IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 22nd April 2024                                                   

SUIT NO: NICN/ABJ/29/2022

 

Between:

 

Sylvanus Chime                                                                  -                                   Claimant

 

And

 

1.     Bouygues Construction Nigeria Limited

2.     Austin Egbuche (Human Resource,                                                             Defendants

Bouygues Construction Nigeria Limited)                                                                            

 

Representation:

Sam-John Usani, with him, Adewale Mosuro for the Claimant

Munachiso Michael, with him, Ikechukwu Ubaka, I. Y. Melah, F. Jarigo, Pamela Akugbe and I. Nna-Ude for the Defendants

                                                                                   

    JUDGMENT

On 1st February 2022, the claimant instituted this action against the defendants wherein he claims the following reliefs:

1.      A declaration that the removal of the Claimant from the 1st Defendant Company by the Defendants was malicious, unjust and wrongful.

2.      A declaration that the deliberate refusal of the Defendants to pay the Claimant his appropriate, commensurate and complete benefits and entitlements even after his malicious, unjust and wrongful removal from the 1st Defendant company is unlawful and runs foul of the extant labour laws of the Federal Republic of Nigeria.

3.      A declaration that the Defendants' allegation of fraud and forgery is false and unfounded and the Claimant's reputation was defamed by virtue of the Defendants' libelous publications/letters of 15th December, 2021 and 17th December, 2021 respectively.

4.      An order of this Court mandating the Defendants jointly and severally to pay the Claimant his benefits and entitlements in the sum of N1,453,482.19 only.

5.      An order of this Court mandating the Defendants jointly and severally to pay the Claimant the Compound interest accrued on the total sum of the Claimant's benefit at the rate 20% per month from 22nd October, 2021 to the date of liquidation of the said sum.

6.      An order of this Court mandating a post judgment sum of 10 % interest rate from the date of judgment until same is fully liquidated.

7.      An order of this Court mandating the Defendants jointly and severally to pay the Claimant the sum of N100,000,000 as general, punitive and Exemplary damages for the defamation of the Claimant's reputation and for his malicious and wrongful removal.

8.      The sum of N5,000,000 as cost of litigating this suit.

9.      Such other orders this Honourable Court may deem fit to make in the circumstance.

 

The defendants filed their statement of defence on 18th May 2022 together with a counter claim against the claimant wherein the defendants sought the following reliefs:

1.      A declaration that the Defendant's acts of extorting money from the Counterclaimant's security officers and obtaining requisitions from the Counterclaimant based on fabricated medical expenses constitutes gross abuse and are unethical, condemnable and grossly unprofessional.

2,         An Order mandating the Defendant to pay the sum of N702,149.50 to the Counterclaimant, being the accumulated sums fraudulently obtained by the Defendant by his acts of misrepresentation and fabrication of medical expenses.

3.         Interest on the judgment sum at the rate of 10% from the date of judgment until the entire judgment sum is paid.

4.         Cost of this action on a full indemnity basis including but not limited to the sum of N5,000,000 incurred by the Counterclaimant as cost of engaging counsel to represent it in these proceedings and its out-of-pocket expenses.

 

CLAIMANT’S CASE

In proving his claims, the claimant called two witnesses. The claimant is CW1 while one Nwodu Ikechukwu is CW2. In his own evidence, the claimant told the court that he was employed by the Defendants on 1st April 2014 and through his dedication and hard work, he rose to the position of Senior Human Resource Officer in the 1st defendant. On several occasions, the Head of Human Resources, Mr. Austin Egbuche, made attempts to remove him from the company but without success. Mr. Austin Egbuche retired officially from the service of the 1st defendant on 30th June 2021 and on 1st July 2021, the claimant was promoted to the position of Head of Human Resource of the 1st defendant. The claimant said while he was acting in his official capacity as new Head HR, Mr. Austin Egbuche kept on coming and was pleading with the Managing Director to let him stay till the end of 2021. Although no official document was issued to Mr. Austin Egbuche, he continued using his office while the claimant retained the official documents as the Head of Human Resource Department. On October 22nd 2021, Mr. Austin Egbuche and Simon Kattah connived to remove the claimant from office by presenting a Redundancy Letter dated 25th October 2021 informing the claimant of the decline in the activities of the company. As a result, the 1st defendant proceeded to prepare the claimant’s Redundancy Benefit in sum of N1,281,038.07 and issued a pay slip to that effect.

 

The claimant said the above amount of his benefit does not reflect the accurate entitlement due to him. He said his entitlement should be N1,453,482.19 and he proceeded to compute his entitlement. He arrived at the sum of N1,453,482.19 after deductions. He said he brought this observation to the notice of the accountant who duly acknowledged same in line with the 1st defendant’s End of Year Bonus Schedule for the year 2021. After waiting for a while without the 1st defendant paying his benefits and despite repeated demands, he briefed Star Attorneys who wrote a demand letter dated 13th December 2021 to the 1st defendant. Upon receipt of the letter, Mr. Austin Egbuche responded in a letter dated 15th December 2021 that the reason why the claimant has not been paid is because the claimant was under investigation for fraud pertaining to falsified invoices found on the claimant’s computer months after the claimant was laid off and had handed over the Company's properties in his possession to the 1st defendant. In response, the claimant’s solicitors wrote to notify the 1st defendant of the claimant’s intention to institute an action in a letter dated 16th December 2021 but the 1st defendant, through Mr. Austin Egbuche, replied to the claimant’s Solicitors vide a letter dated 17th December 2021 expressing willingness to pay the claimant’s entitlements but less N702,149.50 said to be in respect of the invoices undergoing investigation. Then, on 24th December 2021, the claimant received the sum of N579,000.00 from the Defendants as against the calculated sum.

 

The claimant said the allegation against him is false and maliciously conceived to discredit him. It was also a ploy by the Defendants to strip him of the benefits due to him after years of meritorious service to the 1st Defendant. The unfounded allegation is defamatory, impinged his reputation and maliciously calculated to expose him to public contempt, odium, ridicule and to lower him in the estimation of right-thinking members of the society. He further stated that all the procedure adopted by the Defendants in the process leading to his removal were wrong, malicious, null and void and of no effect whatsoever. According to the claimant, the Defendants have no defense to his claims

 

The claimant filed a reply to the defendant’s statement of defence on 28th June 2022 and he strangely made further claims in the reply. In paragraph 18 of the reply, the claimant aver thus:

“The claimant avers the outstanding balance of N290,259.02 Two Hundred and Ninety Thousand, Two Hundred and Fifty-Nine Naira, Two kobo) has not been paid to him.

 

WHEREOF the Claimant further claims against the Defendants:

a)     AN ORDER of this honourable Court mandating the Defendants jointly and severally to pay the Claimant his outstanding United Capital Asset Management Fund otherwise known as Staff Providence Fund in the sum of N290,259.02 (Two Hundred and Ninety Thousand, Two Hundred and Fifty-Nine Naira, Two kobo) only.

b)     SUCH OTHER ORDERS this Honourable Court may deem fit to make in the circumstance.”

 

The claimant accompanied the reply with an additional statement on oath which he adopted as his further evidence. In the additional evidence, the claimant said the 1st Defendant's Headquarters is in France and has other branches one of which is in Nigeria. The overall corporate body is "BOUYGUES CONSTRUCTION" and can be tagged "BOUYGUES CONSTRUCTION NIGERIA" depending on the country of location. At no time during the course of his employment with the 1st Defendant was he warned, cautioned or disciplined. The alleged suspension letter is false, fictitious and manipulated by the 2nd Defendant to mislead this court. As a practice, no official document is usually issued to appoint Head of Human Resource. The appointment is implied from the official functions. In his case, upon retirement of the 2nd Defendant, he was the only staff in the HR department. He borrowed Mr. Paul Damodu the sum of N150,000 to augment his money to enable him purchase a land. In his capacity as the HR, he usually borrows staff money.

 

The claimant said he was never invited for disciplinary meeting. On 22nd October 2021 was the date the management presented Redundancy Letter to him informing him of the decline in activities of the 1st defendant. On that date, an argument ensued between him and the 2nd Defendant when he told the 2nd defendant that the 2nd defendant had succeeded in removing him. Mr. Simon Kattah, who was present, cautioned the claimant on the statement and this made the claimant send an apology text to Mr. Simon Kattah the next day. The security staff were not under his supervision and he was not their Head of department

 

The Statement in the End of Year Memo bonus 2021 prepared by the MD of the 1st defendant clearly stipulates the amount and did not provide for one way or return. The Company has an internal procedure for accessing reimbursement of medical treatment from Hospitals other than the Company's Clinic which includes getting approval from the Head Nurse and Management. To claim for reimbursement, the document has to go through different processes as seen in the Expense Claim Form (Medical Expenses) annexed by the Defendants which include getting approval from the Head Nurse upon confirmation from the Hospital that the said document is authentic; approval from the Head of Department after confirming from the Hospital that the Document is authentic; approval from Cost Controller after confirming that the document is authentic; approval from the Chief Finance Officer and getting approval from Account Department who then makes the payment. The essence of the whole process is to validate the authenticity of the claim before disbursing same.

 

Part of the company's policy after relieving a staff is to retrieve all company properties in possession of the staff after which the company proceeds to carry out verification to make sure that the records are in order, thereafter proceeds to issue discharge certificate and pay slip of the employee's benefit which the 1st Defendant has done. The 1st defendant had never called him to question him about the receipts. After this suit was filed, the 1st Defendant liquidated the claimant’s Staff Providence Funds contribution of N1,104,962.26 with United Capital Asset Management. As provided in the pay slip, the employer contribution is N407,351.62 and the Employee Contributes the same amount of N407, 351.62. After the said deduction, outstanding balance is paid into the employee's account. The claimant said the outstanding balance of N290,259.02 has not been paid to him.

 

The claimant tendered some documents in evidence which were admitted in evidence and marked Exhibits C1 to C10. In cross examination, the claimant said he was in the HR department throughout his employment with the 1st defendant. He held several positions until he became the Head of HR. At the time the 2nd defendant was the Head, HR, he was a deputy senior HR Officer and they were 3 of them in that position but he was the only one retained. The expatriate HR Manager handed over to him the tasks she was doing before she returned to France. He worked under the 2nd defendant until he retired.

 

While he worked with the 1st defendant, he had an impeccable disciplinary record. He never received warning letter or suspension. The letter of suspension dated 15th October 2020 said he was suspended for four days but he received his full pay for October 2020. He knows Damodu Paul, Johnson Ugwu, James Onuh and Isiaka Nuhu. They were security men working at Ecoview site but he never worked on any site and he had no close relationship with any of them except Paul Damodu who once came to the headquarters to apply for loan. When the loan application was turned down by management, the claimant loaned Paul Damodu the sum of N150,000. Paul Damodu is yet to fully repay the loan. The claimant said he did not do anything wrong until October 2021 when he received the redundancy letter. He also said it is not correct that Mr. Damodu Paul, Johnson Ugwu, James Onuh and Isiaka Nuhu made monthly remittances to him. These persons have no reason to lie against him, except if the company wants to use them against him. He uses Access Bank but he cannot remember his account Number. The loan of N150,000 naira he gave to Mr. Damodu was given in cash and Damodu, if brought to court, will admit that claimant gave him the loan of N150,000. While working with the 1st defendant, he had medical coverage. He made claims relating to medical re-imbursements but cannot remember the dates. When claims are made, payment is made in full by the company. He was paid for the claims he made.

 

In re-examination, the claimant tendered his pay slip for October 2020 in evidence. Although objection was raised to its admissibility by counsel for the defendant, the document was tentatively admitted in evidence and marked exhibit C11 pending ruling on its admissibility during judgment.

 

The claimant’s second witness, CW2, told the court that he is a former employee of the 1st Defendant and he knows the claimant. Most of the evidence of CW2 is about the good character, reputation and personality of the claimant for which CW2 and other persons know the claimant for. CW2 mentioned that the claimant rose to the position of Senior Human Resource Officer of the 1st Defendant be he was surprised when the Defendants maliciously and falsely published against the claimant in a letter dated of 15th December 2021 to the claimant’s solicitor that the claimant was under investigation for fraud as there were evidence of falsification of National Hospital invoices on his computer to defraud the company and that the company will only pay his redundancy benefit once the investigation is completed and the claimant is found not guilty. CW2 said he read a copy of the letter and he discovered that it has been read within the Defendants Company owing to numerous phone calls he received from Colleagues about the letter. He said he knows that the publication is untrue, painted the Claimant in bad light and has exposed the claimant to public opprobrium. This is an addition to portraying the claimant as having engaged in forgery. CW2 said all through the life of the claimant, the Claimant has earned for himself a reputation for honesty, financial prudence and decency in public dealings but the published words are false, malicious, highly defamatory and have exposed the claimant to public odium and ridicule from reasonable members of the society. The publication has also lowered the Claimant's estimation and injured him in his business and career. CW2 said after he read the publication of the defamatory words, he visited the Claimant and he expressed his dismay at the contents of the publication. The Claimant told him he retained the services of a law firm to write to the Defendants.

 

Under cross examination by counsel for the defendants, CW2 said he knew the claimant since 2014 when the claimant joined the 1st defendant in 2014 while he joined the 1st defendant in 2010. They worked together for 3 years. CW2 said he left the company in 2017 before the claimant. They did not work in the same department. The claimant was in HR while he was on site. He came across Exhibit C8 at the head office of the defendant. The letter is not addressed to him and he does not know Star Attorneys. He is aware that communication with a lawyer is privileged communication. He added that the person whose table he saw Exhibit C8 is best known to him. In re-examination, he said the letter was published in their WhatsApp platform by the company.

 

DEFENDANTS’ DEFENCE AND COUNTERCAIM

On the other hand, the defendants, in defence of the claims of the claimant and in proving their counter-claim, called 3 witnesses. DW1 is Austin Egbuche, the 2nd defendant in this suit. He said he is the Human Resource Officer of the 1st Defendant which was incorporated under the laws of the Federal Republic of Nigeria to carry on business in Nigeria only. He also said the Claimant held the position of Senior Human Resource Officer in the 1st Defendant until the 22nd of October 2021 when the claimant’s employment was lawfully terminated. According to DW1, during the course of the Claimant's employment, the Claimant was subjected to a number of disciplinary actions, one of which was a 4 days suspension for his unprofessional behaviour sometime around October 2020 for disclosing and sharing sensitive staff data without senior authorization.

 

At a time, the 1st Defendant's Human Resource department had 3 Assistant Senior Human Resource Officers, including the Claimant, but following a downsizing in the 1st Defendant, the other two assistants were made redundant leaving the Claimant as the only Senior Human Resource officer. The Claimant was at no time appointed as the Head of Human Resources neither was he involved in managerial decisions of the 1st Defendant. In September 2021, the Chief Financial Officer of the 1st defendant, Mr. Simon Kattah, was informed by Mr. Friday Umaru, a junior staff secretary, of the Claimant's extortion of four of the 1st Defendant's security staff who are Mr. Paul Damodu, Mr. Johnson Ugwu, Mr. James Onuh and Mr. Isiaka Nuhu.  The Claimant had been extorting the security staff since July 2019 under the falsehood that he will help secure their jobs from redundancy as the HR officer in charge of the site. Following this report, an investigation into the allegation was launched and on 19th October 2021, Mr. Simon Kattah met with Mr. Paul Damodu who confirmed the allegations and provided bank statements showing transfers he made to the Claimant on different occasions. The matter was reported to the Managing Director of the 1st Defendant and on 22nd October 2021, the Claimant was invited to a disciplinary meeting with Mr. Simon Kattah and DW1. The Claimant admitted the allegation and pleaded for mercy upon being presented with the bank statements showing payments made to him. The four security staff of extorted by the Claimant made written reports which they signed. By Article 36 (b) of the National Joint Industrial Council Conditions of Service for Senior Staff and the Company's Ethics Policy, the punishment for extortion of money from other staff and corruption or attempting to corrupt other employees, is immediate dismissal without notice and without terminal benefits. Instead of an outright dismissal, which is the appropriate disciplinary sanction for the Claimant's actions, the 1st Defendant decided to give the Claimant a redundancy notice. After the claimant was relieved of his employment, he sent a text message to Mr. Simon Kattah on 23rd October 2021 wherein he apologized for his actions and pleaded to be reinstated.

 

The 1st Defendant acknowledges a shortfall of N50,563.17 in the calculation of the Claimant's Christmas bonus and same has been reflected in the Claimant's third-party account. Since the Claimant worked for 10 out of 12 months, he was entitled to a Christmas bonus of N171,914.77. Also, for the Christmas transport allowance, since it was one way only as the Claimant would not return to work, the Claimant was entitled to N87,500.00. The total sum the Claimant was entitled to be paid is the sum of N1,331,593.24 as computed in the table in paragraph 14 of the evidence of DW1.

 

DW1 testified further that upon the termination of an employee's employment, it is customary for the 1st Defendant to retrieve company property within the employee's possession as well as process, store or reallocate the property retrieved. During this process, the 1st Defendant's IT department discovered and flagged templates of hospital receipts on the Claimant's computer system created on 30th July 2019. The 1st Defendant was investigating an issue of a discrepancy in a receipt involving a staff of the 1st Defendant, Mr. Francis Destiny. Upon close review of one of the receipts, it was noticed that the date on the receipt was the same date as the junior staff union elections in which Mr. Francis Destiny contested for a union position. Mr. Francis Destiny could not have played an active part in the elections while at the hospital. At the disciplinary interview of Mr. Francis Destiny's, he stated that the receipts in question were organized by the Claimant. At this time, the claimant had been made redundant. The 1st Defendant immediately launched an investigation into hospital receipts resembling those presented by Mr. Francis Destiny.

 

The Claimant had requisitioned and obtained reimbursement of the following sums from the 1st Defendant: N51,850.00 and N439,504.50 as expenses incurred for medical services at Garki Hospital Abuja; N112,580.00 and N98,215 as expenses incurred for medical service at National Hospital Abuja. The 1st Defendant wrote to both Garki Hospital Abuja and National Hospital Abuja to confirm the expenses. In response, Garki Hospital Abuja confirmed that the Claimant's dependents accessed health care at the hospital and he was charged only N118,260.00 because 80% of the medical bills were covered by the Claimant's spouse health insurance. But the claimant requisitioned and obtained the total sum of N491,354.50 from the 1st defendant. The National Hospital Abuja also responded and confirmed that the claims were fake when it observed that the patients reference numbers stated by the Claimant belonged to some other patients and not the Claimant's spouse, and that, any information or document outside those details did not emanate from the hospital.

 

Upon receipt of the Claimant's solicitor's letter dated 13th December 2021 requesting for the Claimant's redundancy benefits, the Defendants replied via a letter dated 15th December 2021 informing the Claimant's solicitor of the ongoing investigation and the willingness to pay all that is due to the Claimant once the investigation is concluded. Following internal deliberations, the 1st Defendant's management resolved to pay the Claimant the sum of N579,000 being his final entitlement less the sum of N702,149.50, which is the sum being investigated, subject to when the Claimant is able to provide valid hospital receipts to cover the investigated sum. This decision was communicated to the Claimant in a letter to his solicitors dated 15th December 2021. DW1 testified further that due to the Claimant's acts, the 1st Defendant has incurred a loss of N702,149.50 being the total sum paid to the Claimant based on untrue requisitions for medical expenses incurred at the National Hospital and Garki Hospital Abuja. It was further contended that the Claimant used his position to expose the 1st Defendant's staff to extortion, forgery and insincere behaviour which, unfortunately, has been imbibed by some staff in the 1st Defendant.

 

DW1 tendered some documents in evidence which have been marked exhibits D1 to D9. In cross examination by counsel for the claimant, DW1 testified that the claimant worked with the 1st defendant from 2014 till October 2021 when he was removed on grounds of redundancy. The claimant’s redundancy/terminal benefit, which was the sum of N1,453,482.19, was processed to be paid to him. The defendant did not refuse to pay him but some fraudulent activities were discovered and investigation was being made into them. It was discovered that the claimant had submitted forged receipts (medical) and he was paid an amount less than the fraudulent claims. The claimant was asked him to produce original receipts to enable the defendants pay him whatever is outstanding. DW1 said he retired on 30th June 2021 but he kept on going to the company. He was retained after his retirement and before the claimant was removed. Exhibit D1 is his service agreement. He said the Claimant did not become the Head of HR after DW1 retired.

 

Exhibit C11 is the Claimant's pay slip for October 2020. The claimant was not paid the full amount because part of it has not been established as they were forged. There is a procedure for reclaiming expenses from the company. If there is a claim for medical expenses, it first goes through the head nurse, thereafter, it goes to the cost controller, then to the head of the person's department and lastly to the account or cashier for payment. DW1 identified his signatures in Exhibits D4[a] and D4[e] and said he approved them. He confirmed that being the Claimant's head of department, I approved the claimant's requisitions after the nurse and the cost controller have validated them. He also told the court that these are the same documents he is telling the court was forged. The claimant had already been removed on redundancy before the inflated receipts were discovered.

 

The claimant was invited but he did not show up before Exhibit D7(a) and D8(a) were made. The invitation extended to the claimant was verbal, that is via telephone. He does not know the senior staff union has a WhatsApp group.

 

DW2 is Umaru Friday, an employee of the 1st Defendant. On 18th September 2021, he was at the Cashier office to conduct a search and to make requisitions and during his search, he came across a receipt bearing the name of Mr. Destiny Francis issued by the National Hospital. Upon perusal of the receipt, he discovered that it was issued to Mr. Destiny Francis on the same day that they conducted their junior staff elections. This was unusual and strange as Mr. Destiny Francis had participated as a contestant in the elections and was on ground throughout the elections. Following this discovery, he made a copy of the receipt and handed it over to management for investigation. Three weeks later, a 3-man committee, comprising of himself, Mr Austin Egbuche and Mr Simon Kattah, was set up to investigate of Mr. Destiny Francis and the authenticity of the receipt. During the investigation, they discovered that Mr. Destiny Francis was on the election ground on the day he claimed to be hospitalized. Mr. Destiny Francis also told the committee that the receipt in question was given to him by a man under the directive of the claimant but he refused to disclose the name of the man. Mr. Destiny Francis further revealed that he spent only N50,000 but he presented a receipt of N75,350 to the management and after the money had been disbursed, he took the sum of N50,000 and gave the remaining balance to the claimant.

 

DW2 continued that in September 2021, he was posted to the Ecoview site on relieve duty. By the end of that month, he was informed by Mr. Paul Damodu, Mr. James Onuh, Mr. Johnson Ugwu and Mr. Isiaka Nuhu of the monthly payments that were making to the claimant. These persons also told him that the payments were to ensure that the Claimant protected the jobs of the security officers. DW2 said he instructed the persons to stop making payments to the Claimant because it was illegal and that they should not be afraid of losing their jobs on grounds of redundancy. When next the claimant reached out to the staff at Ecoview to request for the usual payment, the staff refused and informed the claimant that DW2 had instructed them not to pay the money to him anymore. This made the claimant angry but he never insisted on further payments afterward.

 

In cross examination, DW2 said the committee was set up to investigate Mr. Destiny Francis and not the claimant. The claimant was not invited.

 

DW3 is Paul Damodu, a Security Staff in the 1st Defendant. Sometime in July 2019, at about 2pm on a Wednesday afternoon, the Claimant visited the site at Ecoview Commercial Development and informed all the workers at the site at the time, including DW3, that the 1st defendant had plans to place all the security men at Ecoview on redundancy and employ other persons who have agreed to be paying the sum of N20,000 each month in their stead. The claimant also said he could help protect their jobs on the condition that they pay him N10,000 each on a monthly basis. DW3 said they pleaded to be paying N5,000, which amounted to a total of N20,000 monthly. From July 2019, they paid the agreed sum of N5000 to him monthly in cash and later demanded for his account details to enable them transfer the money to him. The Claimant provided the account details and they continued to pay him the agreed sums through bank transfers.

 

In September 2021, their Union Secretary, Mr. Umaru Friday, was posted to Ecoview site on relieve duty and by the end of that month, they requested that he also contributes N5,000 as part of the money to be sent to the Claimant for that month. Mr Umaru Friday inquired as to the reason for the contribution and they informed him that it was to ensure that the claimant protected their jobs from redundancy. Mr. Umaru Friday told them not to pay the money again to the Claimant because it was illegal and they should not be afraid losing their jobs on grounds of redundancy. About three days after, the Claimant reached out to the staff at Ecoview to request for the usual payment but they told the claimant Mr. Umaru Friday had advised them not to pay again. The Claimant was angry but he did not insist on further payments afterward.

 

Through DW3, a handwritten report dated 8/2/2022 was admitted in evidence and marked exhibit D10 while a First Bank Statement of account was also admitted and marked exhibit D11.  In cross examination, DW3 said the claimant is in HR and he was not the security supervisor. In 2019, the claimant was not the Head of HR department. The Claimant worked at the head office while he worked at ECOVIEW site. He was expected to testify in favour of the company but his story is not a fabrication. It is not correct that he borrowed money from the Claimant. The N5000 payment was to secure their jobs. The claimant approached them on site and asked them to be paying him N10,000 monthly in order to secure their job, because according to him, they were about to be made redundant. They pleaded with him and he later agreed to collect N5000 each from them. At the initial stage, they were paying him cash, but later, they started transferring to his account as shown on Exhibit D11. They were four in number. The others paid N5000 into his account and he forwarded the total to the claimant.

 

I have read the various final written addresses of counsels as well as the 1st defendants’ reply on points of law. I do not see any reason to rehash their contents here. However, arguments proffered by counsels in their respective written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.

 

DECISION

Before I determine the suit, let me resolve some preliminary issues.

 

When the claimant, as CW1, tendered his pay slip for October 2020 in evidence in re-examination, counsel for the defendants objected to its admissibility on the ground that it was not frontloaded. Although the document was marked Exhibit C11, I reserved the ruling on the admissibility of the pay slip. As observed by the counsel for the defendants, the document was not frontloaded by the claimant. That is even beside the point. I find that the claimant did not plead the pay slip for October 2020 and I cannot find where the pay slip is relevant to his case or any of his claims. The claimant mentioned the pay slip only in cross examination. Having not been pleaded and being not relevant to the case of the claimant, I find that the document is inadmissible. The pay slip for October 2020, marked as Exhibit C11, is according rejected and expunged from evidence.

 

In issue 2 of the final written address of the claimants, objection was raised to the admissibility of the documents admitted as Exhibits D6, D7[a] and [b], D8[a] and [b] and D10. The argument is that Exhibits D7[a] and [b], D8[a] and [b] and D10 were made when this suit was pending while Exhibit D6 was not tendered from proper custody. I will address this objection briefly.

 

Exhibit D6 are photocopies of receipts from National Hospital Abuja. The name of the patient on the receipts is Francis Destiny. This is the same person the defendants alleged forged receipts and these receipts are samples of the receipts that were forged. I agree with counsel for the claimant that the proper person to tender the document is the maker. In my view however, the fact that the document was not tendered by the maker or from proper custody does not affect its admissibility. It only goes to the weight which this court can place on the document. Therefore, the objection to the admissibility of Exhibit D6 is overruled.

 

Exhibit D7[a] is a letter dated 17th February 2022 written by the defendants to National Hospital Abuja but received on 19th January 2022 and D7[b] is a letter dated 21 January 2022 written by the National Hospital Abuja to the defendants. Also Exhibit D8[a] is a letter dated 17th February 2022 written by the defendants to Garki Hospital Abuja but received on 19th January 2022 and Exhibit D8[b] is the reply of Garki Hospital letter dated 21st January 2022. Although Exhibits D7a and D8a were dated 17th February 2022, the date they were received was 19th January 2022. Obviously, the date the letters were written cannot post date the date they were received by the recipients. The implication is that the letters were written before the date they were received. The letters were obviously written before or on 19th January 2022.

 

This suit was filed on 1st February 2022. Clearly, the documents were made while these proceedings were pending. The defendants are parties interested in this case and the documents were meant to establish a fact which the defendants assert in this case. In view of the provisions of section 83[3] of the Evidence Act 2011, these documents are not admissible. I find merit in the objection to the admissibility of Exhibits D7[a] and [b] and D8[a] and [b]. There is also Exhibit D10 dated 8th February 2022. It is a report to the 1st defendant signed by Mr. Paul Damodu, Mr. Johnson Ugwu, Mr. James Onuh and Mr. Isiaka Nuhu, all staff of the 1st defendant. Mr. Paul Damodu testified on behalf of the defendants as DW3 in this suit. I also find the documents to have been made while these proceedings were pending, and by parties interested in the case. The document is also meant to establish a fact which the defendants assert in this case. Consequently, the document is not admissible by the effect of Section 83[3] of the Evidence Act 2011. The documents marked Exhibits D7[a] and [b], D8[a] and [b] and D10 are rejected and expunged from evidence.

 

In the first issue argued in the final address of the claimant, it was contended that the statement of defence filed by the defendants is unsigned by counsel for the defendants and also undated. Counsel for the claimant submitted that the statement of defence is not a competent process in these proceedings, and urged this court to strike it out. I have considered the submissions by counsel for the defendants on this point in the reply address.

 

I have examined the statement of defence and counter claim, which is in the record of this suit, as filed by the defendants on 18th May 2022. Pages 1 to 10 contain the statement of defence while the counter claim is from pages 11 concluding in page 15. Page 11 contains the heading of the court, suit number, names of parties and title of the counter claim. This shows that the counterclaim was filed as a separate process from the statement of defence. Contrary to the arguments of learned counsel for the defendants, the statement of defence and the counter claim are not in a single process. The processes are separate. At the end of the counter claim, I can see it is dated 18th May 2022 and after it, there is a signature and names of counsels for the counter claimants and the address of the law office.

 

Now, the statement of defence, as a separate process from the counter claim, ended at page 10. From the entire gamut of the process, it is not dated anywhere neither did it contain the name of the defendants or that of a legal practitioner who filed it. There is also no signature of any person anywhere on the process. Without a doubt, the statement of defence filed by the defendants is not dated and not signed. The Rules of this court clearly provides in Order 30 Rule 3(3) that pleadings shall be signed by a Legal Practitioner or by a party where such party sues or defends in person. The statement of defence is a pleading and being a court process on its own and separate from the counter claim and other processes filed along with the statement of defence, the statement of defence must be and ought to be dated and signed by the person or legal practitioner filing same.

 

The effect of an undated and unsigned pleading or court process is as counsel for the claimant has submitted with the support of judicial authorities. Such a process is incompetent, worthless, void and cannot be considered by the court in the determination of the suit. See JINMI vs. GBEPA [2017] LPELR-43501[CA]; EZENWA vs. K.S.H.S.M.B. [2011] 9 NWLR Pt. 1251] 89 at 131.

 

Counsel for the defendants referred to the provisions of Order 5 of the Rules to submit that the issue of non-signing of the statement of defence raised by the claimant borders on irregularity which ought to have been raised timeously by the claimant. I do not agree with these arguments of the learned counsel for the defendants. Failure to sign a pleading or court process goes beyond a matter of irregularity which Order 5 of the Rules can be invoked to cure. It is a fundamental defect not to have signed a court process. A court process which is not signed is not competent before the court and as such, the court does not have jurisdiction to countenance such process. See OROK vs. ETA [2021] 12 NWLR [Pt. 1790] 350 at 375; MAINASARA vs. F.B.N. PLC [2022] 6 NWLR [Pt. 1827] 465 at 497. Even though the claimant filed a reply to the statement of defence or took steps in respect of the unsigned statement of defence, the steps taken by the claimant cannot cure or validate an unsigned process or pleading.

 

I find the statement of defence filed by the defendants incompetent having not been dated and signed by either the defendants or their counsel. The statement of defence is accordingly struck out. The effect of this order is that the evidence adduced by the witnesses for the defendants on the facts in the struck-out statement of defence no longer have factual basis. Such evidence now goes to no issue.

 

The claimant filed a reply to the defendants’ statement of defence on 20th June 2022 wherein he included a defence to the counter claim of the defendants. In the reply, the claimant made additional claim against the defendants. The sole claim is for:

AN ORDER of this honourable Court mandating the Defendants jointly and severally to pay the Claimant his outstanding United Capital Asset Management Fund otherwise known as Staff Providence Fund in the sum of N290,259.02 (Two Hundred and Ninety Thousand, Two Hundred and Fifty-Nine Naira, Two kobo) only.

 

In his additional evidence, the claimant testified in respect of this claim when he said after this suit was filed, the 1st Defendant liquidated his Staff Providence Funds contribution of N1,104,962.26 with United Capital Asset Management. As provided in the pay slip, the employer contribution is N407,351.62 and the Employee Contributes the same amount of N407, 351.62. After the said deduction, the outstanding balance is paid into the employee's account. The claimant said the outstanding balance of N290,259.02 has not been paid to him.

 

A reply is not a process through which reliefs are sought in a suit. By the Rules of this court, the reliefs a claimant seeks in an action filed in this court is sought in the originating process or in the statement of facts or in a counter claim by a defendant counter claiming. By the Rules, a reply is only to contain facts in reply to the averments in a statement of defence. It is not a process by which a claimant can seek claims against a defendant. In my view, the claim in the claimant’s reply to statement of defence is not a competent claim before this court and cannot be considered in this case. The claimant, if he wanted the claim to be considered, ought to have amended his Complaint or statement of facts to bring in the claim so that issues can be properly joined on the claim by the defendants. In the circumstance, the claim sought by the claimant in paragraph 18 of the reply to statement defence is not competent and it is hereby struck out.

 

In any event, in view of the striking out of the statement of defence of the defendants, the claimant’s reply to the statement of defence becomes irrelevant and will accordingly be discountenanced.

 

I will now determine the claims of the parties in this suit.

 

The issues which are, in my view, to be determined in this judgment are these:

1.                  Whether the claimant has proved his case to be entitled to the reliefs he sought in the suit.

2.                  Whether the defendants have proved the counter-claim and entitled to the claims sought against the claimant.

 

ISSUE 1:

In relief 1, the claimant sought a declaration that his removal from the employment of the 1st Defendant by the Defendants was malicious, unjust and wrongful. The claimant also sought payment of general damages for his wrongful removal in relief 7 of his claims. In his evidence, the claimant said he was employed by the 1st Defendant on 1st April 2014 and he rose to the position of Senior Human Resource Officer in the 1st defendant. He worked for the 1st defendant until on 22nd October 2021 when the 2nd defendant and Simon Kattah connived to remove him from office by presenting a Redundancy Letter dated 25th October 2021 to him informing him of the decline in the activities of the company. The claimant’s employment letter is Exhibit C1 while the notice of redundancy is Exhibit C3.

 

In the evidence of DW1, he told the court that the claimant was an employee of the 1st defendant until 22nd October 2021 when the claimant was issued a redundancy notice after he was found extorting money from some security staff. This evidence of DW1 was pleaded in the counter claim. From the evidence of the parties, it is not in dispute that the claimant’s employment was terminated by the 1st defendant when he was issued a redundancy notice. The notice of redundancy addressed to the claimant is dated 25th October 2021 and signed by the 2nd defendant. The claimant was informed in the first and second paragraphs of the letter thus:

“We regret to inform you that due to decline in activities of the company, your position will become redundant with effect from October 22nd 2021.

 

You are therefore advised to hand over all company properties in your possession to the Human Resources Department on the due date.”

 

Now, by the terms of the claim sought in relief 1, the claimant is clearly making a case in wrongful termination of his employment. In an employment of master and servant, being the nature of the claimant’s employment with the 1st defendant, it is implied that either party can terminate the employment at any time, whether with notice or not. But an employee who complains that the termination was wrongful has the duty to prove how the termination was wrongful. It is now settled law that in employment cases where an employee complains of wrongful termination of employment, the duty placed by law on such employee in order to succeed in the claim is to plead and prove the terms of his contract of employment, explain how the employment can be terminated under the condition of service and the manner the terms of the contract were breached by the employer when his employment was terminated. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. It is a fundamental requirement that an employee who complains of wrongful termination of employment must found his case on the terms and condition of service which must be pleaded and proved. In W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512, it was held that an employee who brings a case for wrongful termination or dismissal, must, in order to succeed, plead and prove the following essential particulars:

i.                    The terms and conditions of his appointment;

ii.                 The circumstances under which his appointment can be terminated or dismissed under the condition of service;

iii.               The procedure stipulated in the condition of service for termination of the employment or dismissal and the manner in which the termination or dismissal breached the said terms and conditions of his appointment.

 

Let me also emphasize that declaratory reliefs, as sought by the claimant in relief 1, are not granted as a matter of course. Such claims are granted only on adequate pleading of the facts and credible proof of the claim. See SULE vs. HABU [2012] All FWLR [Pt.643] 1910; YUSUF vs. MASHI [2017] All FWLR [Pt.912] 664. Therefore, the fact that the defendants are deemed not have filed a statement of defence to the suit of the claimant does not entitle him to automatic success. The claimant must prove the declaration he sought as required by law. Accordingly, before this court can make the declaration sought by the claimant in relief 1, the claimant must have proved the terms and conditions regulating his employment and the violation of the said terms and conditions before the declaration he sought can be made.

 

In this case, the facts pleaded and evidence adduced by the claimant with respect to the termination of his employment is that on several occasions, the 2nd defendant made attempts to remove him from the company but without success. When the 2nd defendant retired officially from the service of the 1st defendant on 30th June 2021, the claimant was promoted to the position of Head of Human Resource of the 1st defendant. But the 2nd defendant kept on coming to the office and was pleading with the Managing Director to let him stay till the end of 2021. Although no official document was issued to the 2nd defendant, he continued to use his office. On 22nd October 2021, the 2nd defendant and Simon Kattah connived to remove the claimant from office by giving the claimant a redundancy notice. He further stated that all the procedure adopted by the Defendants in the process leading to his removal were wrong, malicious, null and void and of no effect whatsoever. This is all that the claimant pleaded or said with respect to the termination of his employment.

 

Other than his employment letter which he tendered in evidence, the claimant did not refer to or mention the condition of service which regulated his employment with the defendant or which stipulates the terms for termination of the employment. He also did not plead or state in his evidence that the termination of his employment was done in breach of any term of his employment. The claimant’s employment letter, Exhibit C1, provided for the manner the employment can be terminated by either party but the claimant did not make any case of a breach of that term of the employment. Again, although the claimant averred that all the procedure adopted by the defendants in the process leading to his removal were wrong, the claimant failed to plead or narrate in his evidence what the procedure adopted in his removal was and what made the procedure to be wrong.

 

From the notice of redundancy issued to the claimant, the claimant was relieved of his employment on ground of redundancy. One would expect the claimant, who is complaining of the termination of his employment, to attack the redundancy claim and show that the termination based on redundancy was wrong but he did not. He rather appeared to claim that the 2nd defendant and Simon Kattah maliciously connived to remove him from office, an allegation I find the claimant unable to establish.

 

The claimant also said something about the retirement of the 2nd defendant from the employment of the 1st defendant at the time of his removal. This allegation appears to create the impression that the 2nd defendant’s involvement in the removal of the claimant was ultra vires and affects the removal. The claimant said the 2nd defendant retired officially from the service of the 1st defendant on 30th June 2021 but I also find from his evidence that the 2nd defendant was still serving in the 1st defendant as at the date the claimant was issued the redundancy notice, which was signed by the 2nd defendant for the 1st defendant. In cross examination, DW1 said he retired from the 1st defendant on 30th June 2021 but he was retained after his retirement and before the claimant was removed. He referred to Exhibit D1 as his service agreement. I have seen Exhibit D1 being a consultancy service agreement dated 1st July 2021. The 2nd defendant represented the 2nd party as the consultant. It is clear to me that the 2nd defendant, at the time of the issuance of notice of redundancy to the claimant, was serving with the 1st defendant as a consultant. I cannot therefore fault the removal of the claimant by the involvement of the 2nd defendant in the removal.

 

Having reviewed the pleading and evidence of the claimant, I find that the claimant did not plead or prove any fact to show that his removal from the employment was done in violation the terms and conditions of his employment. He did not also challenge his removal on ground of redundancy. In the result, the claimant failed to prove that his removal from the employment of the 1st Defendant was malicious or unjust or wrongful. The declaration he sought in relief 1 has not been proved and it fails accordingly.

 

In relief 2, the claimant sought a declaration that the refusal of the Defendants to pay his appropriate, commensurate and complete benefits and entitlements after removal from the 1st Defendant is unlawful and in relief 4, he sought an order mandating the Defendants to pay him his benefits and entitlements in the sum of N1,453,482.19. In his evidence, the claimant said after he was issued the redundancy notice, the 1st defendant prepared his redundancy benefit in the sum of N1,281,038.07 and he was issued a pay slip for the sum. He said this amount he was to be paid as his benefit does not reflect the accurate entitlement due to him. He said his entitlement should be the sum of N1,453,482.19. In paragraph 15 of the statement of facts and in Paragraph 14 of his evidence, the claimant did a table of his entitlements, computed same and arrived at the sum of N1,453,482.19 as his benefits, after deductions. The claimant also said in his evidence that after waiting for a while without the 1st defendant paying his benefits and despite repeated demands, his lawyers wrote a demand letter dated 13th December 2021 to the 1st defendant. In the defendants reply dated 15th December 2021, the defendants said the reason why the claimant has not been paid his redundancy benefits is because the claimant was under investigation for fraud. The defendants also wrote another letter dated 17th December 2021 expressing willingness to pay the claimant’s entitlements but less the sum of N702,149.50 which is to be connected to the invoices undergoing investigation. The claimant also said in his evidence that on 24th December 2021, he received the sum of N579,000.00 from the Defendants, which is against the calculated sum.

 

The facts in support of the above evidence of the claimant were pleaded in paragraphs 14, 15, 17, 18, 19 and 21 of the statement of facts. The defendants have no statement of defence to traverse these averments of the claimant. The implication is that the averments of the claimant in paragraphs 14, 15, 17, 18, 19 and 21 of the statement of facts have not been denied, implying an admission of the facts. By implication also, the evidence adduced by the witnesses for the defendants with respect to the non-payment of the claimant’s redundancy benefits become inconsequential.

 

In the notice of redundancy issued to the claimant, he was informed in paragraph 3 of the letter that his redundancy benefits will be paid on presentation of his clearance certificate to the HR Department. By this content of the letter, the defendants have confirmed that the claimant was entitled to redundancy benefit. According to the claimant, the amount the defendants wanted to pay him as his redundancy benefit is the sum of N1,281,038.07 but he now contends that the amount he is entitled to be paid is the sum of N1,453,482.19. The claimant explained in details in his pleading and statement of facts how he arrived at the sum of N1,453,482.19 as his redundancy/terminal benefit. In cross examination, DW1 told the court that the claimant’s redundancy/terminal benefit, which was the sum of N1,453,482.19, was processed and communicated to him but the claimant was not paid because of an ongoing investigation. DW1 also said the claimant was paid an amount less than the amount involved in the fraud. By his evidence in cross examination, DW1 has confirmed the claimant’s averment that his redundancy or terminal benefit ought to be the sum of N1,453,482.19. DW1 also confirmed that the claimant has not been paid all his benefits. Accordingly, I find that the claimant has proved that the sum of N1,453,482.19 is the sum to be paid to him as his terminal benefit by the defendants.

 

The claimant told the court in his evidence that after the exchanges of the letters dated 13th December 2021, 15th December 2021 and 17th December 2021 between the defendants and his solicitor, he was eventually paid the sum of N579,000 by the defendants on 24th December 2021. This payment was before the claimant instituted this suit. That is to say from the sum of N1,453,482.19 the claimant claims to be his terminal benefits, he had been paid the sum of N579,000 by the defendants. The claimant cannot therefore continue to claim the entire sum of N1,453,482.19, he said is his due entitlements, in this suit without taking the payment he had received from the sum into consideration. Having been paid the sum of N579,000, the balance of the amount of his terminal benefit is the sum of N863,482.19

 

Now, was there a justification for not paying the claimant his complete benefits? According to the claimant, in a letter dated 15th December 2021 by the 2nd defendant, the defendants stated that the reason why the claimant has not been paid his benefits is because the claimant was under investigation for fraud pertaining to falsified invoices found on the claimant’s computer months after the claimant was laid off and had handed over the Company's properties in his possession to the 1st defendant. The letter is Exhibit C8. In the letter, the defendants said the claimant has not been paid his benefits because he has not been issued clearance certificate, and the reason he was not issued clearance certificate is that he was under investigation for fraud as there were evidence of falsification of hospital invoices on the claimant’s computer to defraud the company. The defendants also said the claimant will be paid if after the investigation he is not found guilty. This was the reason given by the defendants for withholding payment of the claimant’s terminal benefits.

 

The claimant had been terminated before the alleged fraudulent falsification of hospital invoices was discovered. At the time of the discovery, the claimant was no longer subject to the defendants’ investigative privileges or disciplinary powers. In that situation, only an external investigative body could properly inquire into the allegation. By the content of Exhibit C8, the defendants were conducting the investigation personally without the involvement of the claimant who was being investigated. Again, the alleged fraud constitutes a criminal offence but the defendants failed to show to the court that the claimant was reported to the police or prosecuted and convicted for the offence. The defendants simply went ahead to exercise control over the claimant’s benefits, which in my view, amounts to punishment for a criminal act the claimant has not been proved in a court of law to have committed. The withholding of payment of the claimant’s benefits simply on suspicion of committing a crime, which was not subjected to criminal prosecution and proof, was clearly not justified.

 

Accordingly, I hold that the refusal of the Defendants to pay the Claimant his complete benefits and entitlements after the termination of his employment was wrongful. I also hold that the claimant is entitled to the balance of his benefits in the sum of N863,482.19, having earlier been paid the sum of N579,000 from the total benefits of N1,453,482.19.

 

The claimant claims for both pre-judgment and post judgment interest on the sum of his outstanding benefit in reliefs 5 and 6. In view of the fact that the defendants withheld the claimant’s terminal benefits since October 2021, when his employment was terminated without any justifiable reason, I am inclined to use my discretion to grant him both pre-judgment and post judgment interest on the sum of his outstanding benefit. Accordingly, reliefs 5 and 6 succeed.

 

In relief 3, the claimant sought a declaration that the allegation of fraud and forgery made against him by the defendants in the letters of 15th December 2021 and 17th December 2021 is false, unfounded and constitute defamation of his reputation. In relief 7, the claimant sought general, punitive and exemplary damages for the defamation of his reputation. In the statement of facts, the claimant pleaded in paragraphs 19, 20, 21, 22 and 23 that the allegations of fraud and forgery made against him by the defendants in the letters dated 15th December 2021 and 17th December 2021 are false and maliciously conceived to discredit him. He averred that the unfounded allegation is defamatory, impinged his reputation and maliciously calculated to expose him to public contempt, odium, ridicule and to lower him in the estimation of right-thinking members of the society.

 

Going by the claims in reliefs 3 and 7 and the averments of the claimant set out above, this aspect of the case of the claimant is purely a claim in defamation which is a claim under the common law of tort. The jurisdiction of this court is spelt out in Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The causes or subject matters which this court can entertain are set out exhaustively in the section but it does not include actions in tort of defamation. This court has expressed the view in several decisions that its jurisdiction does not extend to causes in torts. In ECOBANK (NIG). LTD vs. IDRIS (2021) LPELR-52806[CA], the Court of Appeal held that the subject matter jurisdiction of this court, as spelt out in Section 254C[1], [2] and [3] of the 1999 Constitution, cases or matters which border on tort of defamation is not one of the items. The court further held that the fact that the tortuous action happened in the course of the employment cannot be used to expand the jurisdiction of the court beyond its jurisdictional scope in Section 254C[1], [2] and [3] of the 1999 Constitution. See also AKPAN vs. UNIVERSITY OF CALABAR (2016) LPELR-41242[CA]. It is my view that the aspect of the claimant’s claims bordering on defamation cannot be entertained by this court. Consequently, the claimant’s reliefs 3 and 7 are hereby struck out.

 

The claimant claims the sum of N5,000,000 as cost of litigation in relief 8 but he has failed to prove how the sum of N5,000,000 accrued as cost of litigation. This claim fails.

 

Having considered all the claims of the claimant, I find that he succeeded in proving only reliefs 2 and 4. I also find him entitled to interest claimed in reliefs 5 and 6. In the result, while reliefs 1 and 8 are dismissed, reliefs 3 and 7 are struck out. Reliefs 2, 4, 5 and 6 are granted in these terms:

1.   It is declared that the refusal of the Defendants to pay the Claimant his appropriate, commensurate and complete benefits and entitlements after the termination of his employment is wrongful.

2.   The defendants are ordered to pay the sum of N863,482.19 to the claimant, being the balance of his terminal or redundancy benefits.

3.   The defendants shall pay interest on this sum at the rate of 20% per annum from December 2021, when the part payment was made, to today. 

4.   The sum in order 2 above shall be paid within 30 days from today to the claimant after which, if not fully paid, it shall attract 10% interest per annum thereafter until same is fully paid to the claimant.

 

ISSUE 2:

I have earlier set out the reliefs sought by the defendants/counter claimants in their counter claim. For the purpose of considering the claims, I will repeat them here. The claims are as follows:

1.      A declaration that the Defendant's acts of extorting money from the Counter claimant's security officers and obtaining requisitions from the Counter claimant based on fabricated medical expenses constitutes gross abuse and are unethical, condemnable and grossly unprofessional.

2,         An Order mandating the Defendant to pay the sum of N702,149.50 to the Counterclaimant, being the accumulated sums fraudulently obtained by the Defendant by his acts of misrepresentation and fabrication of medical expenses.

3.         Interest on the judgment sum at the rate of 10% from the date of judgment until the entire judgment sum is paid.

4.         Cost of this action on a full indemnity basis including but not limited to the sum of N5,000,000 incurred by the Counterclaimant as cost of engaging counsel to represent it in these proceedings and its out-of-pocket expenses.

 

The facts pleaded in the counter claim in respect of these reliefs are that the defendant to counter claim was extorting money from four security staff under the pretence that he will help secure their jobs from redundancy. Following a disciplinary hearing on 22nd October 2021, the defendant to counter claim was issued a redundancy notice. Upon the termination of the employment of the defendant to counter claim, the 1st counter claimant started an investigation into some forged hospital receipts involving one of its staff, Mr. Francis Destiny, who was suspected to have obtained funds from the counter claimant based on forged receipts. At the disciplinary interview of Mr. Francis Destiny, he stated that the receipts in question were organized by the defendant to counter claim, who at that time had been made redundant. The counter claimants immediately launched an investigation into hospital receipts resembling those presented by Mr. Francis Destiny and traceable to the defendant to counter claim.

 

The findings reveal that the defendant to counter claim had requisitioned and obtained reimbursement of the following sums from the 1st counter claimant: N51,850.00 and N439,504.50 as expenses incurred for medical services at Garki Hospital Abuja; N112,580.00 and N98,215 as expenses incurred for medical service at National Hospital Abuja. The 1st counter claimant wrote to both Garki Hospital Abuja and National Hospital Abuja to confirm the expenses. In response, Garki Hospital Abuja confirmed that the defendant to counter claim dependants accessed health care at the hospital and he was charged only N118,260.00 because 80% of the medical bills were covered by the defendant to counter claim spouse’s health insurance. But the defendant to counter claim requisitioned and obtained the total sum of N491,354.50 from the counter claimant. The National Hospital Abuja also responded and confirmed that the claims were fake when it observed that the patients reference numbers stated by the defendant to counter claim belonged to some other patients and not the defendant to counter claim’s spouse, and that, any information or document outside those details did not emanate from the hospital. Flowing from the above facts, the counter claimants averred that the defendant to counter claim has caused them loss to the tune of N702,149.50 being the total sum paid to the defendant to counter claim based on the falsified requisitions for medical expenses. It was also averred that the defendant to counter claim fraudulently obtained this sum. DW1, DW2 and DW3 testified in line with these pleaded facts.

 

Although the counter claimants alleged that the act of the defendant to counterclaim in extorting security staff of the 1st counter claimant was the reason for the termination of his employment, the notice of redundancy by which the employment of the defendant to counter claim was terminated contains no such allegation. It is therefore clear to me that the allegation of extortion of staff was not in existence at the time of the termination of the employment of the defendant to counter claim and it was not the reason for his termination. The implication is that the allegation of extortion arose after the employment of the defendant to counter claim had been terminated. This fact casts doubt on the case of the counter claimants with respect to the allegation of extortion made against the claimant.

 

In the claims in reliefs 1 and 2 of the counter claim and in the averments in the counter claim, as well as in the evidence of the witnesses, the counter claimants have made allegations of extortion, fraud, misrepresentation and forgery against the defendant to counter claim. These allegations are criminal offences and the defendant to counter claim was suspected to have committed the offences after he was no longer in the employment. There is no evidence to show that the defendant to counter claim was at any time, since the discovery of the offences, reported to law enforcement agencies or arrested or have been charged to court for prosecution. What the counter claimants now wants this court to do, going by the claims made in reliefs 1 and 2 in the counter claim, is for this court to try the criminal allegations made against the defendant to counter claim in this suit. Also, the declaration or pronouncement which this court has been called to make in reliefs 1 and 2 is tantamount to convicting the defendant to counter claim for the alleged offences.

 

The counter claim is not a criminal charge properly filed before this court. When the counter claimants believed that the defendant to counter claim had committed such grievous offences as extortion, fraud and forgery since the year 2021, they ought to have initiated a criminal case against him for his prosecution. They didn’t do so. It was when the claimant decided to institute a suit to seek redress for his denied benefits that the defendants too thought of raising the allegations of extortion, fraud and forgery against him. This court does not have the vires to try or examine the allegations of extortion, fraud, misrepresentation and forgery in these proceedings, as the counter claim, particularly reliefs 1 and 2, is not a competent criminal charge brought against the defendant to counter claim before this court.

 

Let me add that by the quality of evidence adduced by the witnesses for the counter claimants, the counter claimants have not proved to the satisfaction of the court that the defendant to counter claim was the one who incurred the sum of N702,149.50 which the counter claimants want him to pay in relief 2. The averments and the evidence in respect thereof, qualified, in my view, as assumptions. I should also mention that DW1 confirmed in cross examination that he approved the requisitions made by the defendant to counter claim which the counter claimants are now alleging were forged. He said there is a procedure for reclaiming expenses from the company and if there is a claim for medical expenses, it first goes through the head nurse, thereafter, it goes to the cost controller, then to the head of the person's department and lastly to the account or cashier for payment. DW1 identified his signatures in Exhibits D4[a] and D4[e] and said he approved them. He confirmed that being the claimant's head of department, he approved the claimant's requisitions after the nurse and the cost controller had validated them. He also told the court that these are the same documents he is telling the court was forged. It is clear to me that the claims or requisitions which the claimant was alleged to have fraudulently obtained was validated and authenticated by DW1 before payment to the claimant. By the evidence of DW1, I do not find merit in the claim of the counter claimants for the sum of N702,149.50 which the defendant to the counter claim was alleged to have fraudulently obtained by fabricating medical receipts.

 

The counter claimants also claim the sum of N5,000,000, which they allegedly incurred as cost of engaging counsel to represent them in these proceedings and out-of-pocket expenses. Without wasting time on this claim, I hold that the counter claimants are not entitled to this claim. Besides not proving the claim, they have not succeeded in the counter claim. Thus, there is no reason to grant the claim for recovery of legal expenses.

 

In the result, I resolve issue 2 against the counter claimants. The counter claim lacks merit and it is accordingly dismissed. Cost of N200,000 is awarded in favour of the claimant/defendant to counter claim.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge