IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA  

 

                                                                                  SUIT NO: NICN/LA/317/2020

DATE:  MAY 14, 2021

 

BETWEEN:

MR. ELIAS IGBINAKENZUA                                                         - CLAIMANT

    

AND

FIRST ALUMINIUM NIGERIA PLC                                           â€“ DEFENDANT                                                                                          

 

REPRESENTATION:

I. E Enyinnaya (with K.C Okeke, Esq., and C.F Dimukeje)

-for the Claimant;

D.O Ogebe,Esq., (with G.A Okebu, Esq., C.G Ifenkwe Esq.,

Bob C.O Ijomah,Esq., I.T Adekilumo and U. Oguguo)-for the Defendant

 

JUDGMENT

 

1.             By a General Form of Complaint issued on 8th September 2020 with the accompanied frontloaded processes, the Claimant, who served as Managing Director of the Defendant Company, commenced this suit against the Defendant, seeking the following reliefs:

“ 1.  The sum of N112,500,000 (one hundred and twelve million, five hundred thousand naira) only being the equivalent of the sum of $250,000 (two hundred and fifty thousand dollars) only being the Claimant’s basic salary for 25 months as Director and Managing Director calculated at the exchange rate of N450 to $1.00.

 

 2.  The sum of N150, 000,000.00 (one hundred and fifty million naira) only being the Claimant’s monthly allowance for 25 months as Director and Managing Director.

 

 3.  The sum of N9,000,000.00 (nine million naira) only being the equivalent of the sum of $20,000 (twenty thousand dollars) only being his BUPA Medical Insurance for 25 months calculated at the exchange rate of N450 to $1.00.

 

 

 

 

4. The sum of N8,458,333.33 (eight million, four hundred and fifty-eight thousand , three hundred and thirty-three naira, thirty-three kobo) only being the monetized value of Honda CRV amortized over the period of 5 (five years) and pro-rated over the period of employment (25 months) being the Claimant’s Official Vehicle allowance as Director and Managing Director.

 

5. The sum of N307, 954,350 (three hundred and seven million, nine hundred and fifty-our thousand, three hundred and fifty naira) only been (sic) the equivalent of the sum of $684,343 (six hundred and eighty-four thousand, three hundred and forty-three dollar) which is inclusive of the 10% interest rate as stipulated in the contract between the period of June 2019 – June 2020.

 

6. 10% interest per annum on the total outstanding sum of N307,954,350 ( three hundred and seven million , nine hundred  and fifty-four thousand, three hundred and fifty naira only being the naira equivalent of the total sum of $684,343 ( six hundred and eighty- four thousand, three hundred and forty-three dollar from July 2020 until Judgment is given in this suit.

 

 7.  The interest on the Judgment sum at the rate of 21% (per cent) per annum from the date of judgment till the full payment of the judgment sum.

 

 8. Exemplary damages at the sum of N50, 000,000.00 (fifty million) only.

 

9. The sum of N5,000,000 (five million naira) only as cost of prosecuting this suit”.

 

2.             Filed along the Suit are Motion Ex-Parte and Motion on Notice with supporting Affidavits, Exhibits and Written Addresses, as well as Affidavit of Urgency deposed to by the Claimant himself, praying the court to hear the suit urgently during the vacation period and grant the injunctive reliefs, as the Defendant have concluded plans and initiated steps to dispose its assets, particularly  prime assets situate at Port Harcourt Rivers State, which would render nugatory and fruitless any judgment delivered in the matter in favour of the Claimant. Also filed is an Application for Summary Judgment with supporting processes in line with the Rules of the Court.

 

 

 

 

 

 

3.             At the proceedings of 11th September 2020, sitting as a Vacation Judge, I had in a brief Bench Ruling, reviewed the casefile, and  had noted that there was an urgency  in terms of the threatened imminent disposal /dissipation of the company’s properties by the Defendant, capable of affecting the realization of a Judgment that may be delivered in favour of the Claimant, nevertheless, the Ex-parte Application for Interim Injunction was refused, as I formed the view that  the circumstances of the matter as disclosed in the supporting Affidavits and exhibits though disclosed urgency but would warrant hearing parties on notice and by way of pleadings. Instead, an Accelerated Hearing was ordered, for expedited hearing of the suit on its merits, and the Defendant to be served with the court processes and be put on notice of the pending Application for interlocutory injunction.

 

4.             At the resumed proceedings of 18th September 2020, in furtherance of the order of Accelerated Hearing earlier made for expeditious hearing of the suit, parties were directed to complete filing and exchange of their pleadings, and to come along with their witnesses. The Defendant had responded with its counsel’s Memorandum of Appearance, Statement of Defence with frontloaded defence processes and Defendant’s Counter-Affidavits to the Claimant’s Motion for Interlocutory Injunction, and that of Application for Summary Judgment, all dated and filed on 24th September 2020, wherein the Defendant denied the Claimant’s claims and challenged the pending applications. The Claimant swiftly reacted with a Reply to Statement of Defence dated and filed on 25th September 2020, wherein in he joined issues with the Defendant on his claims.  The matter was accordingly set down for trial.

 

5.             At the Trial proceedings of 25th September 2020, the Claimant opened his case, wherein he testified for himself as Claimant’s Witness (CW). He adopted his two sets of Witness Statement on Oath; one deposed to on 9th September 2020and the Further Affidavit deposed to on 25th September 2020, and also tendered 9 documents admitted in evidence and marked as ‘Exhibits C1-C9’, as described in the Claimant’s Lists of Documents dated 9th September 2020 and 25th September 2020, respectively. CW was thoroughly cross-examined by the Defendant’s counsel, wherein a photocopy of Business Day Newspaper of November 15 2019, in respect of the Claimant’s interview granted on Globus Bank was tendered through CW, of which the Claimant’s counsel raised objection on its admissibility being a public document, which certified true copy was not tendered. It was thereafter admitted ‘Subject to Ruling (SR)’ and marked as Exh.CD1 (SR). After Re-examination by his counsel, the Claimant closed his case.

 

6.             The Defendant thereafter opened its defence through one Calistus Udalor, the current Managing Director of the Defendant Company, who testified as the Defendant’s Witness (DW). He adopted his Witness Statement on Oath deposed to on 24th September 2020, and tendered 8 sets of documents, admitted in evidence and marked as ‘Exhibits 1-8’, as described in the Defendant’s List of Documents dated 24th September 2020. DW was hotly cross-examined by the Claimant’s counsel, and there being no Re-examination by the Defendant’s counsel, the Defendant’s case was closed.

 

CASE OF THE PARTIES:

 

7.             Gleaning from the parties’ pleadings and the testimonies of their Witnesses at the trial , the case of the Claimant is that  by a Contract of Employment dated February 26 2016 (exh.C1), he was appointed Managing Director of the Defendant company , for a two-year term, with specified conditions and remuneration package. And that he meritoriously served and the employment was determined by effluxion of time, prior to which he had tendered his resignation letter dated February 27 2019 (exh.C3), by which he confirmed his earlier notice of resignation which elapsed on February 28 2019. That despite his meritorious service and due resignation, he was owed some various sums of money, some of which were denominated in foreign currency, i.e US Dollars, to the tune of $622,130 (six hundred and twenty-one thousand, one hundred and thirty United States Dollars, which on conversion to Naira at the rate of N450 per one USD amounts to the sum of N279,958,333 (two hundred and seventy-nine million, nine hundred and fifty-eight thousand, three hundred and thirty-three naira).

 

8.             CW narrated the breakdown of the outstanding indebtedness, contending that they were part of agreed terms of the said employment contract., to the effect that he was owed: basic salary for 25 months at the rate of $250,000 (two hundred and fifty thousand USD) per month, equivalent of N112,500,000.00 (one hundred and twelve million, five hundred thousand naira)  at exchange rate of N450 per Dollar; monthly allowance in the sum of N6,000,000.00 (six million naira) only for the duration of the contract, which came to aggregate of N150,000,000.00 for 25 months he worked; $10,000.00 (ten thousand USD per annum , being his entitled British United Provident Association Ltd (BUPA) Medical Insurance, per annum for the 25 months he worked, which amounts to $20,000.00, equivalent of N9,000,000.00 . That it was part of the terms of the employment contract that he would be given an official car (Honda CRV or the monetized value, and that the car would be amortized over a period of 5 (five) years. And the Defendant having not performed this term, he has raised an invoice of the current value of the car, which is N20, 300,000, as per the Invoice issued by the Honda Company dated 26th August 2020 (exh.C2). And that based on the said invoice value, he is entitled to the sum of N8, 458,333.33, being the monetized value of Honda CRV amortized over the 5 years, and pro-rated over the period of his employment which lasted for about 2 years (25 months).

 

9.             It is also the Claimant’s case that based on Clause 17.2 of the said employment contract (exh.C1), it was agreed that all outstanding payment under the contract shall be made within 3 months from the effective date of resignation, failing which, interest shall accrue at the rate of 10% per annum on the outstanding USD or its naira equivalent. That the 10% of the outstanding $622,130.00 amounts to $62,213 calculated from June 2019 to June 2020. That the total sum due to him including interests is the sum of $684,343 ($622,130 + 62,213), which amounts to the naira equivalent of the sum of N307,954,350, at exchange rate of N450 to one USD.

 

10.        On the Defendant’s contention that the contract of employment is not valid and improperly procured, it is the Claimant’s case that all due approval of his remuneration was obtained as evidenced by the email exchanges and Minutes of Board of Directors’ Meetings, tendered and admitted as exhibits C5-C9. CW further narrated that as the Defendant failed to pay his outstanding arears, he engaged the services of his Solicitors (Messrs’Country Hill Attorneys), who wrote a letter of demand dated 25th June 2020 to the Defendant (exh.C4), which failure to comply with by the Defendant led to the suit herein. CW urged the court to uphold his case and grant Judgment in his favour.

 

11.        On the part of the Defendant, the case of the Defendant tallies with that of the Claimant on the employment history, but differs markedly on the Claimant’s outstanding entitlements, particularly on the propriety of demand for payment of remuneration, which the Defendant completely dissociated itself from, as such obligation is said to be that of one Alucon SA, which the Defendant had technical service with. It is the case of the Defendant that the Claimant was a representative Director in the Defendant Company, as he became a Director in a representative capacity as a nominee of Alucon S.A, a Panamanian company, for a fixed term. Defendant  denied being indebted to the Claimant at all, contending that all Executive Directors of the Defendant company including the Managing Director, which the Claimant served as, were entitled to two forms of remuneration, namely: ‘service fee’ and ‘local salary/stipends’. That the ‘service fee’ is a commission which represents the bulk of the Directors’ remuneration, while ‘local salary/stipends’ are meager fees payable to the directors as monthly allowance. That the contractual practice of the Defendant is to pay Alucon S.A 2% of its net sales a ‘technical service fee/commission’, for providing management personnel to the Defendant, and Alucon S.A , in turn, pays the Executive Directors the remuneration termed ’service fee’. Thus, the remuneration payable as service fee for services rendered by the Claimant and other management personnel, were paid through Alucon S.A, being the company the Defendant pays on behalf of the Claimant and not paid to the Claimant personally.

 

12.        The Defendant further contended that though the Claimant was appointed as Managing Director, himself and other executives’ remuneration was not fixed by the Defendant’s Board, because their remuneration (service fee/commission) was payable to them by Alucon S.A from the 2% net sales. And as such, a distinct remuneration for the Managing Director ought to have been fixed by the Board of Directors of and backed by a resolution and minutes of the Board.  And that there was never any such meeting, minutes or resolution in respect of the remuneration of the Claimant. That at all the 25 months the  Claimant acted as the Defendant’s Managing Director, he never complained of none payment of salaries as per any contract of employment, neither did the Claimant who ought to have been in charge of approving salaries and the payroll, pay himself as per the ‘purported contract of employment’, which the Defendant contended was built on a ‘conspiracy between the Claimant , and other Directors (Maryam Bashir and Tosa Ogbono), who authored the exhibited contract of employment, in order to confer undue benefit on the Claimant, without the approval of the Board. And that the purported Board approval of the Claimant’s remuneration as an MD came after the purported contract of employment (exh.C1).

 

13.        The Defendant also contended that the Claimant had complete dereliction of duties, occasioned by absenteeism, while he focused on personal pursuit of setting up Globus Bank, during the period of his tenure as the Managing Director of the Defendant Company.  It is also the case of the Defendant that the Claimant was not entitled to claims relating to BUPA Medical Insurance, as there was no actual BUPA medical insurance the Claimant took out, apart from the medical insurance cover provided for the staff of the Defendant by its Health Maintenance Organization (HMO). On the claim for CRV Honda, the Defendant denied liability, contending that having already provided the Claimant with an official car as the Managing Director, the Claimant is not entitled to monetized value of official car. Besides, the invoice tendered by the Claimant (exh.C2) did not reflect the cost of the Honda CRV at the time the Claimant served as Managing Director. It is the Defendant’s further contention that it is not indebted to the Claimant in the sums claimed, and that the Defendant had made cash advance to the Claimant in excess of N9, 745,230, which the Claimant did not reimburse. DW concluded, and urged the court to dismiss the suit as being bogus, frivolous, and vexatious and an attempt at gold-digging.

 

COUNSEL’S SUBMISSIONS:

 

14.        Upon conclusion of Trial, filing and exchange of Final Written Addresses was ordered, of which both counsel complied with. Learned Defendant’s lead counsel, Gideon Okebu,Esq., in his un-numbered 23-paged Final Written Address (settled with Chijioke Ifenkwe, Esq.) dated 13th October 2020 and filed on 14th October 2020,raised a sole legal issue for determination: Whether or not upon holistic consideration of the pleadings and evidence before the Court, the Claimant has specifically and particularly proved his claims which are in the realm of special damages, by cogent and compelling evidence?

 

15.        Also filed is yet another un-numbered, 15-paged Defendant’s Reply Address, dated and filed on 26th November 2020, wherein counsel further expounded legal submissions on the earlier issue raised in his Final Written Address.

 

16.        On the side of the Claimant, learned lead counsel for the Claimant, Kelechi Okeke, Esq., in his 35-paged Final Written Address (settled with Michael Chika Enyinnaya, Esq, Ugochukwu Charles Kanu, Esq, and Esther Ifeoma Enyinnaya), dated 16th November 2020  and filed on 18th November 2020, raised two legal issues for determination, viz: (i). Whether the Claimant has proved his case against the Defendant having regard to the contract of employment marked exh.C1 and totality of evidence led in this suit?, and (ii). Whether the Claimant is entitled to all the reliefs claimed in this suit?

 

17.        At the Adoption proceedings of 16th February 2021, both counsel adopted their respective Final Written Addresses and adumbrated on the legal issues raised therein, while urging the court to uphold their respective standpoints on the disputed contention of the parties. The matter was thereafter reserved for Judgment.

 

 

 

 

 

 

 

COURT’S DECISION:

 

18.        I actively participated in the proceedings; painstakingly read the voluminous pleadings and processes, as well as intensively reviewed submissions canvassed in a total of 73-paged Final Written Addresses and Reply Address, filed and exchanged between both counsel, in advancing the case of the respective parties they represent. The legal materials presented are indeed voluminous and verbose, and posed editing-skill-test, in the course of writing this Judgment. I also keenly watched the Witnesses testify and noted their demeanors, and carefully evaluated the evidence tendered as exhibits in the proceedings.

 

19.        I would first proceed with clearing the threshold issue concerning admissibility of one document tendered by the Defendant through the CW under cross-examination, but which admissibility was objected to, by the Claimant’s counsel.

 

The Ruling on Admissibility Objection:

 

20.        At the trial proceedings of 25th September 2020, learned counsel for the Defendant during cross-examination of the Claimant’s Witness (CW) sought to tender through CW an online printed copy of Business Day Newspaper of 15th November 2019, in which the Claimant granted interview in respect of Globus Bank, which he was a co-promoter.  Learned Claimant’s counsel raised an objection on its admissibility, on the ground that the said document is a public document and what was tendered was not a certified true copy of the document, as required by the Evidence Act. Learned Defendant’s counsel disagreed, and submitted that the said document is not a public document but mere online document, and cannot be classified as public document, where by its nature it is a computer-print out of an online generated document, despite being named a ‘newspaper’. Counsel further submitted that all that is required for its admissibility is compliance with conditions set out for admissibility of electronic evidence under S.84 Evidence Act, which was done by the certificate of compliance which accompanied it. More so, as the document is relevant, and therefore admissible. Replying on point of law, learned Claimant’s counsel submitted that S.84 Evidence Act did not exclude newspapers as public document, and urged the court to decline its admissibility. In a brief Bench Ruling, I invoked the provisions of Or. 3R.11(3)(b) of the Rules of this court, to differ the Ruling on the admissibility objection, and deliver same in the Judgment. The said document was admitted subject to ruling (SR) and marked as exh.CD1(SR). It is time to rule on the said objection.

21.        I have taken a closer look at the said document, and find that it is an online-generated document from a computer system. It is not a manual copy of a newspaper, and by its nature, falls squarely within the class of documents envisaged by the provisions of S.84 Evidence Act.  I have noted the variant of admissibility objection relating to electronic evidence as presented in the instant case, which is summed up in the reply on point of law by the learned Claimant’s counsel, to the effect that S.84 Evidence Act does not dispense with certification requirement of public document under S.104 Evidence Act. In my view, such legal issue can only arise where the document is not classified as electronic evidence, given the distinguishing feature of electronic evidence as neither being primary or secondary documentary evidence as envisaged under Ss.85-91 Evidence Act. To my mind, the essence of S.84 Evidence Act is to have a specialist approach to admissibility of any document falling in the class of electronic evidence, and such dispenses with any other requirement for admissibility. Thus, once a document is properly classified as electronic evidence (computer-generated) and meets the conditions set out under S.84 (1)(2)-(5) Evidence Act, that suffices for its admissibility. I so hold. On that note, having noted that the said document sought to be admitted is a copy of an online-domiciled/computer-generated document and accompanied with certificate of compliance pursuance to S.84 Evidence Act, the said objection on its admissibility is hereby refused and dismissed. Same is admissible, and is hereby admitted as Exh.CD1, and would be so referred to in the course of this Judgment. I so hold.

Resolution of the Substantive Dispute:

22.        Going forward, I have reviewed the issues raised and canvassed by both counsel along line of the material dispute between the parties. I find them comprehensive, but with modification, to clearly bring to the fore the core contention underpinning the dispute. I have therefore harmonized and further broken down the issues raised and canvassed by both counsel into three succinct legal issues, which are: (1).Is exhibit C1 a valid document and constitutes proper evidence of the contract of employment between the parties? (2). Is it the Defendant or one Aluson Holdings S.A that is liable to pay the Claimant’s salary in the circumstance of the employment relationship? And (3). Given the facts and evidence led, is the Claimant entitled to the Reliefs sought?

 

 

 

 

 

23.        I observed in course of review of the  submissions of  both learned counsel, particularly that of counsel for the Defendant, that there seems to be a misconception of the placing and discharge of burden of proof  in civil trial, particularly as it concerns employment benefits claim, as in the instant suit. On that note, I would take a preliminary step to clarify the concept and application of burden of proof in civil adjudication applicable in the adversarial adjudicatory system of ours. To achieve a refined and justifiable evaluation of evidence on this matter by placing appropriate burden of proof on the deserving side, it is imperative to note the applicability of the basic principle of preponderance of evidential burden in civil adjudication, which has been enunciated in M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C as follows:

“.. In civil cases the burden of first proving the existence or non –existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party adduced evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleading have been dealt with. Thus, generally in civil cases the burden of establishing a case can be gleaned from the pleadings lie ultimately on the plaintiff since if no evidence is adduced he would lose his case. Therefore the burden of establishing the contrary would shift to the defendant who would have judgment given against him if nothing is said to rebut the evidence given by the plaintiff. Thus, the burden of proof in civil cases preponderates, and the court is expected to give judgment on the preponderance of evidence after placing the totality of the respective evidence adduced by the parties on an imaginary scale of justice, weigh them and find out which of the two is heavier before arriving at its decision”.

 

24.        S.136 (1) Evidence Act 2011 provides for placing of burden of proof as to particular fact, when it states: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”. S.136(2) goes ahead to state that: “In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively”.

 

25.        With these judicial and statutory prescription and exposition of the role sharing of burden of proof and extent of proof to discharge the burden in civil trial, it is no longer in doubt who has the onerous burden to prove particular fact and at least, that the burden of proof in civil litigation is never static, but preponderates depending on what material facts is in issue to be established to assist in advancing the case of the either side of the divide, as in the instant case. In Alhaji Aliyu Balogun v. Alhaji Shitttu Labiran [1988]3NWLR (Pt.80)66@84, the Supreme Court, per Oputa JSC, held that:

 â€œâ€¦when pleadings have been filed the onus is on the Plaintiff to prove the averments in his statement of claim and on the Defendant to prove what he averred in his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the imaginary scale mentioned in Odofin & Ors. v. Mogaji & Ors. [1978]1 L.R.N 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates”.

 

26.        Consequently, if after the court performs the preponderating of the imaginary scale weighing the parties’ pleadings and evidence, the court finds that the extracted evidence weighs in support of the Claimant, then the reliefs claimed would be reviewed and granted as appropriate in the circumstance of the case. Having gone thus far, it is time to consider the Claimant’s Reliefs (earlier reproduced in the body of this judgment).

 

27.        On Issue (1) - If exhibit C1 is a valid document and constitutes proper evidence of the contract of employment between the parties: The Defendant and its counsel had called into question the validity and appropriateness of use of exh.C1, as the governing contract of employment between the parties, which the Claimant had based his employment relationship and terms of the employment with the Defendant. The contention against exhibit C1 is that it was improperly procured, and not backed by a Board Resolution approving same or Minutes of Board Meeting wherein its approval was made. And that the Board approval (exh.C7) which the Claimant relied on, was made at the Board Meeting held on 8th August 2018, which was several months after the commencement of the employment relationship in 2016. Learned Defendant’s counsel had, in Paras. 3.5.0 of his Final Written Address, hotly challenged the validity of the exh.C1, contending that it “was unilaterally authored by the Claimant and two other nominee directors of Alucon S.A”, in that “the  Claimant conspired to have exhibit C1 prepared and authored in anticipation of litigation”, thereby casting doubt on the validity and evidential weight of the said exhibit.  

 

 

 

 

 

 

28.        The Claimant did not agree, but explained that the contract of employment (exh.C1) was duly executed by the parties, and that there was even a subsequent Board Meeting wherein the issue of remuneration was raised and approved as contained in the same contract of employment (exh.C1). Claimant had relied on the email exchanges by the Board Members forwarding the Minutes of Board Meetings on the issue, as shown in exhibits C5-C9, to buttress his assertion.  

 

29.        There is no doubt that such allegation by the Defendant against the validity of exh.C1 is very serious and requires more than mere counsel submission and bare averments in pleadings and testimony without concrete evidence at trial. The crucial question is, has the Claimant shown that his employment as Managing Director was properly procured and done in a usual course of employment process, and not tainted by impropriety? In other words, did the Defendant employ the Claimant as Managing Director and executed contract of employment with him? That to me, is the onerous burden of proof dangling on the Claimant’s head, and once such burden is discharged, the evidential burden of establishing any illegality/fraud around the said contract of employment shifts and indeed, rests squarely on the head of the Defendant, being the party who alleged same. And who is expected to discharge the burden of the allegation (in nature of crime), in the standard required when criminal allegation is raised in civil claims, which is no longer on balance of probability but beyond reasonable doubt. See: Nwobodo v.Onoh (1984) 1All NLR 1, (1984) 1 SCNLR1 and Omoboriowo v. Ajasin (1984)1SCNLR 108, wherein the same panel of the Supreme Court Justices decided the fate of two Governors relying on the same set of incident differently, because in one, the pleadings introduced criminal allegations, which in law is required to be proved beyond reasonable doubt rather than balance of probability required in civil trial.

 

30.        From the record, although the Defendant did not deny that the Claimant served as its Managing Director, entitled to remuneration, yet it challenged the only document that evidences such employment, which is the exh.C1, tendered by the Claimant, which contains the terms of employment giving rise to his claims in this suit. The Defendant, on its part, did not tender any exhibit to show the contract of employment by which the Claimant was appointed a nominee Director representing one Aluson Holding S.A company, and the accompanying terms of his appointment as the Managing Director of the Defendant Company. Neither did the Defendant provide any evidence to back up its allegation of how the said Contract of Employment (exh.C1) was procured improperly and tainted with fraud and made in anticipation of litigation as alleged. I find that this evidential burden on the Defendant remains undischarged, contrary to the provision of S.136 (1) Evidence Act 2011, that: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”.   

 

31.        I have taken a deeper look at the exh.C1. It is titled Contract of Employment, between First Aluminum of Nigeria Plc and Elias Igbinakenzua. It was made on 26th day of February 2017, and executed on behalf of the First Aluminum Nig. Plc by the Chairman and Vice Chairman (Maryam Y. Bashir and T.S Ogbomo, respectively) of one part and Elias Igbinakenzua, of the other part.  I find no contract-vitiating-element on this exhibit. I therefore find same to be valid and capable of being ascribed with appropriate evidential weight, being also relevant in resolution of the material dispute between the parties herein. I so hold. 

 

32.        The Defendant and its counsel also forgot that what is in dispute between the parties borders on employment claims, and all that is required of a Claimant is to show evidence of employment relationship. As such, the employment contract does not derive its validity from any Board Resolution approving the remuneration, as long as the said contract of employment has made clear terms relating to remuneration and other conditions of employment, as in the instant case. Corporate law would also treat such issue as an in-door management matter under the old English case rule in Royal British Bank v. Turquand (1856)6E&B 327, which would not affect a third-party employee.

 

33.        In that circumstance, I note that garrulous energy was needlessly vented by both counsel on the twirling arguments over Board approval of the terms of contract of employment already executed by the Defendant Company as an employer, and the Claimant as an employee. In S.S GMBH v. T.D Ind.Ltd [2010] 11NWLR (Pt.1206) SC589 @P.626, Paras. G-H, the Supreme Court emphatically held that: “A document signed by a party has a binding effect on him”. In my view, the gamut of the legal submissions posited by the learned Defendant’s counsel, relying on a host of authorities inclusive of the provisions of Companies and Allied Matters Act (CAMA) and that of the learned author of corporate law textbook (Essentials of Corporate Law practice in Nigeria: Nelson C.S Ogbuanya (my humble self), would have been appropriate, in absence of exh.C1, which is a document  evidencing the employment relationship of the parties, with its clear terms on remuneration of the Claimant as Managing Director of the Defendant company.

34.        To that effect, I find as misconceived, all such legal submissions canvassed by the learned Defendant’s counsel, placing extraneous condition of Board approval before validity of the contract of employment (exh.C1), despite its being duly signed by the parties. Accordingly, same is hereby discountenanced along with myriad of authorities cited and relied on thereto. I so hold.

 

35.        On Issue (2) - If it is the Defendant or one Aluson Holdings S.A that is liable to pay the Claimant’s salary in the circumstance of the employment relationship: In disputing the validity of the said contract of employment and the Claimant’s entitlement to his claims against the Defendant, the Defendant had also contended that it is one Aluson S.A company that is liable to pay the Claimant, since he served as a representative Director and its nominee in the Defendant’s Board. And any payment to the Claimant would amount to double payment, since he ought to be receiving his main salary from the said Aluson SA, as the Defendant is only obligated to pay the Claimant’s local salaries/stipends as monthly allowance, which has been regularly paid to the Claimant by the Defendant. This is the crux of the Defendant’s defence as averred in Paras.4 and 5 of the Defendant’s Statement of Defence and in the testimony of DW (the current MD of the Defendant Company) in Paras.4-11 of his Statement on Oath deposed to on 24th September 2020, and adopted at the trial  as his evidence-in- chief, for the Defendant. DW tendered some exhibits in support of the Defendant’s contention: NOTAP Letter of registration of the Defendant’s Contract with Aluson S.A (exh.D1) and monthly Payroll and accounting extracts of the Defendant and payment vouchers (exhs.D2-D4), showing payment of local salary/stipend payments to the Claimant.

 

36.        I have taken a closer look at the said NOTAP Certificate of Registration of No.CR 00550 dated 17th January 2014, in respect of Technical Know-How Agreement between Alucon Holdings S.A and First Aluminum Plc (exh.D1). I am unable to find anywhere the obligation to pay main salary of the Claimant as Managing Director of the Defendant Company was stated therein, and indicated to be borne by the said Alucon Holdings S.A. The said Technical Know-How Agreement covered by the said NOTAP registration certificate was not also frontloaded and tendered at the trial, to beam brighter light on the vexed issue of who is responsible for payment of the Claimant’s main remuneration as the Managing Director. May be it was a huge omission or deliberate strategy. But then, in Lufthansa German Airlines v. Ballanyne [2013] 1NWLR (Pt.1336) CA 527, @ P.549 Para.A, it was held that: “A party that relies on the contents of a document to establish his case has a duty to produce the original of the document before the court”. Or at least, in my view, tender a photocopy as secondary evidence thereof. Surprisingly, I find that the contents of the said document of appointment of the Claimant as a nominee Director representing Aluson Holdings SA, who was said to be responsible for the Claimant’s remuneration, purportedly relied on by the  Defendant was neither exhibited or tendered in any form, either original or photocopy.

 

37.        Again, if the Defendant wanted the said Aluson S.A to be involved in this suit, it could have applied that it be made a Co-Defendant or come in through a Third-Party proceedings or as Defendant’s Witness. None of these judicial steps was taken, yet the Defendant wants to involve a person who is not sued by the Claimant. At the end, I find that the said Aluson SA has no legal presence and remains a stranger in this suit. I so hold.

 

38.        From the foregoing state of the record, I have formed an irresistible view, that the dispute herein is purely between the Claimant and the Defendant, and no any other third party, (such as one Aluson Holdings S.A), is directly involved with regard to any liability that may be established in the Claimant’s claims against the Defendant herein. I would proceed along that line in resolving issue (3) dealing with the reliefs sought for by the Claimant.  I so hold.

 

39.        On Issue (3) - Given the facts and evidence led, if the Claimant is entitled to the Reliefs sought:  The Claimant is seeking for a total of nine (9) substantive reliefs, numbered (1)-(9), some of which were proliferated, being mere summation of proposed entitlements upon success of earlier claims , such as reliefs (5) and (6).  That anomaly also led to the error in calculation of the actual sums due even if the claims succeed as at it were. The Claimant had attempted to amend his processes after conclusion of hearing and the matter reserved for Adoption, vide a Motion on Notice dated and filed on 16th November 2020. The said Motion for Amendment was however struck out as withdrawn by the Claimant’s counsel at the Adoption proceedings of 16th February 2021, leaving the court with the task of ascertaining the actual amount due based on how far the Claimant could establish his claims.

 

 

 

 

 

 

 

40.        Learned Defendant’s counsel had in his Written Address, vociferously challenged the Claimant’s claims, arguing that the claims, being in the nature of special damages were not established with evidence led on detailed particularity of claims, as required by law for special damages. And also, that the claims were riddled with material contradictions. Counsel also queried why the claimant would unilaterally impose an exchange rate of N450 to one USD. Defendant’s counsel, citing and relying on a host of authorities, particularly Obasuyi & Anor v. Business Ventures Ltd (2000)LPELR-2155(SC), contended that the Claimant failed to meet the standard of proof for claims based on special damages, and urged the court to dismiss the suit as lacking in merit.

 

41.        I agree with the learned Defendant’s counsel, that the Claimant ought not to impose a unilateral exchange rate between Naira and US Dollars, in respect of the sums claimed as due to him from the employment contract.

Also, as earlier resolved in issue(1), I have taken the position that exh.C1,  being the contract of employment executed by the parties, forms the governing contract to be interpreted and applied in resolution of the dispute between the parties herein. In Linto Ind. Trading Co. (Nig) v. S.C.B.N [2015]4NWLR (Pt.1448)94 @ p.112, paras. C-G, the court held that: “parties to an agreement or contract are bound by the terms and conditions of the contract they signed and the primary duty of the court is restricted to interpretation and enforcement of the terms of the contract as agreed by the parties thereto…” See also: Ihunwo v. Ihunwo [2013] 8 NWLR (Pt. 1375) S.C.550 @ 583, Paras.E-G; U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C.

 

42.        Even a cursory review of the exh.C1 would reveal the terms of the employment contract underpinning the dispute between the parties, and obviate any contradictions or imputations regarding its terms. The Exh. C1 dated 26th February 2017 created in Clause 3.1, a fixed tenure employment contract between the Claimant and the Defendant. It reads: “The Executive’s employment, which shall be in accordance with this terms of this Agreement, shall commence on February 1, 2017 and continue till a date no later than February 28, 2019 inclusive of a period of notice or Garden Leave or until terminated by either party in accordance with Clause17, whichever occurs earlier”.  By the Clause 3.1, the duration of the employment contract is therefore, from February 1 2017 to February 29, 2019.

 

 

 

 

43.        I find as common ground between the parties that the Claimant worked out the duration period of the contract from Feb.2017 to Feb.2019, a period of two years and one month, making 25 months. The Claimant’s Remuneration is also set out in Clause 9, which provides that -

“9.1 The Executive’s gross salary shall be paid as follows:

9.1.1 The Naira equivalent of $120,000 (one hundred and twenty thousand United States Dollars) at NAFEX rate; and

9.1.2 The sum of N6, 000,000.00 (six million Naira) will be payable monthly in arrears subject to the deduction of any sums already paid to the Executive by the company,

9.1.3 In no event shall the amount payable to the Executive, for the entire Term as detailed in Clause 3.1 which is inclusive of any Garden Leave, exceed the equivalent of $220,000 (two hundred and twenty thousand United States Dollars) at the prevailing NAFEX exchange rate”.

 

44.        On that basis, I would consider the Claimant’s Reliefs. The Relief  (1) is for “The sum of N112,500,000 (one hundred and twelve million, five hundred thousand naira) only being the equivalent of the sum of $250,000 (two hundred and fifty thousand dollars) only being the Claimant’s basic salary for 25 months as Director and Managing Director calculated at the exchange rate of N450 to $1.00”.  Claimant had pleaded and led evidence relying on the exh.C1 to ground his claim for Naira equivalent of $250,000 being his gross (annual salary) for two years her served as the Managing Director of the Defendant Company. Defendant had opposed this relief, mainly on the ground that it contradicts the later part of the same exh.C1 ( Clause 9.1.3) which limited the amount payable to the Claimant to the sum not more than “equivalent of $220,000 (two hundred and twenty thousand United States Dollars) at the prevailing NAFEX exchange rate”.  Counsel had cited and relied on the Supreme Court case of AG Enugu State v. Avop Plc [1995] 6 NWLR (Pt.339), to the effect that a party who has tendered a document and admitted as exhibit cannot disassociate from a portion of the document and associate with the other portion of the same document. He sinks or swims with it throughout the litigation. That’s trite, I agree! 

 

45.        There is no doubt that the provisions of Clause 9.1.3 directly clashes with Clause 9.1.1.  Going forward, in my view, the intention of Clause 9.1.3, is to place a ceiling on amount payable in the Dollar-denominated remuneration, by placing it to a sum not more than $220,000 for the 2 year-fixed tenure contract of employment for the Managing Director, given that he is also entitled to other remuneration denominated solely in Naira, as in Clause 9.1.2.

 

46.        To that effect, it seems to me that since the Claimant is not allowed to pick and choose any portion (clauses) of the exh.C1, he is bound by the terms, which is to limit his claims for USD-denominated remuneration to a sum not exceeding $220,000.  The Clause 9.1.1 provides for gross salary of $120,000 x 2 years which the Claimant worked, which would amount to the sum of $240,000 (not $250,000 as claimed by the Claimant). On that note, the established amount is $240,000 which exceeded the upper limit of USD remuneration pegged at $220,000 in line with Clause 9.1.3 of the exh.C1. More cannot be awarded. I so hold. In the circumstance, Relief (1) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of $220,000.00 (two hundred and twenty thousand US Dollars or its Naira equivalent at prevailing NAFEX rate, being the maximum amount payable to the Claimant for his two-year gross salary as Managing Director of the Defendant Company. I so hold.

 

47.        The Relief (2) asks for “The sum of N150, 000,000.00 (one hundred and fifty million naira) only being the Claimant’s monthly allowance for 25 months as Director and Managing Director”. The Claimant pleaded and relied on Clause 9.1.2 to establish this relief, which states that the Claimant is entitled to the sum of N6, 000,000.00 (six million Naira),  payable monthly in arrears subject to the deduction of any sums already paid to the Executive by the company.  The Defendant had contended that the Claimant owed the Defendant as per cash advance in excess of N9, 745,230, which the Claimant was yet to reimburse. Claimant swiftly denied any such indebtedness and joined issues with the Defendant, and narrated in his para.16 of the Further Witness Statement on Oath on 25th September 2020, deposed as follows: “That I am not owing the Defendant any cash advances in excess of N9,735,230 (nine million seven hundred and forty- five thousand, two hundred and thirty naira) as alleged or at all and puts the Defendant to the strictest process thereof. The Claimant further avers that the said sum was my board allowances, travel allowance, security allowance and other allowances due to me as a Director and not as a managing director, paid into the Claimant’s personal account with the Defendant and the sum received was the drawings from that account”. 

 

48.        The Claimant having not denied the said sum but made averments justifying receiving such sums as allowances, it had set a stage for further probe by the Defendant at the trial. Surprisingly, during cross-examination, no question was put by the learned Defendant’s counsel, to test the veracity of the Claimant’s assertion. Anyway, as burden of proof in civil trial is not static but preponderates and shifts between parties, and rests on a party who should lose if no further evidence is led on an alleged particular fact in dispute, (See: M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C), I find that the Defendant could not establish the set-off which it intended by raising issue of counter-part debt against the Claimant.  It did not also counter-claim.

 

49.        From the record, I find another defence set up by the Defendant to the effect that the Claimant engaged in misappropriation of funds, displayed truancy, and was involved in absenteeism in critical times of managing the Defendant Company, including consistent failure to perform his executive and managerial functions and refusal to attend the company’s Annual General Meeting. To buttress this assertion, DW tendered the Attendance Book, admitted and marked as ‘exh.D5’, and also, the online copy of Business Day Newspaper of 15th November2019, containing the Claimant’s interview on floatation of Globus Bank, admitted after overruling admissibility objection and marked as ‘exh.CD1’.  

 

50.        With the magnitude of the alleged infractions and dereliction of duty alleged against the Claimant, albeit at litigation stage, which invariably amounts to misconduct, a disciplinary measure including termination of the employment could be expected. Nevertheless, I find no evidence of any query or any disciplinary step initiated against him, which is a prerogative of an employer who finds an employee wanting in discharge of duties or engages in workplace indiscipline/misfeasance. From the record, during cross-examination of DW, when asked in “Q.9: Tell the Court if the Defendant ever queried the Claimant on the alleged absence from work and other misconducts alleged against him?” His answer, “A: I cannot recall any query issued to him”.

 

51.        Being that it is also within an employer’s disciplinary ambit over its erring employee to condone any indiscipline, I take the view that such alleged misconducts, which were not even established at trial, have been condoned. And so,  it is too late in the day for the Defendant to complain of any of such misconducts attributed to the Claimant, without previously and prior to this suit, initiated any disciplinary measure including invoking termination, as stipulated in Clause 17.4 (a) of the contract of employment (exh.C1), that: “The company may however terminate this Agreement with immediate effect without notice or payment in lieu of notice if the Executive: (a)- commits any act of serious misconduct (including but not limited to dishonesty) in the course of his employment or repeats or continues (after written warning) any other serious breach of his obligations under this Agreement”.

 

52.        To my mind, such alleged infractions aimed at affecting the Claimant’s earned remuneration while in service of the Defendant, cannot at this stage, without more, defeat the said entitlements. I so hold.

 

53.        Learned Defendant’s counsel had also argued that the Claimant failed to discharge the onus of proving that he was not paid his salaries and entitlements by the Defendant. Counsel submitted that the Defendant ought to have tendered his bank statement of account in proof of the fact that none of his entitlement was credited to his account. Counsel submitted that “no single document was tendered by the Claimant to show that the Defendant owes him salaries or is indeed indebted to him howsoever”. Citing and relying on Ogheneochuko Pedro v. Ascot Flowlines Limited & Anor (Suit No.LA/444/2017), to the effect that failure to tender his bank account is fatal to the Claimant’s case, learned counsel urged the court to so hold that the Claimant has the burden of proof and has failed to discharge same.

 

54.        Having earlier in this Judgment done an exposition of the interplay of parties’ burden of proof in civil litigation, I would however, not  subscribe to this submission, which tends to misplace burden of proof in civil claims, particularly employment-related civil claims, as in the instant suit. I had dealt with similar scenario in Fatai Oyekunle v. Abel Sell Ltd & Anor (Suit No. NICN/LA/189/2016, Judgment delivered on January 11, 2019, per Ogbuanya,J), in which, after reviewing submissions of counsel, it was held @ P.8 , thus: “In my considered view, the issue as to payment or non-payment of salary where employment relationship is already established is a particular fact, which imposes evidential burden of proof on the employer, being a party though not bearing the general burden of proof, but would fail if no evidence is led to establish the controverted fact of payment of salary. See: S.136 (1) (2) Evidence Act 2011; M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058) CA451@ 492-493 Para.G-C. On that note, although the Claimant has a general burden of proof to establish his claims, nevertheless, as the burden of proof in civil trial is never static but preponderates, I hold the view that it is the duty of the employer (like a debtor) to establish how a disputed payment of salary was made to an employee who denies receiving due salary at workplace or justify why the salary is withheld”.

 

 

 

 

 

 

55.        I have no reason to tamper with my rationalized views therein. I therefore, adopt same position herein, being strengthened by the evolving preponderance of burden of proof in employment contract claims; a variant of civil trial, involving dispute of earned entitlement, as in the instant case. To that end, I have come to the considered view that, where there is a dispute as to payment of entitlement captured in the employment contract, such as exh.C1, in the instant suit, once an employee-Claimant establishes the employment relationship and how he earned the accompanying entitlement, the evidential burden of how the said entitlement was paid becomes that of the employer-Defendant. Thus, upon the Claimant’s discharge of his burden to establish the employment relationship and how the entitlement was earned, the burden shifts to the Defendant (an employer), who has the duty/ evidential burden to establish how the remuneration/entitlement of the Claimant (an employee) was paid, and is at liberty to make relevant averments in defence and tender any evidence in proof thereof.  I so hold.

 

56.        On that note, contrary to what the learned Defendant’s counsel would want the court to endorse, to the effect that failure of the Claimant to produce and tender his bank account statement would affect his case, I think otherwise, and so hold. On the other hand, I find no evidence from the record, of how the Defendant paid to the Claimant the said remuneration as stipulated in Clause 9 of the said contract of employment, which gives credence to the case of the Claimant. I do not also agree with the submission of the learned Defendant’s counsel suggesting that since the Claimant as the Managing Director of the Defendant Company did not pay himself his owed entitlement, he has lost same, as I am not persuaded by any authority to that effect.

 

57.        Accordingly, Relief 2 succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N150, 000,000.00 (one hundred and fifty million naira) only being part of the Claimant’s entitled remuneration as Managing Director of the Defendant in the sum of N6, 000,000.00 (six million naira) payable monthly for 25 months, in line with Clause 9.1.2 of the employment contract (exh.C1). I so hold.

 

 

 

 

 

58.        The Relief 3 seeks for “The sum of N9,000,000.00 (nine million naira) only being the equivalent of the sum of $20,000 (twenty thousand dollars) only being his BUPA Medical Insurance for 25 months calculated at the exchange rate of N450 to $1.00”. The Defendant vehemently opposed this relief. Learned Defendant’s counsel had in paras. 3.3.3 of his Final Written Address, stoutly contended that Clause 11.1(c) of the exh.C1, which gave rise to the claimant “depicts that Bupa medical insurance was only payable as reimbursement in the event that the Claimant took a British United Provident Association Ltd medical insurance”. Counsel further contended that, “it therefore follows that since the Claimant woefully failed to present before this Court or to the Defendant any proof or shred of evidence that he took out a BUPA insurance, he cannot be entitled to any reimbursement or any sum whatsoever in lieu of the BUPA medical insurance“. Counsel cited and relied on MV Western Star & Ors. v. B.L Lizard Shipping Co Ltd (2013) LPELR-21470(CA); CBN v. Okojie [2015]14NWLR (Pt.1479)252, para.E-F,  to the effect that ‘he who asserts must prove’ , and ‘pleading without evidence to prove the facts averred is of no use in settling a dispute one way or the other”, respectively.

 

59.        Both parties had joined issues on this relief and stoutly maintain their respective standpoint, for and against. Incidentally both counsel relied on the same document, the exh.C1, to buttress the position of either party they represent. Clause 11.1(b)(c) of the exh.C1, deals with provision of insurance as part of other benefits/entitlement of the Claimant. It reads: “11.1 During the Appointment, the Executive shall be entitled to: (b) be a full beneficiary under the Company’s medical insurance scheme ( or such other plan or scheme as the Company may decide is preferable) and for his spouse and dependent children (under the age of 18) to be members at the Company’s expense; (c ) in event that the Executive has already undertaken his own medical insurance under BUPA or such as has been stated above in Clause 11.1(b), the Company will reimburse the Executive up to the sum of $10,000 (ten thousand Dollars) only per annum”.

 

60.        By a community reading of the insurance benefit stipulated in Clause 11.1(b) and (c) of the employment contract (exh.C1), the Claimant is entitled to any insurance scheme that may be set up by the Defendant Company or BUPA insurance scheme or a reimbursement if he had set up his own insurance under BUPA or was not provided full cover for himself and his family (ie spouse and dependent children (under the age of 18).  In other words, the Claimant is first and foremost entitled to full medical insurance cover with his said family at the Defendant Company’s expense, and if the insurance cover is not provided or that the Claimant had undertaken his own BUPA insurance, he is entitled to reimbursement up to the sum of $10,000 per annum.  That means that the value of expense of medical insurance is to be borne by the Defendant up to the tune of $10,000.00 per annum, if the Defendant did not provide the Claimant with the full cover with his family.

 

61.        Following from my earlier exposition of the role-sharing of burden of proof and extent of proof to discharge the burden of proof in civil trial, particularly as it concerns employment claim involving entitlement dispute, it is no longer in doubt that such burden of proof is never static, but preponderates, depending on what material facts is in issue to be established to assist in advancing the case of the either side of the divide. In the instant suit, I find that the evidential burden as to the obligation to provide the Claimant a full medical insurance scheme is that of the Defendant, and if not shown to have been provided as stipulated in the employment contract, (either because the Claimant had taken up his own BUPA insurance) the Defendant is liable to pay the Claimant, the value of the supposed insurance scheme to the tune of $10,000 annually. There lies the burden of proof and basis of liability of the Defendant if the evidential burden is not discharged.

 

62.        In the circumstance, having x-rayed the Claimant’s entitlement to medical insurance scheme as part of his benefits under his employment with the Defendant Company, I hold the view that the burden of proving that there was medical insurance scheme provided and utilized by the Claimant lies on the Defendant. From the record, during cross-examination of DW, he was asked in “Q.16: On BUPA Health Scheme, you stated in your evidence that the Defendant provided health scheme through an HMO for all its employees. Do you have any document to show that the Defendant provided the Health scheme?” His answer “A: The company provided Health services for all its employees”. DW did not mention any such insurance provided or the said HMO.   On that note, I find that the Defendant did not establish its burden that the Claimant had taken the full benefit of the medical insurance scheme, which the Defendant has a duty to provide.

 

63.        Learned Defendant’s counsel had posited that the entitlement is based on reimbursement of medical insurance scheme undertaken by the Claimant, and having not provided evidence of the expense incurred under the BUPA scheme, he is not entitled to the money value stipulated in the contract. However, from the tenor of the Clause 11.1(b) (c) of exh.C1, it is not a mere ‘reimbursement scheme’ but a recoverable entitlement for failure to provide the Claimant with the medical insurance as stipulated by the parties’ contract of employment. I so hold. 

 

64.        Accordingly, Relief 3 succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of $20,000.00 (twenty thousand USD)  being the value of medical insurance scheme which the Claimant was entitled to while he served as the Managing Director of the Defendant Company for two years at the rate of $10,000.00 per annum. I so hold.

 

65.        The Relief 4 is asking for “The sum of N8,458,333.33 (eight million, four hundred and fifty-eight thousand , three hundred and thirty-three naira, thirty-three kobo) only being the monetized value of Honda CRV amortized over the period of 5 (five years) and pro-rated over the period of employment (25 months) being the Claimant’s Official Vehicle allowance as Director and Managing Director”.  The Defendant vigorously opposed this relief, contending that it was not proved as special damage and the evidence presented in support by the Claimant is riddled with contradictory, as exh.C2 put the value of the Honda CRV at N8, 458,333.33, while exh.C4 put it at N35, 000,000.00.  Citing and relying on the authority of Zakirai v. Muhammad & Ors (2017) LPELR-42349 (SC), learned Defendant’s counsel submitted that both exhs.C2 and C4 are unreliable and contradictory, and should be expunged. Incidentally, both exh.C2 and C4 are documentary evidence emanating from the same party, the Claimant. Both cannot stand together on the issue of the value of the said Honda CRV car, which the 5 year-amortization value is the crux of this relief. I find that the evidence presented in support of this claim is riddled with apparent contradiction on core issue of the value of the Honda CRV, which would pose evidential difficulty to sustain the relief herein.

 

66.        I agree with the submission of the learned Defendant’s counsel that this Claim being riddled with documentary contradiction of two exhibits by the Claimant is not proved, as it is not sustained by credible evidence required to establish such claim in favour of the Claimant. In the circumstance, this Relief 4 fails, same is hereby dismissed. I so hold.  

 

67.        Reliefs 5 and 6 are to be taken together as they tend to be an erroneous calculation of the proposed sum total of the claims involved in the other reliefs, particularly Reliefs 1-4.  Learned Defendant’s counsel had pointed that the two Reliefs are ‘highly amorphous, proliferated and overlapping’, which is not best practice of drafting claims for civil trials, citing and relying on Ugo v. Obieke & Anor [1989]1NWLR (Pt.99)566, per Niki Tobi, JCA (as he then was).  I agree with the submission of the learned Defendant’s counsel, as I find them inappropriate. Same are hereby discountenanced. I so hold.  

 

68.        Another aspect of the Reliefs 5 and 6 is the request for payment of pre-judgment interest at the rate of 10% on the total sums claimed. For the Pre-Judgment interest claim, the critical question remains, is the Claimant entitled to award of Pre-Judgment interest in the circumstance of this suit and was it proved as required by law? I had held the view in Alh.Saleh Buba v. Adamawa State University Consultancy Services Ltd (Suit No. NICN/YL/02/2017, Judgment delivered on May 17 2018, per Ogbuanya, J.), that where the Claimant fails to make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages, which is required to not only be specifically pleaded but to also provide sufficient evidence to ground its award, the claim for pre-judgment interest cannot be sustained. In Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para.F, the Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I find that the Claimant based the relief on an erroneous total sum due, and did not explain out the basis of fixing the period of June 2019-June 2020 as interest yielding period, which is fatal to the success of this relief which ranks as special damages, as rightly submitted by the learned Defendant’s counsel. The claim for pre-judgment interest having not been proved is refused. Accordingly, this aspect of the Reliefs 5 and 6 also fails.

 

69.        On the whole, Reliefs 5 and 6, being proliferated and the pre-judgment interest part not proved, are hereby discountenanced and dismissed, respectively. I so hold.

 

70.        Relief 7 seeks for “The interest on the Judgment sum at the rate of 21% (per cent) per annum from the date of judgment till the full payment of the judgment sum”. On claim for post-judgment interest, in West African Cotton Co. Ltd v. Oscar Amos ( Suit No. NICN/YL/10/2015, Judgment delivered on June 13 2018, per Ogbuanya, J.), I took the position that award of post-judgment interest is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case, and it would be presumptuous, speculative and role-swapping, for a party to fix the rate of post-judgment interest claimed. Same is also discountenanced. Consequently, Relief 7 being misconceived fails, and is hereby discountenanced and dismissed. I so hold. I will however, in the course of the Judgment consider award of post-Judgment interest as appropriate in line with the Rules of this Court. I so hold.

 

71.        The Claimant in Relief 8 asks for “Exemplary damages at the sum of N50, 000,000.00 (fifty million) only”.  It was contented for the Defendant that the circumstances of the Claimant’s suit does not warrant award of exemplary damages. I agree, as a relief bordering on exemplary damages is punitive in nature and seeks to punish recalcitrant behaviour. I find that the suit herein borders on dispute between the parties mainly haggling over correct construction and application of entitlement clauses in the parties’ contract of employment.

 

72.        The Defendant having not been proved to have been involved in any reprehensible conduct is relieved of this relief, which is refused. Accordingly, the Relief 8 lacks in merit, and is hereby dismissed. I so hold.

 

73.        The Relief 9 is for “The sum of N5,000,000 (five million naira) only as cost of prosecuting this suit”. I find it suitable to consider award of cost solely in line with the provisions of the Rules of this Court, anchored on the principle of ‘cost follows event’. On that note, I will invoke the Rules of this court to anchor award of cost in this matter. Accordingly, Relief 9 succeeds to the extent that, in the circumstance of the suit, I award the sum of N500,000.00 (five hundred thousand naira) as cost in favour of the Claimant against the Defendant, pursuant to Or.55 Rules 1,4 &5 of the Rules of this Court. I so hold.  

 

74.        For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

1.             Relief (1) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of $220,000.00 (two hundred and twenty US Dollars or its Naira equivalent at prevailing NAFEX rate, being the maximum amount payable to the Claimant for his two-year gross salary as Managing Director of the Defendant Company.

 

2.             Relief 2 succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N150, 000,000.00 (one hundred and fifty million naira) only being part of the Claimant’s entitled remuneration as Managing Director of the Defendant in the sum of N6, 000,000.00 (six million naira) payable monthly for 25 months, in line with Clause 9.1.2 of the employment contract (exh.C1).

 

 

3.             Relief 3 succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of $20,000.00 (twenty thousand USD)  being the value of medical insurance scheme which the Claimant was entitled to while he served as the Managing Director of the Defendant Company for two years at the rate of $10,000.00 per annum.

 

4.             Relief 4 fails, same is hereby dismissed.

 

5.             Reliefs 5 and 6, being proliferated and the pre-judgment interest part not proved, are hereby discountenanced and dismissed.

 

6.             Relief 7, being misconceived fails, and is hereby discountenanced and dismissed.

 

7.             Relief 8 lacks in merit, and is hereby dismissed.

 

8.             Relief 9 succeeds to the extent that, in the circumstance of the suit,  N500,000.00 (five hundred thousand naira)  is awarded as cost in favour of the Claimant against the Defendant, pursuant to Or.55 Rules 1,4 &5 of the Rules of this Court.

 

9.             The sums of money awarded and due in this Judgment shall be payable to the Claimant by the Defendant within 2(two) months of this Judgment, failing which it attracts 10% interest rate per annum until fully liquidated.

 

75.         Judgment is entered accordingly.

 

 

……………………………………..

HON. JUSTICE N.C.S OGBUANYA

JUDGE

14/05/21