WD
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M.
BASHIR.
Dated: 2nd
day of May, 2024 SUIT NO: NICN/PHC/123/2022
BETWEEN:
MISS TONYE
BRIGGS---------------------------------CLAIMANT
AND
1. MRS.
UCHENNA EZE
(C.E.O OF
EUI CENTRE LIMITED)
2. EUI
CENTRE LIMITED
3. MS.
ANAESTHESIA ARISA
(ADMINISTRATIVE
MANAGER OF
EUI CENTRE
LIMITED)
4. MS.
VIVIENNE
(STAFF OF
EUI CENTRE LIMITED)--------------------DEFENDANTS
Representations:
Boma N.T Briggs with S.S. Idogun for the Claimant.
M.I. Onah with O.C. Udensi for the Defendant.
Judgment.
This
suit was commenced by way of a General Form of Complaint filed on the 13th
of September, 2022 along with a verifying affidavit, statement of fact, list of
witnesses, witness statement on oath, list of documents and copies of the
listed documents to be relied upon at trial.
Arising
from the Complaint and Statement of fact, the Claimant’s claims against the
Defendants are:
1. A DECLARATION that the purported termination of the appointment
of the Claimant by the Defendants by an undated Letter placed on her desk about
8pm on the 18th day of July 2022 is null, void and of no effect
whatsoever.
2. AN ORDER SETTING ASIDE the undated purported Letter of Termination placed
on the desk of the Claimant about 8pm on Monday the 18th of July
2022 to take effect on same day.
3. AN ORDER directing the Defendants to pay the Claimant her
Salary for the Month of July 2022 and continuously until the determination of
this suit.
4. AN ORDER directing the Defendants to immediately withdraw
both the undated Letter of Warning placed on her desk about 8pm on Sunday, the
17th of July 2022 and the undated Letter of Termination also dropped
on her desk about 8pm on Monday the 18th day of July 2022.
5. THE SUM OF N10,000,000.00 (TEN MILLION NAIRA) as General
Damages for wrongful termination of the appointment of the Claimant and the
trauma /distress etc.. she suffered after the receipt of the voice message from
the 4th Defendant acting on behalf of the 1st Defendant
Reacting
to the complaint and statement of facts, the Defendants on the 26th
of September, 2022 filed a statement of defence along with witness statement on
oath, list of witnesses, list of documents and copies of the said documents. In
the same vein, the 2nd Defendant presented a counter-claim.
Accordingly,
the Claimant on the 11th of October, 2022 filed a reply to the
Defendants' statement of defence and a defence to the 2nd
Defendant's counter claim. The 2nd Defendant in turn, filed a reply
to the defence on the 21st of October, 2022.
Trial
commenced on the 30th of May, 2023 and the Claimant in opening her
case was herself called as the sole witness as CW1 upon which she adopted her
witness statements on oath marked as C1. Through the said CW1, 10 documents
were tendered in evidence and admitted as Exhibits C2 – C11 with exhibits C6,
C9 and C10 being admitted under protest. .
Arising
from the complaint and statement of fact, the case of the Claimant is that she diligently
served the Defendants and as a result of her sterling performances, she was
promoted to the Position of Head/Human Resources/Social Media / PA to the 1st
and 2nd Defendants. She averred that the moment the 1st Defendant
brought a Consultant from Lagos to train the Staff/Workers of the 2nd
Defendant, she became an object of concerted and pre-determined attacks in order
to frustrate her out of her job. Claimant averred that she was eventually
served with a warning letter on the 17th of July, 2022 and a letter
of termination on the 18th July, 2022.
Upon cross examination, CW1 admitted that she was
issued with an employee handbook which she read and understood while
maintaining that the total amount indicated as breakdown of expenses as
outlined in paragraph 10 of the additional statement on oath is N10, 000, 000.
She equally admitted receiving N2million to be applied as Salary but it is
incorrect that the cumulative salary was N1.9million because she was instructed
by the boss via whatsapp to double everyone's salary. CW1 also admitted that
she disbursed salary through her personal account. CW1 also confirmed that the
1st Defendant did not ask for explanation on how funds were spent upon return
and insisted that it is false to state that it was the outcry for unpaid
salaries that prompted investigations while stating that all funds were
appropriated according to instructions. She further averred that it is not all
staff that get double salary. CW1 stated that she was stripped of everything
belonging to the Defendant and taken out of the facility.
Upon discharge of CW1, Claimant closed her case
while the Defendants opened theirs by calling one witness in person of Vivienne
Oku James as DW1 who adopted her witness statement on oath which was marked as
D1. Through DW1, 8 documents were tendered and admitted in evidence as Exhibits
D2 to D9 respectively.
Arising from the statement of defence, the case of
the Defendant is that while the Claimant was employed as a front desk/social
media influencer of the 2nd Defendant effective from February 1, 2021 via an
employment letter dated January 29, 2021. The Defendant averred further that so soon after the review of the Claimant`s employment, the
Claimant became arrogant, callous and power drunk and started exhibiting series
of unethical conducts and acts inimical to the core values of the 2nd
Defendant. The Defendant stated that when the 1st Defendant travelled out of
the country in December 2021, some sums of monies were paid into the Claimant's
account for official disbursements including salaries but when the 1st
Defendant returned in February, 2022, the 1st Defendant was faced with
complaints of non-payment of salaries which led to investigation and discovery
of financial fraud by the Claimant which led to the termination of her
employment.
Upon cross
examination of DW1, she posited that she is the 4th Defendant and
admitted that after the termination of the Claimant’s employment, she sent a
message to return the iphone. DW1 admitted that she said the Claimant stole the
phone because after the phone was given to her to transfer information
contained therein, she said she has to take it to Garrison but she never
returned with it but instead, she gave DW1 the old iPhone 7. DW1 also stated that
the dates in relation to the phone was mixed up but the Claimant started
stealing after her promotion while also positing that she can't remember the
date the warning letter was issued and also admitted that the exhibit D9 is
undated, signed by the 3rd Defendant and issued on the 18th of July 2022 to the
Claimant. DW1 added that the 3rd Defendant and herself stripped the Claimant of
the 2nd Defendant's properties while admitting that the 1st Defendant brings
gifts for people when she travels.
Upon the discharge of DW1, matter was adjourned for adoption of
Final Written address and arising from the Defendants' final address filed on
the 9th of August, 2023, counsel to the Defendants, M.I. Onah Esq.,
formulated five issues for determination to wit:
(1) Whether from the
facts and circumstances of the case the termination of the Claimant’s
employment by the 2nd Defendant is valid.
(2) Whether the Claimant
is entitled to her claims as formulated in the originating processes i.e.
complaint and statement of facts considering the evidence presented by the
parties in this case.
(3) Whether having
regards to the facts of this case, the joinder of the 1st, 3rd and 4th
Defendants in this suit is not wrongful and improper.
(4) Whether this
Honourable Court can rely on pieces of evidence that do not pass the test of
admissibility in arriving at its decision in this suit.
(5) Whether the 2nd
Defendant Counter Claimant is entitled to the reliefs sought in its counter
claim.
In
arguing issue one, counsel posited that whenever an issue arises as to whether or not the
dismissal of an employee by his employer is proper, the court will have to
consider the term of contract between the employee and the employer as may be
embodied in their terms of contract or condition of service to determine whether or not the Defendant complied with
the terms between them before exercising its power of dismissal. Counsel cited
the case of Kabelmetal Nig. Ltd -vs-
Gabriel Ativie (2001) FWLR Pt. 66 P. 662 at 675.
Counsel
added that by the content of exhibit D3, which is the 2nd
Defendant/Counter Claimant’s Employee Handbook and which can be said to be the
terms of service between the Claimant and the 2nd Defendant/Counter
Claimant, the 2nd Defendant/Counter Claimant can exercise its power
of dismissal against any employee who is guilty of conducts prohibited by the 2nd
Defendant/Counter Claimant policy. Counsel referred to clause 20 at pages 23 to 25. Counsel also cited the cases of Yusuf Vs
U.B.N Ltd. (1996) 6 NWLR pt. 457 p. 632 at 648, Abomeli vs
N.R.C. (1995)1 NWLR pt. 372 p. 451 at 461. See also
Nwobosi -vs- A.C.B (1995)6 NWLR pt. 404 p. 658 at 685.
Counsel
argued that the misappropriation made by the Claimant in respect of the fund
transferred to her for running of the 2nd Defendant/Counter
Claimant’s business is enough to erode the confidence of the 2nd
Defendant in the Claimant and same qualifies as a misconduct that can be meted
out with instant termination of the Claimant’s employment.
Counsel
argued in the alternative that an employer has the unfettered right to
terminate the employment of an employee for whatever reason or for no reason howsoever.
Counsel cited the cases of Ayorinde vs Oyo State Government (2007) All FWLR pt.
356 p. 709 at 722 – 723; Isieveore vs NEPA (2002) FWLR pt. p. 398, Aforishe v
NGC Ltd (2018) 2 NWLR Part 1602 Page 35 at 61 para A-C, Obanye v Union Bank Plc
(2018) 17 NWLR Part 1648 page 375 at 389 para F-G.
Counsel
also contended that in the unlikely event that this Honourable Court holds that
notice is required before the employment of the Claimant can be determined, the
remedy available to the employee is the monetary compensation that should have
been paid in lieu of notice and such failure to give the required notice, no
other remedy or damages than what should have been paid in lieu of notice.
Counsel cited the case of Union Bank of
Nigeria vs Nwachukwu (2000) FWLR pt. 6 p. 986 at 994 and Ayorinde vs Oyo State Government (Supra) at 772.
In
arguing issue two, counsel submitted that relief C of the Claimant’s statement
of facts has no basis in law because the Claimant, having been dismissed from
the employment with the 2nd Defendant, she is not entitled to any
monetary or compensatory relief from the 2nd Defendant/Counter
Clamant.
Counsel
added that there is no iota of evidence presented by the Claimant in support of
relief C as formulated and nothing to justify how she came about the claim,
being that claim for specific and deemed liquidated sums of money are in form
of special damages that needed strict proof. Counsel cited the cases of A. S. E. S. A v. Ekwenem (2009) All FWLR pt.
491 pg. 838 @ 867 – 869 and Nzeribe
v Dave Engr. Co. Ltd. (1994)8 NWLR pt. 361 pg. 124 @ 140.
Counsel also posited that the Claimant
has not proffered any evidence before this court that she is entitled to
damages sought and that once an employer terminates the employment of the employee,
his claim for damages for termination of appointment becomes fallacious as she
is in effect saying she is still in employment by virtue of the claim and we
submit that will amount to court imposing an employee on an unwilling employer.
Counsel cited the case of WAEC vs Obisesan (2009) All FWLR pt. 484 p. 1619 at
1631.
In
arguing issue three, counsel submitted that it is a settled position of the law
that it is the cause of action as endorsed on the writ of summons that
determines proper parties before the court. Counsel cited the case of AG Federation v. AG Abia State & Ors
(2021) LPELR-24862 (SC).
Counsel
contended thereon that a critical analysis of the Claimant’s case shows that at
all material times, the Claimant was employed by the 2nd Defendant and
not the 1st, 3rd or 4th Defendant and from the
evidence of the Claimant and exhibit “C2”, the Claimant had no privity of
contract with the 1st, 3rd and 4th Defendants,
while it is also clear that the 1st, 3rd and 4th
Defendants in this suit were at the material times employees of the 2nd
Defendants/Counter Claimants, thus agents of a disclosed principal.
In
arguing issue four, counsel posited that it is of primary and critical
importance that a document used in litigation must not only be relevant, but
should also be admissible. Counsel in this regard cited the case of
Anyaebosi v. RT Brisco (Nig) Ltd (1987)
LPELR-506 (SC).
Counsel
argued further that exhibits C6, C9, and C10 are no doubt computer generated
evidence which requires certain foundation to be laid and certificate of
compliance with Section 84 of the Evidence Act, 2011 to be admissible in
evidence and the Claimant having failed to satisfy the requirement of the law
regarding same, the pieces of evidence are liable to be expunged from the
records of the court. Counsel cited the case of M.L Mande Ent. Ltd. v. The Registered Trustees of Seven Days
Adventist Church in Nig. & Ors (2022) LPELR-57435 (CA).
Counsel
added that the Claimant filed the instant suit which was served on the
Defendants in September 2022 without accompanying the complaint with exhibit C6
in line with Order 3 Rule 11 of the Rules of this Honourable Court hence same
should be expunged.
Counsel
also added that no foundation was laid for tendering Exhibit C11 and that the
fact that no objection was raised on the admissibility of Exhibit C11
(described as Bank Statement of account of the Claimant), does not prevent this
Honourable Court from expunging it from its record and not rely on it in this
matter. Counsel cited the case of Aminu & Ors. Vs. Hassan & Ors (Electronic Citation) LER
(2014) SC.44/2002.
In
arguing issue five, counsel posited that the law is that a counter claim is a
separate and independent action which has to be instituted in accordance with
the Rules of Court. Counsel added that the fate of a counter claim being an
independent action does not depend upon the outcome of the Plaintiff’s claim.
Counsel cited the case of Ogli Oko Memorial Farms & Anor v. NACB LTD (2008)
LPELR-2306 (SC) and Chollom v. Elder Gideon Efajemue Prospectus Ltd & Anor.
(2018) LPELR-47230 (CA).
Counsel
contended that the Claimant has not placed any material fact before this
Honorable Court to substantiate her position that the Iphone 11 Pro Max (2nd
Defendant/Counter Claimant’s customer care line) was gifted to her by the 1st
Defendant.
Counsel
also argued that Exhibit D8 prepared by the Claimant shows that of all the
monies the 1st Defendant transferred to the Claimant on behalf of
the 2nd Defendant for the running of the 2nd
Defendant/Counter Claimant’s business cumulatively amounting to the sum of N 10,472,100.00, the Claimant only spent
the sum of N 1,226,450.00 thereby
leaving the sum of N 9,245,650.00
unaccounted for.
Counsel
added that while the Claimant posited that she received the sum of N2,902,000.00 (Two Million, Nine Hundred
and Two Thousand Naira) on December 9, 2021 which she purportedly paid out as
the 2nd Defendant/ Counter Claimant`s staff salary on December 14,
2021, the totality of the salary purportedly paid out by the Claimant as the 2nd
Defendant/Counter Claimant`s staff salary on the said date as evident in
Exhibit C11 is the total sum of N2,040,000.00
(Two Million, Forty Thousand Naira), leaving an unaccounted balance of N862,000.00 while another sum of N200,000.00 (Two Hundred Thousand Naira) she received on December
7, 2021 was not completely accounted for.
Counsel
concluded by urging the court to dismiss the case of the Claimant in its
entirety with commensurate cost in favour of the Defendants while granting the
Counter Claim of the 2nd Defendant as prayed.
Reacting
to the address of the Defendant, Claimant filed her final address on the 28th
of August, 2023 and arising therefrom, counsel to the Claimant formulated four
issues for determination to wit:
i)
Whether the termination of the
appointment of the Claimant by the Defendants vide an undated Letter of
Termination was lawful and valid.
ii)
Whether the 2nd Defendant /
Counter Claimant have proved its case against the Claimant / Defendant to the
Counter Claim.
iii)
Whether this Honourable Court can
admit in evidence the Claimant’s electronically generated documents without a
certificate of compliance.
iv)
Whether the Claimant has proved her
case, to entitle her to be granted the reliefs she sought in this suit.
In arguing issue one, counsel submitted that
the Defendants through the 4th Defendant (DW1) admitted under Cross
Examination that Exhibits C4/D8 (the Letter of Warning) and C5/D9 (the Letter
of Termination) were undated. Counsel added that the said Exhibits C4/D8 and
C5/D9 are worthless (invalid) documents in their form as undated documents, and
thus have no probative value. Counsel cited the case of OLUWARANTI VS. SONOLA
& ANOR (2022) LPELR – 57839 (CA).
In arguing issue two, counsel
contended that the Defendants stated in their pleadings and in DW1’s Statement
on Oath that the Claimant stole and sold 2nd Defendant’s 1Phone in
March, 2021 and under Cross Examination, DW1 stated that she was employed and
started work in 2nd Defendant’s company in April. 1st
2021 while the same 1Phone DW1 claimed was given to her by the 1st
Defendant in February 2022 was the same phone stolen and sold in March 2021.
Counsel posited that this amounted to approbation and reprobation and that
Defendant are bound by their pleadings. Counsel cited the case of ACHONU VS.
OKUWOBI (2017) LPELR – 42102 (SC).
Counsel equally submitted that if the
commission of a crime by a party to any proceeding is directly in issue in any
proceeding Civil or Criminal, it must be proved beyond reasonable doubt and the
burden of proving that any person has been guilty of a crime or wrongful act is
on the person who asserts it.
In arguing issue three, counsel
submitted that where the person in the witness box is directly involved in the
operation of the computer, there will be no need for a production of a
certificate. Counsel relied on the case of BRILA ENERGY LTD VS. FRN (2018)
LPELR – 43926 (CA).
Counsel argued that Exhibits C9(a),
C9(b) and C10), were pleaded, listed and frontloaded as required by the Rules
of this Honourable Court and that the Documents contained communications
between the 1st Defendant and the Claimant concerning the
administration of the 2nd Defendant Company, whilst the 1st
Defendant travelled abroad.
With regards to Exhibit C6, counsel
posited that the Voice Recording of 4th Defendant (D.W.1) was
pleaded, the contents were already known and admitted by her during Cross
Examination and it was served on the Defendants’ Counsel before this Suit was
mentioned and trial commenced.
In arguing issue four, counsel posited
that the Claimant has proven beyond reasonable doubt that she is innocent of
the spurious allegations leveled against her by the Defendants. Counsel added
that the Claimant stated and restated that she was never given or served any
written query for any crime committed against the 2nd Defendant and
t hat every money transferred to her by the 1st Defendant, were
disbursed as instructed and that the IPhone was an unsolicited gift from the 1st
Defendant.
Counsel concluded by urging the court
to hold that the Claimant is entitled to Claims/Reliefs she is seeking from
this Honourable Court and all the ancillary claims made against the Defendants
and also to dismiss the 2nd Defendant’s Counter Claim with
substantial cost for lack of merit.
In
view of the foregoing, I have carefully evaluated and understood all the
processes filed by the parties in this suit. I have reviewed the testimonies of
the witnesses called by both parties, watched their demeanor and carefully
evaluated all the exhibits tendered and admitted. I have also taken into
account the submissions of learned Counsel to both parties in their respective
final written addresses.
Arising
from the totality of the issues raised and argued by the Learned Counsel in the
final written addresses for both parties, the issues for determination of this
suit by this court are to wit:
1.
Whether or not in view of the facts and evidence before this
court, the Claimant is entitled to the reliefs sought.
Before resolving the foregoing issue, it is imperative to foremost
resolve the status of Exhibits C6, C9 and C10 which were admitted under protest
while being tendered through CW1.
With regards to the said Exhibit C6, C9 and C10, Counsel to the
Defendant contended that the documents were not frontloaded in accordance with
the Rules of this Court and that foundation was not laid in accordance with
section 84 of the Evidence Act, 2011.
Counsel to the Claimant contended that the documents are relevant,
and were pleaded and frontloaded. Counsel added that Exhibit C6 was served on
the Defendant before this case was mentioned.
Bearing the foregoing in mind, I have taken a look at the exhibits
in question and find that Exhibit C6 is an audio CD, while Exhibit C9 and C10
are respectively SMS and WhatsApp chat. From the list of Documents filed before
this court, I find that document listed as no.5 is voice recorded message of 4th
Defendant while no.8 is SMS text Message sent by the 1st Defendant
to the Claimant’s counsel. Copies of these two documents were equally annexed
to the complaint, although the document tendered as number 8 on the list seem
different from that which was pleaded.
With regards to Exhibit C10, same was frontloaded alongside the
Claimant’s reply to the Defendant’s statement of defence arising from an
additional list of document filed on 11th October, 2022.
What the foregoing means is that from the records of this court,
the documents in question were duly pleaded and frontloaded. Even if there was
no frontloading, I must reiterate that the court has advocated against
rejection of document on the basis of same not being frontloaded. The court in
the case of OGBORU V. UDUAGHAN (2011) 2 NWLR 538
held that:
“…there is the liberal approach founded on a
consideration of the attainment of substantial justice. According to this
approach, the rejection of documents because they were not frontloaded would
occasion a miscarriage of justice.” PER
DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G).
That said, the next issue is with regards to
compliance with section 84 of the Evidence Act, upon which counsel to the
Defendant contended that the said documents are computer generated. In this
regard, I reckon that counsel to the Claimant contended that the documents are
relevant to the issue in dispute as they were downloaded and presented by the
Claimant herself.
Bering the foregoing, I must state that it is
without doubt that the provision of section 84 of the Evidence Act regulates
computer generated evidence. However, I have taken a consideration of the
nature of the documents vis-à-vis the issues in dispute between the parties and
find that it will be in the interest of justice to invoke the provision of
section 12(2) (b) of the National Industrial Court Act, 2006 which provides to
the effect that this court can depart from the provisions of the Evidence Act
in the interest of justice.
Consequently, upon the consideration of the
relevance of the documents in question, I find it just to depart from the
provision of the Evidence Act in this instance and to accordingly admit the
said Exhibit C6, C9 and C10 in evidence. This position equally applies to
Exhibit C11 which counsel to the Defendant for the first time objected to
through his final address on the same ground as Exhibits C6, C9 and C10. For avoidance of doubt, the objections on the
admissibility of Exhibits C6, C9 C10 and C11 are hereby overruled. The said
exhibits are accordingly admitted in evidence.
Also of importance to be resolved before hand
is the propriety of joining the 1st 3rd and 4th
Defendants to this suit as contended by counsel to the Defendant to the effect
that at all material times, the Claimant was employed by the 2nd
Defendant and not the 1st, 3rd or 4th who were
also employees of the 2nd Defendant and accordingly, agents of a
disclosed principal.
Counsel to the Claimant proffered
no argument in response to the contention. However, I have considered the
grouse of the counsel to the Defendant and I find it imperative to restate the
position of the law on the various categories of party to a suit. In this
regard, the definition of the various class of parties was provided in ABUBAKAR
DUDU MOTORS & ANOR v.KACHIA (2016)
LPELR-40228(CA) where the court held thus:
"...who is a proper,
or desirable or necessary party who ought to be joined for the effective and
effectual determination of a dispute in a case or suit. In Chief of Army Staff
v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that,
proper parties are those who, though not actually interested in the claim, are
joined as parties for some good reasons. Desirable parties are those who have
an interest in a suit or may be affected by the result thereof. Necessary
parties are those who not only have interest in the matter, but also who in
their absence, the proceedings could not be fairly and effectually dealt with.
Green v. Green (1987) 3 NWLR (Pt. 61) 480. In LSBPC v. Purification Tech. (Nig)
Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as
someone whose presence is essential for the effectual and complete
determination of the issues before the Court. He is a party, in the absence of
whom, the whole claim cannot be effectually and completely determined.
"Per BDLIYA, J.C.A. (Pp. 10-11)
Arising from the foregoing, I reckon that
indeed the 2nd Defendant is the employer of the Claimant as averred,
however, the Claimant has personal grouse of actions with the other Defendants
which is equally necessary and proper that they should be added for the sake of
establishing the facts alleged against them. For instance, there is an averment
that the 4th Defendant, through the directive of the 1st
Defendant, issued serious threatening message to the Claimant (See paragraph 6
of the Statement of Fact). With such facts, it becomes proper to add the other
defendants who can defend such allegations so that such issues can be effectively
determined when it becomes necessary to do so.
In the light of the foregoing, I must state
clearly without much ado, that the 1st, 3rd and 4th
Defendants are proper parties as there are good reason for joining them and
that the contention on the propriety of joining the 1st, 3rd
and 4th Defendants as contended by counsel to the Defendants lacks
merit and same is accordingly dismissed.
I now turn to the main issue which is in relation to the reliefs
sought by the Claimant against the Defendants. Foremost in this regard, it must
be reckoned that the burden of proving that a party is entitled to a
declaration rests on the party who seeks the said declaration and it is
discharged on the strength of the claimant’s case without recourse to the weakness
of that of the Defendant. In this wise, the court in the case of MATANMI &
ORS V. DADA & ANOR (2013) LPELR-19929(SC) held
that:
"I agree with the learned counsel that
the plaintiffs must establish their claim on the strength of their case. They
cannot place any reliance on the weakness of the defence; if any. The burden of
proof on the plaintiffs in establishing their declaratory relief to the
satisfaction of the court is quite heavy in the sense that such a declaratory
relief is not granted even on admission by the defendant where the plaintiffs
fail to establish their entitlement to the declaration sought by their own
evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v.
Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and
Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373"PER
FABIYI, J.S.C
The clarity on the foregoing position is
imperative in view of the fact that the primary relief sought by the Claimant
is a declaratory relief which seeks for this court to declare that the purported
termination of the appointment of the Claimant by the Defendants by an undated
Letter placed on her desk about 8pm on the 18th day of July 2022 is
null, void and of no effect whatsoever.
Upon a consideration of the foregoing relief, I
must also posit unequivocally that the position of the law is clear to the
effect that where the employment between parties is not one with statutory
flavor, a termination of same without complying with the terms of employment
can only be declared as wrongful rather than being null and void. For avoidance of doubt, the court in the case
of BENIN ELECTRICITY
DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:
“There is no doubt that there is a vast
difference between an employment with statutory flavor in which case the terms
of employment of that staff is governed by the statute creating that
organization and any infraction of the terms of employment and discipline as
guaranteed by the statute is bound to be declared null and void. That is
illegal dismissal, where it occurs. In such situations the employee is restored
to the position as if no disciplinary measures had been taken at all. See Dr.
Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors.
(2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR
Pt.622 Pg.290. However, where the relationship is not governed by statute and
there is infraction of the terms of employment and dismissal by the employer
such infraction is merely wrongful and not null and void. The employee can only
claim damages for breach of contract and cannot claim arrears of salary and
reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v.
SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585." Per OGUNWUMIJU, J.C.A.
(Pp.32-33, Paras. B-F).
The instant employment before the court
clearly shows that it is not one governed by statute, hence, whatever
infraction that it may be that the Claimant is complaining about cannot amount
to a declaration that the termination is null and void but merely to be
declared as wrongful. Also, it should be
noted that from the foregoing authority, no reinstatement nor order for payment
of arrears of salaries can arise from such wrongful termination.
That said, I reckon that the basis upon which
the claimant sought the reliefs before this court in highlight is that following
the 2nd Defendant’s engagement of a consultant from Lagos, she
became subjected to predetermined attacks and on the 17th of July,
2022 she was issued an undated letter of warning while on the 18th
of July, 2022, she resumed and continued work till about 8pm when she saw an
undated letter with the title letter of termination without any query nor compliance
with provision/procedure/process in the extant labour laws for interrogating,
investigating and discipline.
I reckon particularly that counsel to the
Claimant through the final written address contended that the warning and
termination letters are worthless as they are undated and accordingly have no
probative value.
I must foremost state at this juncture that
it is incongruous that the Claimant who tendered the documents, is also the one
contending that the document have no probative value. That notwithstanding, I
find it apposite to consider the letter of termination in question which was
admitted as Exhibit C5 and upon a perusal of same, I find that although the letter is undated, the 5th
paragraph of the said letter reads that: “This termination is effective 18th
July, 2022”.
What this means is that arising from the
letter, it is not unbeknownst to the Claimant, the effective date of the
termination issued to her. In addition to the foregoing, I find it apposite to
state that the complete position of the law is that an undated document will
only be worthless if the date of the authorship is in question or relevant. In
this regard, the court in the case of MARGIF V. LP & ORS (2023)
LPELR-59776(CA) (Pp. 34 paras. D) held that:
"The
law is settled that an unsigned or undated document is a worthless document and
lacking in evidential value particularly if the date of its authorship is
directly in issue and relevant at a trial." Per GUMEL ,JCA (P. 34, paras. D-E)
(emphasis mine).
In the instant case, it is crystal clear that the date of
authorship of the letter of termination issued to the Claimant is not in
question, hence, it makes no difference whether or not the letter of
termination was undated since it clearly communicated to the Claimant that her
employment stands terminated on the 18th of July, 2022.
Having said that, the question that begs most importantly for
answer is whether the termination in itself is wrongful. As a matter of fact, I
reckon that arising from the letter, there was an interchangeable use of
dismissal and termination as can be seen in paragraphs 1, 4 and 5 of the said
letter which reads thus:
The management of EUI CENTER LIMITED regretfully informs you that you
have been dismissed and your service is no longer needed
Even though you have been summarily dismissed, we expect
also full cooperation with the ongoing investigation.
This termination is effective 18th July, 2022
(emphasis mine).
In the light of the foregoing, it can be taken that the word
termination used by Claimant in the relief sought can also be taken as
dismissal. In doing so, I reckon that the Claimant contended that she was not
accorded any query in relation to the basis upon which her employment was
terminated.
Upon the contention, I reckon that the Defendant on their part
posited to the effect that what led to the Claimant’s employment being
terminated was that sometime in December 2021, the Claimant committed fraud
arising from certain sum of money which the 1st Defendant
transferred to her for the business including staff salaries which the Claimant
misappropriated. The Defendants posited that the 1st Defendant
discovered same when she returned to the country in February 2022. The Defendant also stated that the undated
letter of warning was long issued to the Claimant before the letter of
termination but the Claimant treated same with ignominy.
Bearing the foregoing in mind, what is evident before the court is
that the reason why the Claimant was dismissed was clearly stated in Exhibit C5
as paragraph 2 reads that: “This decision was reached due to several complaints
of fraudulent, unexplainable transaction, insubordination, and gross
mistreatment of staff and clients of the organization”.
In the light of the foregoing, it is imperative to state that
rightly so, an employer has the power to dismiss an employee for acts
considered to be an infraction to the organization. However, the dismissal
should not be done without the courtesy of fair hearing accorded to the
employee. In this regard, the court in the case of AVRE V. NIPOST (2014)
LPELR-22629(CA) (Pp. 36-38 paras. B)
held that:
"The law is that ordinarily a
master is entitled to dismiss his servant for good or bad reasons or for no
reason at all; that where parties have reduced the terms and conditions of
service into agreement, the conditions must be observed; that where a contract
of employment had been properly terminated, intention or motive for doing so
becomes totally irrelevant; and that where an Employer pleads that an Employee
was removed or dismissed for a specific misconduct, the dismissal cannot be
justified in the absence of adequate opportunity offered to him to explain,
justify or else defend the alleged misconduct. See the following authorities
- Nigerian Oil Mills Ltd. V. Daura (2000) 1 NWLR (Pt. 639) 78, Arinze V. First
Bank (2000) 1 NWLR (Pt. 639) 78; UzohoV. Task Force on Hospital Management
(2004) 5 NWLR (Pt. 867) 627 and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457)
632, where the Supreme Court held - "Before an employee can dispense
with the services of his employee under the common law, all he needs to do is
to afford the employee an opportunity of being heard before exercising his
power of summary dismissal, even where the allegation for which the
employee is being dismissed involves accusation of crime.
Bearing the foregoing authority in mind, I have evaluated the
entire facts alleged by the Defendants and I do not find any fact suggesting
that the Claimant was accorded the opportunity to explain her side of the
story. Even the warning letter issued to the Claimant was not preceded by a
query. As contended by the Claimant, there is no evidence of a query issued to
the Claimant asking for explanation on the allegations for which she was dismissed.
I understand that the Defendants have tendered several documents in attempt to
establish allegation of fraud, however, the documents are of no significance in
this regard as a finding or otherwise, of fraud, will not change the fact that
the Claimant has been dismissed without fair hearing.
It is in the light of the foregoing finding that I shall consider
the reliefs sought. Reliefs one is for: “A DECLARATION that the purported termination of the appointment
of the Claimant by the Defendants by an undated Letter placed on her desk about
8pm on the 18th day of July 2022 is null, void and of no effect
whatsoever”.
In
considering relief one, while I had just concluded that the Claimant was not
accorded fair hearing before being issued the letter with which she was
summarily dismissed, it is imperative to mention that I had earlier stated the
position of the law in relation to termination of employment that is not with
statutory flavor. What this in effect means is that the termination of the
Claimant’s employment cannot be declared null and void but merely wrongful.
Accordingly,
relief one is granted to the effect that this court makes a declaration that
the termination
of the appointment of the Claimant by the Defendants by an undated Letter
placed on her desk about 8pm on the 18th day of July 2022 is
wrongful.
Relief two and four are
for “AN ORDER SETTING ASIDE the undated purported Letter of Termination placed
on the desk of the Claimant about 8pm on Monday the 18th of July
2022 to take effect on same day”.
And
“AN ORDER directing
the Defendants to immediately withdraw both the undated Letter of Warning placed
on her desk about 8pm on Sunday, the 17th of July 2022 and the
undated Letter of Termination also dropped on her desk about 8pm on Monday the
18th day of July 2022”.
With regards to the said reliefs, it is unclear if
the letters in question are to be set aside and withdrawn simply because they
are undated or because they were placed on the Claimant’s desk. That
notwithstanding I must say that in the light of the clear position of the law
that the termination of an employment which is not one with statutory flavor
cannot be declared null and void, coupled with the settled principle that under
common law employment, an employee cannot be imposed on an unwilling employer, there
is no basis for setting aside or withdrawing the letters written and issued to
the Claimant by the Defendants.
Consequently, reliefs two and four are accordingly
refused.
Relief three is for “AN
ORDER directing
the Defendants to pay the Claimant her Salary for the Month of July 2022 and
continuously until the determination of this suit”.
In the same vein, it is evidently clear that the
Claimant knew from the 18th of July 2022 that her services were no
longer needed by the Defendants and the Claimant has not been providing any
service for the Defendants since the said July 2022.
There
is no gainsaying that the consideration for work is wages (salary), and the
consideration for wages (salary) is work. See Browning v. Crumlin Valley
Collieries Ltd. (1964) All ER 936. According to Black’s Law Dictionary, tenth
edition, at page 1537, Salary is “an agreed compensation for services”. The
said dictionary also defines accrued salary to be a “salary that has been
earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’
instead of salary and defines wages thus:
"wages" means remuneration or
earnings (however designated or calculated) capable of being expressed in terms
of money and fixed by mutual agreement or by law which are payable by virtue of
a contract by an employer to a worker for work done or to be done or for services
rendered or to be rendered.
In addition, the position of the law as expoused in
BENIN ELECTRICITY DISTRIBUTION COMPANY
PLC. v. ESEALUKA (supra), is clear to all and sundry that the Claimant cannot
claim arrears of salaries nor for salaries that were not earned, since her
employment is not one with statutory flavor and since she has not provided work
for the Defendants since July, 2022. What the Claimant can only seek for as a
remedy for the infraction of wrongful dismissal is damages.
Consequently, there
is no basis for the grant of relief three and same is accordingly refused.
Relief 5 is for “THE SUM
OF N10,000,000.00 (TEN MILLION NAIRA) as General Damages for wrongful termination
of the appointment of the Claimant and the trauma / distress etc.. she suffered
after the receipt of the voice message from the 4th Defendant acting
on behalf of the 1st Defendant”
In considering the foregoing relief, it is evident
that the basis upon which the Claimant is seeking for general damages are that
her employment was wrongfully terminated and that she suffered damages
following receipt of a voice message from the 4th Defendant.
While I had earlier found and declared that the
termination/dismissal of the Claimant from employment was wrongful in the sense
that she was not accorded fair hearing, there is no scintilla of proof of a
wrong suffered arising from the voice message presented via exhibit C6, a
compact CD with a 1kb content which did not produce any sound upon being
inserted into a computer.
In considering the remedy to be accorded to the
Claimant for the wrongful dismissal, I find it apposite to state that wrongful
dismissal in cases of contract governed by mere terms of employment attracts
damages as held in the case of UNITED GEOPHYSICAL (NIG) LTD & ORS V. OSIOBE
& ORS (2014) LPELR-24528(CA) (Pp. 7
paras. A) that:
"In employment governed by
Statute, the Statute governs the terms of employment and dismissal. Any
dismissal outside the provisions of the Statute is unlawful dismissal. Any
other employment outside the Statute is governed by the terms under which the
parties agreed to be master and servant. In other cases governed by agreement
of the parties, where the dismissal is done in the form not agreed to, the
dismissal is merely wrongful. In the case of unlawful dismissal, the Court
after such finding will declare the dismissal null and void and of no effect.
This returns the party to their positions ante bellum. In the case of wrongful
dismissal, the only remedy is a claim in damages for that wrongful dismissal.
See Idoniye Obu v. NNPC (2003) 1 SCNJ 87 at 105. This is because a servant
cannot be imposed by the Court on an unwilling master even where the master's
behavior is wrong." Per OGUNWUMIJU, JCA (as she then was) (P. 7,
paras. A-E)
While the foregoing authority makes it
certain that the Claimant is entitled to damages for wrongful dismissal, what
is next to decide is the measure or quantum of the damages in view of the sum
of N10 million claimed by the Claimant. in this regard, the court in the case
of ADIBUAH V. MOBIL OIL (NIG) PLC (2015) LPELR-40987(CA) (Pp. 15-17 paras. B) postulated clearly on
what the measure of damages in case of wrongful dismissal/termination will be,
when the court held that:
“The common law principle of
master and servant relationship in wrongful termination was clearly put forth
by the trial Court and the quantum of damages to the appellant is usually what
he should have earned during the period of notice. The lower Court dutifully
evaluated the status of the appellant and found that he was not a management
staff and had worked for about 11 years with the respondent. It was also
established that the appellant had collected some payments meant to be his
terminal benefits which is an indication that he accepted the redundancy. The
assessment by the Court came to one month's salary in lieu of notice which the
lower Court painstakingly calculated from the annual entitlement of the
appellant. Appellant failed to establish what his monthly pay was. If the
period of notice is one month then the quantum of damages accruable to the
appellant is that one month's pay. That was what the lower Court found and
awarded to the appellant. It is also in conformity with settled common law
principles of master servant relationship. The collective agreement relied upon
by the appellant cannot be used to assess the measure of damages since it was
not part of the contract of service with the respondent. The lower Court was
right and this issue is also resolved against the appellant." Per NIMPAR ,JCA (Pp. 15-17, paras. B-C).
Bearing the
foregoing authority in mind, it is evidently clear that the claim for general
damages in the sum of N10, 000,000 is outside the confines of common law. The claim for the sum of N10, 000, 000
damages in my considered opinion appears as a desire for gold digging. This
court is a court of justice and equity.
The Supreme
Court in Syndicated Investment Holdings Limited v. NITEL Trustees Limited (in
Liquidation) 2022 LPELR – 58841 (SC) on the need for courts to be wary of gold
diggers when considering award of damages, it referred to the case of GKIF
Nigeria Limited v. NITEL Plc per Fabuyi (JSC) where the Supreme Court held that
“prospective god diggers” should have no place in courts of law as well as that
of equity. A Judge should be wary of them. A party who is ordinarily entitled to
a pound of flesh should not run after one hundred of same.
What the
Claimant is entitled to as damages for wrongful termination is her salary in
lieu of notice which upon perusing Exhibit D3 under Duration of employment indicates
that the expected length of notice from an employer is one month, the said one
month can also be said to be the expected length of notice from the employee.
In view thereof, I have considered exhibit C3 which is the Claimant’s payslip
with Net Pay at N300,000.00
In the light
of the finding that the Claimant’s monthly salary is N300,000.00 I equally find
it imperative to invoke the provision of section 19 of the National Industrial
Court Act, 2006 which empowers this court to accord damages in deserving
circumstances in cases which this court has jurisdiction to entertain. This
consideration and invocation is in view of the breach to the Claimant’s
fundamental right to fair hearing in the course of her dismissal.
Consequently,
relief five is granted to the effect that this court makes an order directing
the Defendants to pay to the Claimant the sum of N300, 000 being one month salary
as general damages for the wrongful termination of the Claimant’s employment on
the 18th of July, 2022. I see no justification to award any sum above
that based on the facts and circumstances of this case, the sole
issue is resolved to the effect that in view of the facts and evidence before
this court, the Claimant is entitled in part to the reliefs sought.
In the final analysis, the Claimant’s case is meritorious only in
the extent to which reliefs one and five have been granted while other reliefs
fails and are accordingly dismissed.
I now turn to the counter-claim of the 2nd Defendant
which as arising from the statement of Defence and counter-claim is thus:
i)
AN ORDER of this Honourable Court directing the Claimant/Defendant
to the counter-claim to immediately return to the 2nd
Defendant/Counter-Claimant the 2nd Defendant/Counter-Claimant`s
IPhone 11 Pro Max being the 2nd Defendant`s Customer support phone
fraudulently converted by the Claimant in the course of her employment with the
2nd Defendant.
ALTERNATIVELY: AN ORDER directing the
Claimant/Defendant to the counter-claim to pay to the 2nd
Defendant/Counter-claimant an amount equal to the current market value of the
IPhone 11 Pro Max.
ii) AN ORDER of this Honourable Court directing the
Claimant/Defendant to the counter-claim to immediately refund to the 2nd
Defendant/Counter-Claimant the N9,245,650.00
(Nine Million, Two Hundred and Forty-Five Thousand, Six Hundred and Fifty
Naira) being the 2nd Defendant`s fund fraudulently diverted by the
Claimant/Defendant to the counter-claim.
iii) The sum of N2,000,000.00
(Two Million Naira) representing the cost of the Action.
Needless
to state that the foregoing counter-claim is an independent claim as it has a
life of its own and can survive without the substantive suit. In Zenith Bank & Anor. v. Ekereuwem &
Anor (2011) LPELR-5121 CA, the court in describing a counter claim held that:
"It is the law that a Counter-claim is a
claim on its own in the same suit whereby the Defendant becomes a Plaintiff or
Claimant and the Plaintiff in the action itself becomes a Defendant for the
purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to
where the facts of the Plaintiff's case are also conceived by the Defendant as
giving rise to his own reliefs, and claims such relief therein to avoid
multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and
the burden of proof of assertions under Sections 135 and 137 of the Evidence
Act".
That said,
the highlight
of facts in relation to the foregoing counter-claims is that sometime in March
2021, the 2nd Defendant/Counter Claimant’s IPhone 11 Pro Max got
missing and upon investigation, it was discovered that the Claimant/Defendant
had stolen and sold the phone and when 2nd Defendant/Counter
Claimant demanded explanations from the Claimant/Defendant, the Claimant/Defendant
hilariously said that she thought the iPhone 11 Pro Max was a gift from the 1st
Defendant.
Also, the 2nd
Defendant/Counter Claimant averred that from October 12 to December 25, 2021
the 1st Defendant as the alter ego of the 2nd Defendant/Counter
Claimant travelled out of the country and made several fund transfers to the
tune of N10,472,100.00 on behalf of the 2nd Defendant
from the 1st Defendant`s Guaranty Trust Bank account No.0037861420 to
the Claimant/Defendant’s Guaranty Trust Bank personal account No. 0010823478
for payment of 2nd Defendant`s staff salaries and running of the 2nd
Defendant`s business. But upon the return of the 1st Defendant to
Nigeria in February, 2022, the 1st Defendant received several
complaints of unpaid salaries and allowances of staff among others, whereupon,
the 1st Defendant summoned the Claimant and demanded explanations
for the unjust application of the funds transferred to the Claimant, which the
Claimant failed to do.
The 2nd
Defendant added that after a comprehensive investigation using the 1st
Defendant`s account statement evidencing funds transferred to the Claimant and
t02.4iofoivo.,he payment vouchers prepared by the Claimant, it was confirmed
that the Claimant purportedly spent the sum of N1,226,450.00 only out of the N10,472,100.00
and willfully and fraudulently diverted the said sum of N9,245,650.00. to her personal use.
Reacting to
the Counter Claim, the Claimant/Defendant with regards to the allegation of stealing
iPhone 11 Pro Max posited that it is completely false that the iPhone got missing
in March, 2021 because the iPhone never got missing and no investigation
whatsoever was conducted because the said phone was a gift to her by the 1st
Defendant. With regards to the allegation of fraud in the sum of N9,245,650.00,
Claimant/Defendant posited that she never misappropriated the funds of the 2nd Defendant as
there has never been any transaction she initiated without the awareness of the
1st Defendant. Claimant/Defendant presented a breakdown of various
expenses she made within October to December, 2021 although no total of sum
expended was stated.
The foregoing being the contention, I have also
taken cognizance of the argument particularly proffered by counsel to the
Claimant in relation to proof of the counter claim and consequently, the lone
issue for the determination of the Counter claim is to wit:
Whether
or not the 2nd Defendant/Counter-Claimant is entitled to the reliefs
sought.
In
resolving the sole issue, I must posit that the law is settled that the burden
of proving the counter claim is on the 2nd Defendant as the court
held in the case of AFOLAYAN v. ARIYO & ANOR
(2014)
LPELR-22775(CA) that:
“…The burden of proof of the counter claim is therefore on the
counter claimant in the same manner as required in any civil claim i.e. on the
preponderance of evidence." Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).
While the general rule in terms of proof of
civil suit is rightly upon preponderance of evidence, it must be said that with
regards to an allegation of crime, the proof must be beyond reasonable doubt.
By virtue of the provision of section 135(1) of the Evidence Act 2011, the
court in the case of KAYODE v. FRN (2014)
LPELR-24418(CA) held that:
"The proof of a crime in a criminal
trial is beyond reasonable doubt. The burden of proof squarely rests on the
prosecution and does not shift to the accused in any manner howsoever. If there
is any doubt in the mind of the Court it should enure to the benefit of the
accused." Per GUMEL, J.C.A. (P. 28, paras. E-F)
It is also of importance that I state that the
burden of proving the commission of crime is squarely on the 2nd
Defendant/Counter Claimant and upon evaluation of the evidence placed before
this court, the simple question is whether the said evidence establishes beyond
reasonable doubt that the Claimant stole iPhone 11 pro max or diverted the sum
of N9,245,650.00 which belonged to the
2nd Defendant.
In answering
the question, the evidence placed before the Court with regards to stealing of
phone is the oral testimony of DW1 who upon cross examination posited that the
date of stealing the phone was mixed up after admitting that it is true that
she stated that the Claimant stole iPhone in March 2021 and that her salary
increased in June 2021 to N300,000 from N150,000. Beyond the testimony of the
DW1, there is nothing else before this court establishing the fact that the
Claimant/Defendant stole a phone. No police report, no query, no office report
in relation to official investigation. This tends to give credence to the
narration of the Claimant/Defendant that the said phone was indeed a gift which
out of spite the Defendant/Counter Claimant has an afterthought about and
strongly desires to recover. In addition, I reckon that DW1 herself admitted
that each time the 1st Defendant travels, she buys things for
people. The DW1 also admitted that the
Claimant was stripped of all the 2nd Defendant’s properties with the
Claimant/Defendant. It is equally unsettling that the 2nd Defendant
in one breathe posited that the said phone was given to the Claimant to
transfer data from and she never returned it, while in another breathe, it was
posited that the phone got missing.
Bearing all
of these in mind, and upon a thorough evaluation of the evidence presented
before this court, there is absolutely no convincing evidence beyond reasonable
doubt to prove that the Claimant stole an iPhone 11 Pro Max and I so hold.
With regards
to allegation of misappropriation of funds belonging to the 2nd
Defendant/Counter Claimant, I reckon that the two pieces of evidence presented
by the 2nd Defendant/Counter Claimant are the statement of account
of the 1st Defendant admitted as Exhibit D6 and a compiled voucher
admitted as Exhibit D7.
What the
Defendant counter Claimant seeks is for this court to compute the sum total of
the vouchers and deduct same from the sum total of what was transferred to the
Claimant/Defendant through the statement of account, in order to come to a
conclusion that the Claimant misappropriated the difference and should be made
to pay the said difference to the 2nd Defendant simply because there
is no voucher in support of that difference.
In this
regard, I must state that such expectation does not establish misappropriation
of funds because from the narration of the 2nd Defendant Counter
Claimant, the monies sent to the Claimant were for several things as stated in
the narration of the 1st Defendant’s statement of account and a
perusal of the schedule prepared by the 2nd Defendant/Counter
Claimant some of the monies were tagged “NIL” without narration, while a column
of the schedule indicates that the money is for salaries and charges. The
question arising is whether all of these are to have vouchers as well. What I
am laboring to say is the statement of account transferring the monies to the
Claimant/Defendant and the vouchers alleged to have been generated does not in
themselves establish misappropriation. For the Claimant to have misappropriated
the sum of N9,245,650.00, the various individual to whom she ought to pay the
monies must have sued the organization or at least written a demand letter or
message asking for their monies that are unpaid by the Claimant/Defendant. None
of such proof is before this court.
What is most
worrisome about the allegation of misappropriation is that the said
misappropriation was said to have been discovered in February 2022 and yet, no
formal report to the police was made, no query was issued to the Claimant, no
internal memo demanding for explanation was addressed to the Claimant and
tendered in court neither was there a report of an investigation carried out
internally in this regard tendered in court until her employment was terminated
in July, 2022 and only being presented via this counter claim.
Also, the
assertion that the 2nd Defendant upon discovery of fraud, issued to
the Claimant an Employee Etiquette Form detailing further codes of conducts to
be observed by the Claimant, which Form was thoroughly perused and returned
signed by the Claimant is not a believable narration because the said etiquette
form is not peculiar to the Claimant/Defendant alone. On the face of it, the
form (Exhibit D7) is a generic document which says nothing about the fact that
the Claimant/Defendant committed financial fraud in the sum of N9,245,650.00 neither was a confessional
statement attached admitting such fact.
Bearing the
foregoing finding in mind, it is the irrefutable conclusion that it is doubtful,
to say the least, that the Claimant/Defendant stole the 2nd
Defendant’s phone or misappropriated the 2nd Defendant’s funds. Such
doubt by all means must be resolved in favour of the Claimant/Defendant. In
this regard, the court in the case of MOHAMMED & ORS V. STATE (2013)
LPELR-22352(CA) (Pp. 33 paras. A-A) held
that:
"It is the law that once the
prosecution fails to establish the ingredients of the offence and where there
are doubts in the mind of the Court as to whether or not it was the accused
person who committed the offence, such doubts should be resolved in favour of
the accused." Per ORJI-ABADUA ,JCA (P. 33, para. A) (of blessed
memory).
In the light of the foregoing, the reliefs sought
before this court is not supported by any scintilla of evidence and
accordingly, reliefs one, along with the alternative relief and relief two are
refused.
Relief three is for N2,000,000.00 being cost of
action. In this regard, it is settled that cost is at the discretion of the
court and awardable in deserving circumstances in favour of the successful
party in a suit. The court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) declared that:
"The award of cost is entirely at
the discretion of the court, costs follow the event in Litigation. It follows
that a successful party is entitled to costs unless there are special reasons
why he should be deprived of his entitlement. In making an award of costs the
court must act judiciously and judicially. That is to say with correct and
convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449
Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26,
paras. E-G)
Bearing the foregoing in mind,
with regards to the counter claim, the 2nd Defendant is not the
successful party and accordingly has no basis for consideration of cost which
is consequently refused.
Having
addressed all the reliefs sought by the 2nd Defendant/Counter-Claimant,
the sole issue formulated for the determination of the counter claim is
resolved against the 2nd Defendant/Counter-claimant to the effect
that in view of the evidence before this Court, the 2nd Defendant/Counter-Claimant
is not entitled to any of the reliefs sought.
In the final analysis, the counter-Claim of
the 2nd Defendant lacks merit in its entirety and same is accordingly
dismissed.
Judgment
is accordingly entered in respect of the Counter-claim
I
make no order as to cost.
…………………………………………………………
HON. JUSTICE
Z. M. BASHIR
JUDGE.