IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE M

NOVEMBER 16, 2022                             

  SUIT NO: NICN/LA/491/2017

 

BETWEEN

MR. FRIDAY AMOS AKPAN…………………………………CLAIMANT

AND

1.     DATA SCIENCES NIGERIA LIMITED

2.     CHIEF DON ETIEBET                                      ……………        DEFENDANTS

3.     MR. ANIEKAN ETIEBET

 

REPRESENTATION:

R. Nzeteh Esq for the Claimant.

U.A Samson Esq for the Defendant.

 

JUDGMENT

1.0.           INTRODUCTION:

The Claimant commenced this action by a General Form of Complaint and Statement of Facts dated the 5th September but filed on the 10th October, 2017 together with the Claimant’s Written Statement on Oath dated 10th October, 2017 and the accompanying frontloaded processes in accordance with the Rules of this Honourable Court. By the Statement of Facts, the Claimant seeks the following reliefs against the 1st to 3rd Defendants jointly and severally, thus:

1.      A DECLARATION that the termination of the claimant’s employment by the 1st Defendant vide the 1st Defendant’s letter of termination of employment dated 31st of May, 2016 is wrongful by reason of the 1st Defendant’s failure to comply strictly with the terms and conditions of service of the claimant.

2.      A DECLARATION that the Claimant is entitled to full payment of his gratuity and other entitlements due and accruable to him under the 1st Defendant’s terms and conditions of service.

3.      A DECLARATION that the 1st Defendant is liable to the Claimant for damages for wrongful termination of employment.

4.      A DECLARATION that the Claimant is entitled to payment of his accrued pension rights and outstanding contributions by the 2nd and 3rd Defendants under the 1st Defendant’s staff benefit scheme inclusive of NSITF/NPF monthly contributions of N1,200.00 by employer and N1,200.00 by employee which the 2nd and 3rd Defendants wrongly deducted using the 1st Defendant as a cloak and with intention to defraud the Claimant of the funds, from the inception of the Claimant’s employment till the date of termination of his employment.

5.      AN ORDER of court compelling the 1st Defendant to pay the sum of N3,000,000.00 (Three Million Naira) to the Claimant as normal entitlements under its staff benefit scheme, gratuity and unremitted pension contributions.

6.      AN ORDER of court compelling the 1st Defendant to pay the sum of N10,000,000.00 (Ten Million Naira) to the Claimant as damages for wrongful termination of his contract of employment by the 1st Defendant.

7.      AN ORDER of Court compelling the 2nd and 3rd Defendants to pay to the Claimant his accrued pension rights and outstanding contributions under the 1st Defendant’s staff benefit scheme inclusive of NSITF/NPF monthly contributions of N1,200.00 by employer and N1,200.00 by employee which  the 2nd and 3rd Defendants wrongly deducted using the 1st Defendant with intention to defraud the Claimant of the funds using the 1st Defendant as a cloak, from the inception of the Claimant’s employment till the date of termination of his employment.

8.      The sum of N1,000,000.00 (One Million Naira) as cost of this action.

By leave of this Court, the Claimant brought Further Written Deposition on Oath of dated and filed the 15th January, 2018, additional witness in the name of Mrs Blessing Friday Amos, Additional List of Witness, Written Deposition on Oath of the additional witness dated 15th January, 2018, and Additional List of Documents dated and filed the 15th January, 2018 listing the Claimant’s Solicitors letter to Trustfund Pensions Plc dated August 30, 2017 and the Claimant’s Retirement Savings Account Statement with Trustfund Pensions Plc for the period between 11th December, 2000 to 11th December, 2017.

By a Memorandum of Appearance dated and filed the 25th October, 2017, the 1st Defendant entered an appearance while the 2nd & 3rd Defendants entered a conditional appearance to this Suit. The 1st – 3rd Defendants filed a Statement of Defence on same 25th October, 2017 wherein at paragraph 13 thereof the 2nd & 3rd Defendants raised a preliminary objection on ground of no cause of action against them. The Defendants accompanied the Statement of Defence with Written Statement on Oath by Mr. Mfon Nkantah on behalf of the 1st, 2nd and 3rd Defendants dated same date of 25th October, 2017 as well as a Counter Affidavit to the Claimant’s Statement of Facts and other frontloaded processes. Pursuant to Order II Rule 2 of the Rules of Court, the Defendants also filed Acknowledgment Indicating Documents to be Objected to, whereof the Defendants indicated that they shall not object to admissibility of all the documents filed by the Claimant herein.

Pursuant to the averment at paragraph 13 of the Defendants’ Statement of Defence, the 2nd and 3rd Defendants filed a Notice of Preliminary Objection dated the 27th October, 2017 but filed the 30th October, 2017 praying this Honourable Court to strike out their names from this Suit on the following grounds:

i.                    The 2nd and 3rd Defendants/Applicants were not parties to the purported contract of employment between the Claimant and the 1st Defendant.

ii.                 The Claimant’s case discloses no cause of action against the 2nd and 3rd Defendants/Applicants.

iii.               The Claimant’s action is meant to embarrass the 2nd and 3rd Defendants/Applicants.

iv.               The Honourable Court lacks jurisdiction to hear this matter against the 2nd and 3rd Defendants/Applicants

The Notice of Preliminary Objection is supported by Affidavit of 16 paragraphs and deposed to by one Mfon Nkantah, a Director of Administration of the 1st Defendant Company. It is accompanied with a Written Address wherein the Defendants distilled two issues thus:

i.                    Whether the 2nd and 3rd Defendants/Applicants were parties to the purported contract of employment between the Claimant and 1st Defendant?

ii.                  Whether the Claimant through this action should be allowed to embarrass the 2nd and 3rd Defendants/Applicants herein contrary to the provisions of Order 13 Rule 6(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017?

Furthermore, the Defendants also filed a further affidavit called a Reply to Claimant’s Counter Affidavit. It is of 6 paragraphs, dated, sworn and filed on the 22nd November, 2017 by one Mike Umonnan Esq, counsel in the Law Firm of the Defendants’ Legal Practitioners and accompanied with a Written Address wherein the Defendants further distilled a lone issue for determination thus:

Whether the Honourable Court is not entitled to strike out paragraphs 4, 6, 8 and 9 of the Claimant’s/Respondent’s Counter Affidavit the same being in contravention of Section 115(2) of the Evidence Act, 2011?

The Claimant reacted to the Preliminary Objection vide Counter Affidavit of 11 paragraphs dated, sworn and filed on the 13th November, 2017 by the Claimant’s Counsel of Ike Reagan Nzeteh Esq on record and accompanied with a Written Address dated 10th November, 2017 wherein the Claimant formulated a lone issue for determination of this Honourable Court, thus:

Whether the Respondent’s Statement of Facts disclose cause of action against the 2nd and 3rd Applicants to warrant their defence of this Suit?

2.0.           FACTS AS STATED BY PARTIES

The Claimant and the Defendants having joined issues on their pleadings, the Claimant called two witnesses in proof of his case. The Claimant testified as his first witness CW1 in this case. On the 16th January, 2018, CW1 adopted his Written Statement on Oath dated 10th October, 2017 as his oral testimony and evidence before this Honourable Court. The following documents pleaded by the Claimant were upon due identification by CW1 tendered and admitted in evidence through CW1 thus:

1.      Claimant’s Letter of Employment dated 20th September, 1993 by Obodex Nigeria Limited with Date of Employment commencing 1st October, 1993……Exhibit CW1B – CW1B2

2.      Claimant’s Letter of Confirmation of Appointment dated 27th September, 1995 by Obodex Nigeria Limited …………………………………………………………Exhibit CW1C

3.      Indefinite Suspension Internal Memo dated 20th September, 2014 by 1st Defendant……………………………………………………………………………..Exhibit CW1D

4.      A bundle of document headed Table of Content and containing Terms and Conditions of Service……………………………Exhibit CW1E – CW1E27

5.      Claimant’s Solicitors Letters dated 15th February, 2017 and 6th December, 2016 to the 1st and 2nd Defendants, together with Proof of Delivery………………..Exhibit CW1F – CW1F2 and CW1G respectively

6.      Claimant’s Trustfund Pensions Plc Certificate of Registration dated 9th May, 2007 …………………………………………………………………………………Exhibit CW1H

7.      Copies of NSITF Contribution Transfer Application Forms dated 24-08-2009 and 17-08-2009 ……………………………………………………………Exhibit CW1I – CW1I1

8.      Claimant’s Solicitors Further Demand Letter dated 21st June, 2017 to 1st , 2nd and 3rd Defendants, with annexure of Proof of Delivery ………….Exhibit CW1J – CW1J4

9.      1st Defendant’s Letter titled Salary Review dated 4th March, 2013 with effect from January, 2013 to Claimant showing his new Basic Salary and Full Salary as N15,400.00 and N35,712.00 respectively …………………………Exhibit CW1K

10. Letter of Termination of Employment dated 31st May, 2016 terminating Claimant’s service on grounds of gross misconduct with effect from 20th January, 2016………………………………………………………………………………Exhibit CW1L

On 18th October, 2018, CW1 adopted his Further Written Deposition on Oath dated 15th January, 2018 as part of his evidence in this case.

Under cross examination on 22nd November, 2018, upon being confronted with Exhibit CW1B, CW1 admitted that the name of the company that employed him in that letter is Obodex Nig Limited. CW1 said it was the company he started working with before the change to Data Sciences Nig Ltd and that the same person owns the company but that he cannot remember when the change of name was made. While CW1 admitted knowing Mr Dominic who worked with Obodex Nig Limited and Mrs Uwa worked with both Obodex Nig Limited and the Defendant, he said he does not know whether Mr Dominic still works with Obodex Nig Limited and he does not know whether Obodex Nig Limited is still in existence and never changed name and still operating Etiebet Palace. CW1 admitted he is aware and know that the Defendant is a big company having properties and that Obodex Nig Limited is equally a big company having properties.

Claimant’s 2nd Witness CW2 is Blessing Friday, the Claimant’s wife. She adopted her Written Deposition on Oath dated 15th January, 2018 as her oral testimony and evidence before this Honourable Court on the 22nd November, 2018. Defendants’ Learned Counsel elected not to cross examine the CW2, consequent to which she was discharged and the case of the Claimant was closed.

The Defendants opened their defence on the 4th December, 2019 and called a sole witness DW. DW adopted his Written Statement on Oath on behalf of the 1st, 2nd and 3rd Defendants dated 25th October, 2017 as his evidence in this case. Upon proper identification of the documents pleaded and testified about in his deposition, the Defendant DW tendered same and were admitted in evidence thus:

Exhibit D1: Claimant’s Wife’s Airtel Phone Number KYS Subscriber’s Data and SMS Log Print out

Exhibit D2: Copy of 1st Defendant’s Keystone Bank Cheque dated 28/07/2016 of Three Hundred Thousand Naira only issued to the Claimant

Under the fire of cross examination, DW admitted that the Claimant and not the Claimant’s wife was the one who worked with the 1st Defendant. DW answered that the date the 3rd Defendant received the alleged text message is in Exhibit D1. DW admitted that there is no evidence of the interrogation of the Claimant where he admitted that he sent the text message to the 3rd Defendant because it was not recorded. DW said the Claimant orally admitted before the Disciplinary Committee. DW testified that the 1st Defendant set up the Disciplinary Committee to hear the complaint against the Claimant. That the procedure adopted by the Committee was oral. That he does not know whether the message was sent by the Claimant’s wife or whether the Claimant had left the house at the time the message was sent, but that all he knew was that the Claimant admitted sending the message.

DW was confronted with Exhibit CW1E – CW1E27 and after reading Clause 20.5 thereof testified that the offence of the Claimant forms part of the offences stated therein. Also, upon reading Exhibit CW1L, DW testified that the 1st Defendant’s Staff Benefits are many and are in the conditions of service. DW also testified that what he saw at paragraph 18.3(d) of Exhibit CW1E19, which contains the formula for computation of the employee benefits when employment is terminated, is not what is obtainable in the 1st Defendant’s company. That is the defence of the Defendants in this case.

3.0.           ARGUMENTS ON THE PRELIMINARY OBJECTION

This Honourable Court heard the Notice of Preliminary Objection during the trial of this suit and reserved Ruling on same to be delivered together with this Judgment.

Learned Counsel for the Defendants moved and argued the Notice of Preliminary Objection at the proceedings of 30th November, 2017. Learned Counsel relied on all the depositions in the Affidavit in Support as well as the Further Affidavit and adopted the Written Address as well as the Reply on Points of Law as his oral argument and legal submission to urge this Honourable Court to strike out the names of the 2nd and 3rd Defendants for failure of disclosure of any cause of action against them in this case. In adumbrating, Learned Counsel contended that paragraphs 4, 6, 8 and 9 of the Claimant’s Counter Affidavit contain legal arguments and conclusions in flagrant violation of Section 115(2) of the Evidence Act, 2011. Learned Counsel also raised legal issue as contained in Order 13 Rule 6(2) of the Rules of this Honourable Court.

On the provision of Section 12 of this Court establishment Act, Learned Counsel referred to Section 13 thereof which is to the effect that law and equity must be administered concurrently. Learned Counsel submitted that the issue with those paragraphs is not about making reference to law but that they contain legal arguments and conclusions. Learned Counsel contended also that the Supreme Court authority cited and relied on by the Claimant’s Learned Counsel amounts to ambushing the Defendants since the Claimant did not supply it in the Claimant’s Written Address. Learned Counsel urged the Court to disregard the submission.

Claimant’s Learned Counsel vehemently opposed the Notice of Preliminary Objection. Learned Counsel relied on all the paragraphs of the Counter Affidavit and adopted the Written Address contemporaneously filed with same as his oral argument and legal submission to urge this Honourable Court to dismiss the Application. In adumbrating, Learned Counsel argued that the 2nd and 3rd Defendants used the 1st Defendant to refuse to pay the Claimant his entitlement. Learned Counsel relied on Alade v Alic Ltd (2010) 19 NWLR (Pt 1226) 111 at 157. On the contention of the Defendants that those paragraphs of Counter Affidavit offended Section 115(2) of Evidence Act, Learned Counsel referred to Section 12 of the National Industrial Court Act, 2006 and also submitted that the said paragraphs duly complied with Section 115 of the Evidence Act. Relying on Forson v Calar Municipal Court (2004) 9 NWLR (Pt 878) 227, Learned Counsel submitted that the law allows a deponent to make reference to Law or Act in an affidavit.

4.0.           SUBMISSION OF DEFENDANTS ON SUBSTANTIVE SUIT

The Defendants Learned Counsel adopted his Final Written Address dated 17th December, 2019 and filed same date. The Defendants Learned Counsel distilled three issues for the determination of this Honourable Court, thus:

i.                    Whether the 2nd and 3rd Defendants not being parties to the contract of employment that existed between the Claimant and the 1st Defendant can be made liable for the breach or infraction, if any, of the said contract?

ii.                  Whether the Claimant’s case can succeed as formulated?

iii.               Whether the Claimant has proved his case as required by the law?

The Defendants Counsel also adopted the Defendants Reply on Points of Law.

5.0.           SUBMISSION OF CLAIMANT ON THE SUBSTANTIVE SUIT

The Claimant’s Learned Counsel adopted his Final Written Address dated 23rd November, 2021 but filed the 24th November, 2021 and regularized on the 29th October, 2021. The Claimant formulated four issues for determination thus:

1.      Whether there was proper determination of the Claimant’s employment by the 1st Defendant in accordance with the terms and conditions of service of the 1st Defendant having regards to the state of pleadings and evidence adduced by the Claimant at the trial of this Suit?

2.      Whether the 1st Defendant is liable to pay substantial monetary damages to the Claimant for wrongful termination of his employment and payment of his entitlements under the terms and conditions of service with the 1st Defendant having regards to the peculiar facts and circumstances of this case and the evidence adduced at the trial of this suit?

3.      Whether the Claimant is entitled to an order of this Honourable Court compelling the 1st, 2nd and 3rd Defendants to pay the Claimant’s accrued pension rights and outstanding contributions under the 1st Defendant’s staff benefit scheme inclusive of NSITF/NPF monthly contributions of N1,200.00 by employer and N1,200.00 by employee which the 2nd and 3rd Defendants wrongly deducted using the 1st Defendant as a cloak, from the inception of the Claimant’s employment till the date of termination of his employment?

4.      Whether the Claimant is entitled to the reliefs sought as per his Statement of Facts?

6.0.           ISSUES FOR DETERMINATION

This Honourable Court is saddled with the judicial duty to first resolve the Notice of Preliminary Objection launched against the Suit by the 2nd and 3rd Defendants after which this Honourable Court shall proceed to determine the merit of the case. I am of the view that the main issue for determination of the Notice of Preliminary Objection is thus:

Whether a reasonable cause of action is disclosed against the 2nd and 3rd Defendants in this case?

Also, on the merit of the case, after a thorough scrutiny and discrete study of the adopted Final Written Addresses of parties after a careful examination, evaluation and dutiful consideration of the evidence adduced by the respective parties in this case, this Honourable Court is of the view that the sole issue that crave the determination of this Honourable Court is as follows:

Whether the Claimant has established his case by credible evidence as required by law and thus entitled to the reliefs sought?

7.0.           DECISION

Beginning with the Notice of Preliminary Objection, it is a recondite principle of corporate jurisprudence which has remain so from the notorious locus classicus Salomon v Salomon that the incorporation of a company gives the company a corporate personality distinct and separate from its management. The law confers this legal personality on this artificial creation and donates it with the ability to live, transact and operate just like natural person with the capability to sue and to be sued in its corporate name. Thus, any liability, infraction, and transaction undertaken, incurred, consummated, executed, breached and so on by the company is the company’s act or omission and not that of the employees or directors who are merely the hands and minds/alter ego of the company and these may only be personally liable if they acted as agents of the company and breached their agency agreement or where they engaged in illegal or ultra vires transactions using the company as a cloak for the criminality. In such cases, which most statutory provisions do specify, the law permits the court to lift the veil of incorporation under the doctrine of equity and descend heavily on such erring member or officer of the company to find them culpable and make them pay for their atrocious criminal breaches. See, Adeniji v State (1992) 4 NWLR (Pt 234) 248 at 262, 263 – 264,Royal Pet. Co. Ltd v FBN Ltd (1997) 6 NWLR (Pt 510) 584 at 599, Bulet Int. Ltd v Olaniyi (2017) 17 NWLR (Pt 1594) 260 at 292, Alade v Alic (Nig) Ltd (2010) 19 NWLR (Pt 1226) 111 at 142 (SC), Mezu v CCB (2013) 3 NWLR (Pt 1340) 188 at 206 and 218 (SC) and Section 316, Companies and Allied Matters Act, 2020

In the instant case, the 2nd and 3rd Defendants have contended that there is no cause of action disclosed against them as to warrant joining them in this suit, other than the fact that the Claimant is just pursuing his desire to embarrass the 2nd and 3rd Defendants who have no contractual relationship with the Claimant, while the Claimant has contended that the 2nd and 3rd Defendants used the 1st Defendant as a cloak to fraudulently deduct his pension contribution without remitting same and as such the Court should find them personally liable by lifting the veil of incorporation of the 1st Defendant.

In the determination of whether cause of action is disclosed or not in a suit, this Honourable Court is to examine the totality of the pleadings of the Claimant and the reliefs sought and not the defence of the Defendant. As such, in this case, this Honourable Court will consider the Claimant’s General Form of Complaints and the Statement of Facts. In Ibrahim v Osim (1988) LPELR – 1403 (SC), the infallible Court per Muhammad Lawal Uwais, JSC at pp.14 – 15, paras F – D pronounced, thus:

“The words “cause of action” without the adjective “reasonable” had been defined by this Court in Savage & Ors. V. Uwaechia (1972) 1 All NLR (Part 1) 251 at p.257…, where Fatayi-Williams, JSC. (as he then was) said – A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke v Gill, (1873) L.R. 8 C.P. 107 and later in Read v Brown, (1888) 22 Q.B.D. 128 (C.A.), it is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. (See Kusada v Sokoto Native Authority, (1968) 1 All N.L.R. 377, where the definition in Read v Brown, (supra) was referred to with approval).”

Similarly, the Apex Court per Emmanuel Obioma Ogwuegbu, JSC in Yusuf & Ors v Akindipe & Ors (2000) LPELR – 3532 (SC) at 13 paras D – E, held that,

“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleading statement of claim are considered. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a judge as in this case. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it. See Wenlock v. Moloney (1965) 2 All ER. 871.”

Thus from the foregoing, it is clear that a pleading will contain series of facts setting out the circumstances which the Claimant averred to constitute his cause of action. One of those facts standing alone may or may not on its own be enough to sustain a cause of action. It is the aggregate of these facts put together that constitute the circumstances.

In line with the above dilated principles of law, I have burrowed with judicial lens through the gamut of the pleading in the Claimant’s Statement of Facts and noted the following averments at paragraph 20 thereof thus:

“20. The Claimant avers that the 2nd and 3rd Defendants who are chairman and Managing Director of the 1st Defendant with intent to defraud him of his accrued pension rights and outstanding contributions under the 1st Defendant’s staff benefit scheme inclusive of NSITF/NPF monthly contributions of N1,200.00 by employer and N1,200.00 by employee which were deducted by the 2nd and 3rd Defendants using the 1st Defendant as a cloak, from the inception of his employment till the date of termination of his employment and which funds were statutorily meant to be remitted to his Retirmement Savings Account domiciled with his Pension Fund Administrator (PFA), Trustfund Pensions Plc, were never remitted to his Retirement Savings Account as required by law, notwithstanding that he furnished the 1st defendant with his certificate of registration as a member of Trustfund Pensions Plc for remittance of his monthly pension contributions. The Claimant pleads the Pension Reform Act, 2004 and Pension Reform Act, 2014 and shall rely on the statutes at the hearing of this suit.

PARTICULARS OF FRAUD

(a)  The Claimant was employed by the 1st Defendant on the 20th of September, 1993.

(b)  The 2nd and 3rd Defendants used the 1st Defendant as a cloak to deprive the Claimant of the benefit of his accrued pension rights and outstanding contributions from the inception of his employment till the date of termination of his employment contrary to law as averred in paragraphs 18 and 20 of the Statement of Facts.

(c)   By virtue of the Pension Reform Act, 2004, the pension contributions from an employee’s monthly emolument is a minimum of 7.5% by the employer, a minimum of 7.5% by the employee and a minimum of 15% where the employer chooses to solely make the pension contribution.

(d)  Under the Pension Reform Act, 2014, the pension contributions from an employee’s monthly emolument is a minimum of 10% by the employer, a minimum of 8% by the employee and a minimum of 20% where the employer chooses to solely make the pension contributions.

(e)  S. 11(a) and (b) of the Pension Reform Act, 2014, mandatorily requires the 1st Defendant to deduct at source the monthly pension contributions of the claimant and not later than seven (7) working days from the date the claimant was paid his salary, remit an amount comprising the claimant’s pension contributions and the 1st Defendant’s contribution to the Pension Fund Custodian specified by the Pension Fund Administrator of the claimant.

(f)    The claimant furnished the 1st Defendant with his Retirement Savings Account domiciled with his Pension Fund Administrator, Trustfund Pensions Plc.

(g)  The claimant’s pension contribution from the inception of his employment until termination were purportedly deducted from his monthly emoluments by the 1st Defendant pursuant to the Mandatory Contributory Pension Scheme under the Pension Reform Act without remitting the contributions to his Retirement Savings Account.

(h)  The 2nd and 3rd Defendants who are the directing minds of the 1st Defendant used the 1st Defendant as a mask to fraudulently and criminally deduct the sums stated in paragraphs 18 and 20 of the Statement of Facts supposedly as a pension contributions without remitting the sums to the claimant’s Retirement Savings Account.”

The provision of Section 316 of Companies and Allied Matters Act, 2020, which is also provided in the repealed Companies and Allied Matters Act, 1978 recognizes situation where the director or officer may be personally liable for some acts or omissions when it provides thus:

“Where a company –

(a)  receives money by way of loan for specific purpose;

(b)  receives money or other property by way of advance payment for the execution of a contract or project; or

(c)   with intent to defraud, fails to apply the money or other property for the purpose for which it was received;

every director or other officer of the company who is in default is personally liable to the party from whom the money or property was received for a refund of the money or property so received and not applied for the purpose for which it was received and nothing in this section affects the liability of the company itself.”

With the above averments in the Statement of Fact vis-à-vis the dilated statutory provisions of the Companies and Allied Matters Act, can one still say there is no cause of action disclosed against the 2nd and 3rd Defendants in this case? I do not readily think so. The above averments have fully disclosed a reasonable cause of action against the 2nd and 3rd Defendants and if the fraud is successfully established by credible and cogent evidence will in no doubt make the veil of incorporation of the 1st Defendant to be torn from top to bottom and lifted for the Court to find the 2nd and 3rd Defendants jointly and severally personally answerable to the liability they had allegedly fraudulently put the 1st Defendant, in line with the dictate of the Companies and Allied Matters Act.

Accordingly, find and holds that a cause of action is sufficiently disclosed against the 2nd and 3rd Defendants in this case and in the manner and for the reasons being joined in this suit, the Claimant is right to have joined them. Nevertheless, whether the case against them will succeed will depend on the evidence adduced by the Claimant in proof of the allegations levied against the 2nd and 3rd Defendants upon which the Claimant wants the veil of incorporation to be impeached, penetrated, impugned and lifted. I so hold.

For the above reasons, the Notice of Preliminary Objection of the 2nd and 3rd Defendants hereby fails for lacking in merit and distractive in this case and by order of this Honourable Court, the Notice of Preliminary Objection is hereby dismissed accordingly.

Coming to the determination of the case on the merit, the law places the duty on whosoever wants the Court to declare the termination of his employment as unlawful or wrongful to adduce before the court the fact of the contract of service and the terms and conditions of same. In Aji v CBDA (2015) 16 NWLR (Pt 1486) 554 at 571, paras G – H, 572, paras D – E, the Apex Court held that whether an employee is suing for wrongful dismissal from an employment with statutory flavor or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of his termination or dismissal can be considered by the Court.

It is the contractual terms and conditions that are binding on the parties that the Court will consider vis-à-vis the procedure taken by the employer in the termination of the employment. The Court is not permitted to go outside the terms and conditions of employment agreed between parties in the determination of the rights and obligations of the parties under the contract. In Idoniboye – Obu v NNPC (2003) 2 NWLR (Pt 505) 589 (SC), the apex court in its elucidating pronouncement held thus at page 650, paras C – D:

“A court has no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the document or documents. Parties are bound by the four walls of the contract and the only duty of the Court is to strictly interpret the document that gives rise to the contractual relationship.”

See also, Akinola v Lafarge Africa Plc (2022) 12 NWLR (Pt 1844) 379 (SC)

In the instant case, while there is no dispute between the Defendants and the Claimant that the Claimant had a contract of employment with the 1st Defendant which the 1st Defendant terminated leading to this case, the crux here is whether the Claimant has placed before this Court the credible and cogent proof of the terms and conditions of his employment with the 1st Defendant on which the Claimant wants this Court to construe and determine the wrongfulness or otherwise of the termination of employment in this case.

The Claimant tendered in evidence Exhibit CW1B – CW1B2, Exhibit CW1C and Exhibit CW1E – CW1E27, respectively the Letter of employment, Confirmation of Employment by a company Obodex Nigeria Limited and the Staff Handbook given to the Claimant by the same Obodex Nigeria Limited. CW1 testified in chief that Obodex Nigeria Limited is the same as the 1st Defendant but the 1st Defendant denied this and put the Claimant to strictest proof. Under cross examination, CW1 answered that the name of the company that employed him via Exhibit CW1B – B2 is Obodex Nigeria Limited. CW1 said it was the company he started working with before the change to Data Sciences Nigeria Ltd and that the same person owns the company but that he cannot remember when the change of name was made. While CW1 admitted knowing Mr Dominic who worked with Obodex Nigeria Limited and Mrs Uwa who worked with both Obodex Nigeria Limited and the 1st Defendant, he said he does not know whether Mr Dominic still works with Obodex Nigeria Limited and he does not know whether Obodex Nigeria Limited is still in existence and never changed name and still operating Etiebet Place. CW1 admitted he is aware and know that the 1st Defendant is a big company having properties and that Obodex Nigeria Limited is equally a big company having properties.

Throughout the evidence of the Claimant, there is nothing linking this Exhibits CW1B – CW1B2, CW1C and CW1E – CW1E27 with the 1st Defendant company. There is no evidence by the Claimant that the 1st Defendant is the same company in those exhibits. There is no evidence of the change of name from Obodex Nigeria Limited to the 1st Defendant. The proof of change of name could have been satisfied by the Claimant applying to and presenting the Certified True Copies of the incorporation documents of the 1st Defendant from the Corporate Affairs Commission to establish that indeed and in truth this Obodex Nigeria Limited is the one and same company in the name of Data Sciences Nigeria Limited. In the absence of these vital and material facts, this Court, not being a seer who can see beyond the four walls of the evidence adduced before it, cannot embark on guesswork and speculation to scout outside the Court for evidence of the fact that Obodex Nigeria Limited is the same as the 1st Defendant. See, Oduadu V. Faruna (2014) LPELR – 24600 (CA) at 17 – paras C- E. , Ikenta Best (Nig) Ltd v. A/G Rivers State (2008) LPELR – 1476 (SC) 51 paras D. and Awolola V. Governor of Ekiti State (2018) LPELR – 46346 (SC) 46 -47 paras D – B.

The unreliability of these pieces of documents tendered by the Claimant which did not link to the 1st Defendant was further brought to the fore by the testimony of DW at paragraph 4 of his adopted Written Statement on Oath that “The 1st Defendant is duly registered with Corporate Affairs Commission in 1979 as an Information Technology Company and renders its services to corporate and governmental institutions in Nigeria. I state further that Obodex Nigeria Limited was registered with Corporate Affairs Commission in 1980”. There is nowhere the Claimant controvert or disputed this testimony of the DW throughout the pleadings and evidence of the Claimant, and neither under the cross examination of the DW. In addition to the above, this Court further noted the response of DW in the course of cross examination to the effect that what he saw at paragraph 18.3(d) of Exhibit CW1E19 tendered by the Claimant, which contains the formula for computation of the employee benefits when employment is terminated, is not what is obtainable in the 1st Defendant’s company.

This lacuna and yawning gap in the evidence adduced by the Claimant is very fatal to his case. From the foregoing findings, I cannot but hold that the Claimant has failed to place before this Court the proof of the terms and conditions of his service with the 1st Defendant. Going by the dilated judicial authorities earlier quoted in this Judgment, I cannot proceed further to determine the wrongfulness or otherwise of the termination of the employment in the absence of the documents constituting the terms and conditions of the contract of employment, even at the instance of the admission of the existence of the contract of employment by the Defendants.

The terms and conditions of the service with the 1st Defendant are not placed before this Court which it could construe and interpreted to find whether the termination by Exhibit CW1L was wrongful. The question of what are the laid down procedures for the termination cannot be answered without this missing vital and material evidence. It is very unfortunate that the Claimant rushed to Court without putting all his vital arsenals together and only got to the battle field and realized that the most significant weapon, the atomic bomb that could have given him the easy victory is obviously and carelessly missing.

Consequent upon the above findings, I hold that Reliefs 1, 2, 3, 5 and 6 of the Claimant’s Statement of Facts fail and thus dismissed for lack of proof.

Notwithstanding the above, this Court has looked at Reliefs 4 and 7 and noted that these reliefs are alleged entitlements of the Claimant which had accrued before the termination of the employment vide Exhibit CW1L. The position of the law is clear and settled as held in Ulegede v The Mil. Adm. Benue State (2001) 2 NWLR (Pt 696) 73 (CA) 91 para F where the penultimate Court held thus, “Regardless of whether a plaintiff’s claim for wrongful dismissal, termination or retirement from service is successful, or dismissed, his claims, benefits or entitlement which had accrued before his dismissal, termination or retirement are always paid to him. [Onalaja v. African Petroleum Ltd (1991) 7 NWLR (Pt 206) 691]”.

In line with the above principle of law, this Honourable Court will examine whether the Claimant has established his entitlement to these reliefs 4 and 7 in this case. The Claimant pleaded at paragraphs 18, 19, 20 and 22 of his Statement of Facts and led evidence in proof at paragraphs 20, 21, 22 and 23 of the CW1 adopted Written Statement on Oath. I have through the Defendants Statement of Defence and noted that not only have the Defendants failed to frontally expressly and directly deny the averments of the Claimant as regard the deduction of the pension contributions since the inception of the employment with the 1st Defendant as well as the failure of the Defendants to remit this pension contribution as required by law.

It is a recondite position of the law that evasive denial is no denial at all. Where a party has alleged a fact and the opponent wishes to deny, the denial must be specific, anything short of that, like half denial or evasive denial will be deemed to be an admission of the facts alleged. See, Meridian Trade Corpn. Ltd v M.C. (W.A.) Ltd (1998) 4 NWLR (Pt 544) 1 at 12 (SC), Dosunmu v Dada (2002) 13 NWLR (Pt 783) 1 at 30 – 31 (CA), Akintola v Solano (1986) 2 NWLR (Pt 24) 598 at 620 (SC) and Okukuje v Akwibo (2001) 3 NWLR (Pt 700) 261 at 330 (SC).

In line with the above judicial authorities, I hold that the Defendants failure to deny those averments as regards that pension contribution of the Claimant amounts to admission in this case.

Notwithstanding the above, since relief 4 is a declaratory relief and relief 7 is in the realm of special damages which is also hinged on the success of relief 4, I have further noted in the evidence of the Claimant the following documentary evidence, namely; Trustfund Pensions Plc Certificate of Registration dated 9th May, 2007 (Exhibit CW1H), NSITF Contribution Transfer Application Forms dated 24-08-2009 and 17-08-2009 (Exhibit CW1I – CW1I1) and Solicitors Further Demand Letter dated 21st June, 2017 to 1st, 2nd and 3rd Defendants, with annexure of Proof of Delivery (Exhibit CW1J – CW1J4). There is no evidence of the Pension Statement of Account of the Claimant to show the failure of remittance and there is no evidence from the Pension Administrator of the Claimant to prove the non-remittance.

In SBN v CBN (2009) 6 NWLR (Pt 1137) 237 at 308 – 309, the Court held that,

“Special damages must be pleaded with particulars and proved strictly. Strict proof in relation to special damages means no more than proof that will easily lend itself to substantially exact calculation of the damages or loss suffered. Strict proof therefore means such proof that would readily lend itself to quantification or assessment and no more.”

In NEPA v Alli (1992) 8 NWLR (Pt 259) 279 at 297, the Apex Court further added that the nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence. The Penultimate Court in AM Co. (Nig) Ltd v Volkswagen (Nig) Ltd (2010) 7 NWLR (Pt 1192) 97 at 125, also pronounced that strict proof of special damages does not mean unusual proof or proof beyond reasonable doubt and what is required is that the party should establish his entitlement to that category of damages by credible evidence of such character as would suggest that he indeed is entitled to an award under that head. See also, the Apex Court pronouncement in Gonzee (Nig) Ltd v NERDC (2005) 13 NWLR (Pt 943) 634 at 650.

Finally in SPDC (Nig) Ltd v Tiebo VII (2005) 9 NWLR (Pt 931) 439 at 472 and 473, the Apex Court dilated that what amounts to strict proof of special damages depends on the facts and the circumstances of each case. No general rule can, therefore, be laid down as to what amounts to strict proof. Therefore, an item of special damages need not be proved with mathematical exactitude nor must a receipt be tendered in every case in order to satisfy the strict proof requirement. The requirement of strict proof of special damages excludes a situation where the court will be left in a situation where it would start to guess what the losses due to a plaintiff should be. As such, the character of the acts themselves and the circumstances under which the acts are done regulate the degree of certainty and particularity with which the damages ought to be proved. See also, RCC (Nig) Ltd v Edomwonyi (2003) 4 NWLR (Pt 811) 513 at 535, Usman v Abubakar (2001) 12 NWLR (Pt 728) 685, Vital Inv. Ltd v CAP Plc (2022) 4 NWLR (Pt 1820) 205 (SC) at 258,  and Onyiorah v Onyiorah (2019) 15 NWLR (Pt 1695) 227.

There is no evidence of the starting date of the employment from which this Honourable Court can calculate the pension deduction as claimed by the Claimant. Other than the ipse dixit of the CW1, there is no evidence of the Pension Statement of Account to credibly proved that there was no remittance and the Claimant neither tender in evidence any report or communication from his Pension Administrator nor called the Pension Administrator to show and prove that there was no remittance.

Nevertheless, I have noted the additional documents frontloaded by the Claimant which were never tendered in evidence, a photocopy of the Claimant’s Pension Contribution Statement of Account issued by his Pension Administrator Trustfund Pensions Plc sequel to a letter from his Counsel dated August 30, 2017, which is also frontloaded but not tendered in evidence. I have also noted the record in the Claimant’s frontloaded Trustfund Retirement Savings Account Statement as at 11 December, 2017 showing remittance of contribution from 2006 to 2011, with payment date from 2011 to 24th June, 2016.

Though the above frontloaded document was never tendered in evidence by the Claimant, this Court has the powers to look at its record in the interest of justice. This Honourable Court finds that this piece of frontloaded document clearly debunked, negated and flied directly opposite to, the assertions of the Claimant that there was deduction but no remittance from inception of his employment till date of termination. This piece of document was obtained by the Claimant from his Pension Administrator and duly frontloaded as additional document to be relied on, with an application for leave to so do. The Claimant therefore was aware of the falsity of his averment in this regard.

The position of the law is notorious and has come to stay from time immemorial that in civil proceedings of which this suit is a specie by virtue of the provisions of Section 136(1) & (2) of the Evidence Act, 2011, 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 the fact shall lie on any particular person.

This trite position of the law is littered with plethora of judicial decisions too many to start citing but suffice to mention the decision of the infallible court, as follows: Daudo v NNPC & Ors (1998) LPELR – 927 (SC), Mogaji & Ors v Odofin & Ors (1978) 4 SC 91 at 94, Lewis & Peat Nig Ltd v Akhimien (1976) 7 SC 157, Sakati v Bako & Anor (2015) LPELR – 24739 (SC). This position was followed and adopted by the penultimate court in the case of Kuburi Int’l Trading Coy Ltd v Bulama Musti & Anor (2018) LPELR – 44004 (CA) where the court held thus:

“In civil case of which this instant case is a specie, the burden of proving the existence or non existence of a fact lies on the party against whom the judgment would be given if no evidence were produced on either side, regard being had to any prescription… if such a party adduces evidence which ought reasonably to satisfy the Judge 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 successively, until the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the Plaintiff who brought the action, though not invariable so. There are times when the burden is on the Defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof.”

Flowing from the foregoing, it has been settled in myriads of judicial precedents too numerous to start mentioning that a Claimant succeeds on the strength of his case and not on the weakness of the defence. See, Capital Hotels Plc Ors v. Abdullahi (2020) LPELR – 52315 (CA), Harka Air Services Ltd v Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade v Oshunkeye (2007) 15 NWLR (Pt 1057) 218. Where the Claimant fails to discharge this burden of proof, he cannot rely on the weakness of the defence or lack of defence, and in that sense the Defendant bears no burden to adduce any evidence or satisfactory evidence. See Ibrahim v. Ibrahim (2006) LPELR – 7670 (CA).

In Adamu v Nigerian Airforce (2022) 5 NWLR (Pt 1822) 159 (SC) at 182, the Supreme Court held thus:

A defendant need not prove anything if the Plaintiff has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. Where the Plaintiff fails to prove his case as required by the law, it shall be dismissed.” See also, Umera v NRC (2022) 10 NWLR (Pt 1838) 349 (SC) 387 paras G – H.

In addition, where the Claimant seeks declaratory reliefs, as in this case, the mere fact that the Defendant admitted the claim of the Claimant without more will not grant the declaratory relief being sought, as the Claimant is still required to prove his case and establish his entitlement to the declaratory reliefs. Failure to establish his entitlement to the declaratory relief even where there is admission by the Defendant will lead to the one and only consequence, refusal of the declaratory relief. See, Ecobank (Nig) Plc v Monye (2022) 4 NWLR (Pt 1820) 347 at 363 – 365 (CA), Umera v NRC (2022) 10 NWLR (Pt 1838) 349 at 390 – 391 (SC) and Aji v CBDA (2015) 16 NWLR (Pt 1486) 554 (SC) and Obe v Mtn Nig. Comms. Ltd (2021) 18 NWLR (Pt 1809) 415 at 447 (SC)

In the light of the foregoing holdings and findings and the above established principles of law, this Honourable Court hereby holds that the Claimant has failed to prove his entitlement to reliefs 4 and 7, same way the Claimant failed to establish his entitlement to Reliefs 1, 2, 3, 5, and 6. The case of the Claimant therefore crashed like a pack of cards and failed in its entirety.  

Before I draw the curtain in this matter, on the issue of whether the veil of incorporation should be lifted and the 2nd and 3rd Defendants be held personally liable for this unproved deduction and alleged failure of remittance which the Claimant has failed to strictly proved the amount deducted and not remitted, the allegation against the 2nd and 3rd Defendants is indeed criminal allegation which requires proof beyond reasonable doubt. This, the Claimant has failed to establish before this Court as well. See, Oguntayo v Adebutu (1997) 12 NWLR (Pt 531) 83 at 97, Otukpo v John (2012) 7 NWLR (Pt 1299) 357 at 374, 383 and Shuaibu v Muazu (2014) 8 NWLR (Pt 1409) 207 at 317

In the light of the foregoing, the claim of the Claimant is by order of this Honourable Court dismissed for want of proof.

Judgment is entered accordingly. I make no order for cost.

 

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                                       HON. JUSTTICE MUSTAPHA TIJJANI