebtedness against the 1^st Defendant, it follows that the suspension of the 1^st Defendant’s salaries and the application of same towards the unproven debt were unjustified. Consequently, the 1^st Defendant is entitled to the payment of his withheld salaries for the months of September 2023 to December 2023, amounting to the sum of N432,000.00 (Four Hundred and Thirty-Two Thousand Naira). I so hold.

The Counter-Claimants also claimed payment of 13^th month salary, leave grant, refund of fueling cost/vehicle maintenance, as well as accident, operation, and cost of treatment. These heads of claim ordinarily flow from the conditions of service of the Claimant. However, a fundamental defect in the Counter-Claim is that the 1^st Defendant failed to specifically plead the relevant portions of the Conditions of Service (Exhibit DW001) upon which his entitlement to these claims is hinged.

It is trite that a party who seeks to rely on the terms of a document must specifically plead and relate those terms to the relief sought. A general reference to a document without tying the relief to the specific provisions relied upon is insufficient. The Counter-Claimants did not plead any particular clause or provision of Exhibit DW001 that entitles the 1^st Defendant to the above-stated claims.

In the absence of such specific pleading, the Counter-Claimants have failed to establish their entitlement to these reliefs. Accordingly, the claims for 13th-month salary, leave grant, refund of fueling cost/vehicle maintenance, accident, operation, and cost of treatment are unproven and are hereby dismissed. I so hold.

Flowing from the foregoing, Issue three is partly resolved in favour of the Defendants

On the whole, I hereby order as follows: 

1. The 1^st Defendant shall pay the Claimant the outstanding sum of N48,888.89 to complete the full payment of his 40% obligation under the 36-month policy
2. The Claimant shall pay the 1^st Defendant the sum of 432,00 being the accumulated salaries unpaid for 4 months.
3. The Claimant shall surrender the title of the Pontiac Viber Vehicle with Registration Number TYW 374 AA and formalise all necessary documentation of the vehicle in favour of the 1^st Defendant.
4. I decline to award any cost. 
5. All terms of this Judgment are to be complied with within 30 days from today without prejudice to the right of Appeal by both Parties. 

Judgment is entered accordingly. 

 

HON. JUSTICE BASHAR A. ALKALI

HON. JUDGE

NATIONAL INDUSTRIAL COURT OF NIGERIA

KADUNA JUDICIAL DIVISION