Amaka Nwosu -VS- News Central Media Limited- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

DATED 22^nd MAY, 2025 Suit No: NICN/LA/107/2022

BETWEEN

AMAKA NWOSU CLAIMANT

AND

NEWS CENTRAL MEDIA LTD DEFENDANT

REPRESENTATION:

M.S Umar with Emeka Nwaigwe for the Claimant

Gbolaga Ajayi with Abiodun Raji for the Defendant/Counterclaimant

JUDGMENT

By a general form of complaint filed on the 10^th March, 2022 but amended on 16^th October, 2024, the claimant claimed the following reliefs against the defendant:

1. A Declaration of this Honourable Court that the termination of the Claimant's employment by the Defendant without the issuance of requisite notice or payment in lieu of notice is wrongful.

2. A Declaration of this Honourable Court that the non-payment of the Claimant's outstanding salary, pension deductions and other terminal benefits by the Defendant is wrongful.

3. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the outstanding salary for the month of February 2020 in the sum of N1,400,000.00 (One Million Four Hundred Thousand Naira).

4. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the outstanding salary for the month of March 2020 in the sum of N1,158,346.67 (One Million, One Hundred and Fifty-Eight Thousand Three Hundred and Forty-Six Naira Sixty-Seven Kobo).

5. An Order of this Honourable Court compelling the Defendant to pay to the Claimant salary in lieu of notice in the sum of N2,000,000.00 (Two Million Naira).

6. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the unremitted pension deductions in the sum of N3,840,000.00 (Three Million Eight Hundred and Forty Thousand) being Employee's 8% deduction of monthly salary by the Employer for 24 months (July 2018 - July 2020).

7. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the unremitted employer's pension contribution due to the Claimant, in the sum of N4,800,000.00 (Four Million Eight Hundred Thousand Naira Only) being Employer's 10% contribution for 24 months (July 2018 - July 2020)

8. An Order of this Honourable Court compelling the Defendant to pay to the Claimant penalty of 2% of the unpaid/unremitted pension deductions/ contribution for each day of default in line with the Pension Reform Act 2014, from July 2018, being Claimant's date of employment till all the Claimant's pension deductions/contributions are finally remitted to the Claimant's account.

9. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the sum of N2,000,000.00 (Two Million Naira) being the cost of this action.

10. Post-judgment Interest on the sums contained in reliefs 3, 4, 5, 6, 7, 8 and 9 at the rate of 21 % per annum, from the date judgment until the judgment sum is liquidated.

Accompanying the amended complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated and filed 10^th March, 2022.

In reaction, the defendant entered formal appearance and then filed a statement of defence, counter claim, witness written statement on oath and documents to be relied upon at trial dated 5^th April, 2022 and filed 6^thApril, 2022. The defendant/counter claimant counterclaimed as follows:

1. An Order of this Honourable Court compelling the Defendant to pay to the Counter-Claimant the extra one year rent paid for the apartment when the defendant refused to vacate and hand over the keys to the Claimant after the termination of her employment and all the outstanding utility bills that were paid by the Defendant on account of the Claimant's in the sum of N3,348,500.00 (Three Million There Hundred and Forty Eight Thousand and Five Hundred Naira).

2. An Order of this Honourable Court compelling the Defendant to pay to the Counter-Claimant the monetary value of all the sitting room and bedroom furniture, kitchen appliances, AC fittings and electronics removed by the Defendant from the apartment provided for her to the tune of N4,000,000.00 (Four Million Naira).

3. An Order of this Honourable Court compelling the Defendant to pay to the Counter-Claimant the sum of N30,000.00 (Thirty Thousand Naira) representing the amount paid for repairs to the door after force entry because of the Defendant's refusal to submit the keys to the apartment.

4. An Order of this Honourable Court compelling the Defendant to pay to the Counter-Claimant the sum of N2,000,000.00 (Two Million Naira only) being the cost of this action.

5. Post-judgment Interest on the sums contained in reliefs 1, 2, 3 and 4 at the rate of 21% per annum, from the date of judgment until the judgment sum is liquidated.

The claimant’s Reply to the defendant’s statement of defence and defence to counter claim is dated and filed on 25^th April, 2022.

The summary of the facts pleaded by the claimant is that she was employed as Features Editor by the Defendant, vide a letter of employment dated 10^th July 2018 constituting the principal terms of the employment contract between her and the Defendant and that whilst in the employment of the Defendant, she had consistently performed "excellently well and had always discharged her roles with utmost diligence and competently, which severally attracted the commendation of Mr. Anthony Dara, the Chief Executive Officer and Managing Director of the Defendant; that throughout the years preceding the termination of her employment with the Defendant, she had never been issued a query nor indicted for any act of incompetence, breach of the Defendant's policies or unprofessional conduct. That vide a letter dated 29^th July 2020 and headed "Redundancy of Employment", her employment was terminated by the Defendant without notice or payment in lieu of Notice. That in the said letter of termination of employment which took effect from 31^st July, 2020, the Defendant clearly stated that the said termination was not a reflection of her performance; and further promised to pay all her outstanding entitlements as well as payment in lieu of notice. That whilst in the employment of the Defendant, payment of salaries was always delayed for months and almost at no time was salaries paid as at when due and the payments were often unconscionably and inexplicably staggered; that in the months of February 2020 and March 2020, she was only paid negligible portions of her salaries, leaving the outstanding sum of N1,400,000.00 (One Million Four Hundred Thousand Naira) for the month of February, 2020; and the outstanding sum of N1,158,346.67 (One Million One Hundred and Fifty-Eight Thousand Three Hundred and Forty-Six Naira Sixty-Seven Kobo) for the month of March, 2020, also the Defendant was also in the constant habit/conduct of not remitting her pension deductions and contributions despite deductions made in respect thereof and this untoward conduct of the Defendant led to issuance of a "Letter of Caution" dated 5^th November, 2019, to the Defendant by the National Pension Commission.

That following the termination of her employment by the Defendant, her salaries and employment benefits, including but not limited to her pension deductions/ contributions, have remained unpaid and outstanding till date, in spite of repeated promises by the Defendant to settle the said obligations; that the Defendant, vide a letter dated 10^th September, 2020, written to her, admitted its indebtedness to her in the sum of N7,118,346.67 (Seven Million, One Hundred and Eighteen Thousand, Three Hundred and Forty-Six Naira, Sixty-Seven Kobo). however, and to her chagrin, the Defendant has, till date failed, refused and/or neglected to pay the said sum to her. That she made attempts to ensure that this matter was resolved amicably, including relating her complaint to the Defendant, through a letter of demand dated 26^th October, 2021, issued by her solicitors; but the said demand was rebuffed by the Defendant; that the Defendant has continuously deprived her of her earned benefits, whilst the Defendant continues to carry on its business unbothered by the hardship that its continued default has caused her.

In her reply to the defendant’s statement of defence and defence to counter claim; the claimant averred that the Defendant's incorporated name is News Central Media Limited. However, the Defendant/Counter-Claimant's also operates with the trade mark/name - News Central Television, with which it continually uses to correspond and contracts; that the money paid to her in February and March, 2020, represents negligible portions of her salaries for the said period and was never and could not have been a gift because as at the said times, she was in the Defendant/ Counter-Claimant' s employment and was diligently carrying out her duties during the said period; that an email from the Defendant/ Counter-Claimant' s CEO dated 12^th June, 2020 and another email from the Defendant/Counter-Claimant's Head of Human Resources dated 16^th March, 2020, were sent to staff of the Defendant, which included herself, soliciting their patience for non-payment of salaries for the period under reference - February and March, 2020. That she was under the employment of the Defendant from 10^th July, 2018 till 29^th July, 2020 and dutifully attended all official functions/ duties and meetings scheduled and convened by the Defendant.

That she became sick and was admitted to a hospital for pneumonia as a result of the uninhabitable state of the Cadogan official apartment - massive damp and mouldy environment as well as incessant water leakages from the roof and walls of the apartment. Consequently, she was strongly advised by her doctor not to return to the official residence after being discharged and the Defendant/Counter-claimant did not provide her with alternative accommodation, as provided in her employment contract, despite numerous promises to do so. Consequently, she had to look for a suitable and habitable accommodation at her own cost; that her ill-health and admission to a hospital was duly communicated to the Defendant vide an email dated 4^th November, 2019 which was duly received and acknowledged by the Defendant vide an email dated same 4^th November. That she merely took out few items, namely: (a) 1 Television set; (b) 1 Fridge; (c) 1 Gas Cylinder; and (d) 1 Microwave, out of the Cadogan official apartment because the said apartment has become uninhabitable as a result of massive damp and mouldy infestation as well as incessant water leakages of water from the roof and walls of the official apartment to the knowledge of the Defendant/Counter-Claimant and the said items would have been totally destroyed by massive mouldy and damp as well as the incessant leakages if she had left them in the said apartment and that she is willing to return the said items listed above upon payment of her full outstanding salaries and benefits by the Defendant/Counter-Claimant.

That she was forced to vacate the uninhabitable official apartment since November, 2019, to the knowledge of the Defendant/Counter-Claimant, long before her employment was terminated in July, 2020; that the Defendant/Counter-claimant's claims and allegations (as contained in the letter dated 28^th October 2021) are no more than an afterthought and dubious concoctions whose sole objective is to avoid the payment of the employment benefits, some of which had fallen due as far back as February, 2020 and that following the Defendant/Counter-Claimant's deliberate refusal to pay her due and outstanding salaries, pension, allowances and terminal benefits, she was constrained to place a lien on the said items and remain willing to deliver same to the Defendant/ Counter-Claimant upon full settlement of the Defendant/ Counter-Claimant's obligations to her; that she was unable to accede to the Defendant's request for keys because, prior to the institution of this suit, she was indisposed and out of the country. That the purported payment of N3,348,500.00 as rent and service charge was purportedly made long after she had vacated the official apartment to the knowledge of the Counter-Claimant; also, the said payment was purportedly made long after the Counter-Claimant terminated her appointment; that the Counter-claimant's letter dated 28^th October, 2021, was merely a response to her letter of demand dated 26^th October, 2021. Moreso, the Counter-claimant has already, vide its letter dated 10^th September, 2020, expressly admitted being indebted to me.

Under cross examination by the defendant/counter claimant’s counsel, CW stated that she signed her identified 2 two (2) witness on oath in her lawyer’s office; that when online you do not have to be present physically; that she was at work in December, 2019; that she was sick from October to December 2019; that her medical report already existed and not procured in anticipation of the instant suit; that her PFA is Stanbic IBTC and that the defendant’s H/R was not taking the pension so she had to pay her pension independently.

Under re-examination by the claimant’s counsel; CW stated that she signed her documents in Ikoyi.

The claimant thereafter closed her case.

The defendant/counterclaimant opened its defence by calling its sole witness, Omolara Ayo-Tobun, a Legal Practitioner and staff in the department of Legal/Admin/Procurement of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant/counter claimant’s witness statement on oath is that the E-mail of Mr. Anthony Dara which was pleaded by the Claimant was not peculiar to or specifically addressed to the Claimant, rather, it was addressed to most of the senior staff of the Defendant and does not amount to a commendation from the Defendant's Mr. Anthony Dara; that the Defendant promised to pay the Claimant all legitimate outstanding entitlements and no more. That the defendant dutifully and timeously paid salaries of its staff, safe for few times when it had financial crises and on those few occasions, it rendered explanations on the cause of the delays through the E-mail pleaded by the Claimant as a measure of respect to its workforce and good faith. That the money paid to the Claimant in February and March 2020 were paid to her as mere gifts and out of abundance of the defendant’s good faith, because the Claimant did not earn any payment for that period as she was definitely missing in action or and away without official leave from work from December 2019 for about 4 months without any authorization or justification whatsoever, but claimed that she was sick and refused or/and omitted to present any medical report to back up her claim when she was asked for it; that what the Claimant received for February and March 2020 was what the Defendant deemed proper to give as a gift as the Claimant who was suspected to have taken to another job at that time was curiously unavailable to attend to her duties with the Defendant.

That whilst in the employment of the Counter-Claimant, the Defendant is fond of absconding from work for months without any lawful authorization or permission only to return to claim she was sick without backing that up with a medical report. This happened on so many occasions including the months of February and March, 2020; that due to the Economic impact of Covid-19 on the counter-claimant, it embarked on a restructuring and adjustments to its workforce and organogram, after which the Defendant's role in the counter-claimant ceased to exist, thereby resulting in the termination of the Defendant's employment via a letter of "Redundancy of Employment" dated 29^th July, 2020 and that even though the claimant has not been seen at work since the month of December, 2019, the counter-claimant still deemed it fit to give the defendant a letter of termination. In which letter, the Defendant was requested to hand over company's property in her possession including, ID cards, access keys, passwords etc. however, the Defendant failed to yield to this request.

That the Defendant was never in the constant habit of not remitting the Claimant or any of its staff pension deductions and contributions as alleged by the Claimant as the issue of remittance of the Claimant's pension contributions was caused by the Claimant herself who refused to register with any pension administrator, which effectively made it impossible to carry out any pension remittance for her despite series of requests to her to register with a pension administrator; that the outstanding salaries and employment benefits of the Claimant have remained unpaid due to the fact that the Claimant had resorted to self-help under which she carted away so many valuable properties of the Defendant as a measure of self-compensating for what she felt she was entitled to and that she has refused vehemently for almost two (2)years to release the Defendant's goods in her possession and has continued to apply the goods to her personal use. That as at the time the Defendant wrote the letter of 10th day of September, 2020, it was not envisaged that the Claimant will take to self-help to compensate herself through the properties and other measures at the expense of the Defendant. In the same letter dated September 10 2020, at last paragraph thereof, the Defendant clearly and unambiguously requested the Claimant to return the keys of the rented apartment the Defendant paid for and gave the Claimant for the sake of her employment, and other household furniture and domestic equipment of the Defendant that were in the apartment.

That the Claimant refused, omitted or/and neglected to vacate the serviced highbrow apartment at Cadogan Estate, Osapa London, Lekki, Lagos State apartment whereby the Defendant was made to incur unnecessary rental payments of N3,000,000.00 (Three Million Naira) and service charges for the apartment that the Claimant occupied while already out of its employment and also, when the Claimant decided eventually to vacate the apartment, the Claimant left with the Defendant’s properties worth over N4, 378, 500, this is beside the rent and service charges that the defendant was forced by threat of legal action by the landlord to pay for the apartment the Claimant refused to vacate. That the defendant wrote a letter dated 28^th October, 2021 to the Claimant's Solicitor in reply to an earlier letter of demand written on behalf of the Claimant wherein the Defendant denies owing the Claimant the amount she is claiming and in the same vein, made demands for the return of all the Defendant's properties which the Claimant removed from the apartment given to her during her employment with the Defendant and demand was also made for the payment of outstanding service charges incurred on the apartment during her occupation of same; that the Defendant in the said letter made it clear that it is the only condition precedent for the payment of the money owed to the Claimant.

That the Demands in the letter of 28^th October, 2021 are as follows;

i. A refund of all outstanding utility bills that were paid by the Defendant on the Claimant's behalf in the sum of N348,500.00

ii. The monetary value of all the sitting room and bedroom furniture, kitchen appliances, AC fittings and electronics removed by the Claimant from the apartment provided for her to the tune of N4,000,000.00

iii. The sum of N30,000.00 representing the amount paid for repairs to the door after force entry because of the Claimant's refusal to submit the keys to the apartment.

That the Claimant did not deny any of the allegations in the said letter neither did she give a response or reply to same and in a blatant show of lack of good faith and candour the Claimant has conveniently and deliberately left out the aspect of the letter requesting her to release keys and properties in her possession in the letter dated 10^th September 2020 and also the Defendant's letter dated 28^th October 2021 totally in her pleadings; that the Claimant's Solicitors wrote to the Defendant, a letter of Demand dated the 26^th day of October, 2021 to which the Defendant replied vide its letter dated the 28^th October, 2021, stating the true position of affairs and suggesting a way forward but the Claimant rebuffed the defendants reply letter which was never replied to till date. That the Defendant does not owe the Claimant the amount she is claiming through this Suit or at all and that the Claimant's action amounted to stealing and the Defendant could have instigated a criminal action of stealing against her but has refrained from taking such step; that the claimant having resorted to self-help, her claims before the Honourable Court should not be granted as equity leans against double portion and also the law forbids what will amount to a double jeopardy on the part of a party before the Court.

Under cross examination by the claimant’s counsel, DW stated that the claimant’s salary was at a range of N1.4 million -N1.6 million and on a gross salary of N24Million; that the claimant could not have been paid her salary in lieu of notice because she had absconded by the time the defendant was restructuring.

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

Upon conclusion of trial, Written addresses were filed and exchanged by counsel to both parties. The claimant’s final written address is dated and filed 3^rd December, 2024 while the defendant/counterclaimant’s final written address is dated 3^rd December, 2024 but filed 5^th December, 2024.

Learned counsel on behalf of the claimant formulated three (3) issues for the determination

1. Whether the Claimant's Witness Statements on Oath dated 10^th March, 2022 and 25^th April, 2022 are valid and can be relied on to substantiate the Claimant's claim?

2. Whether the Defendant is Liable to pay to the Claimant, her outstanding salaries, one-month Salary in lieu of termination and 24 months unremitted Pension from July 2018 to July 2020?

3. Whether the Defendant/Counter-Claimant has furnished the Court with enough evidence to prove its Counter-Claim.

It is the defendant’s counsel submission on issue one (1) that at the Court's proceedings during Re-examination, the Claimant testified that she signed the Witness' Statement on Oath at 'Ikoyi' as it was clear that she did not understand the Defendant's counsel initial question during cross-examination: "Tell the Court what happened in your lawyer's office when you went to sign"; that the Commissioner for Oaths of the Honourable Court, maintains a Register of deponents and that the name of the Claimant (CW) is endorsed on that Register as having physically appeared in Court to depose to her Witness' Statements on oath; that the honourable Court is bound by its record and can rely on same in determining whether the Claimant was present in Court to depose to her Witness Statement on Oath. That the mere fact that the Commissioner for Oath's stamp and signature are on the Statement on Oath is proof that the statement was signed before the right authority and to suggest otherwise is to cast aspersions on the integrity of the Honourable Court.

That that the Defendant's counsel never at any time objected to the tendering or adoption of the Claimant's Witness Statement on Oath during trial. Same having been adopted before the Court, the Defendant cannot at this juncture rely on technicalities to tag the Claimant's Witness Statement on Oath as incompetent. That by the Rules of the honourable court, this court is empowered to depart from the rules of evidence. He cited the case of Adegboye v. UBA (2022) LPELR-58778(CA) at 26-34, paras. F-A.

On issue two (2); counsel submitted that in the instant case, the Defendant acknowledges that it is indebted to the Claimant but has refused to pay the money and has come up with various falsehood as to why it has refused to settle its debts and that the law is trite that facts admitted need no proof. In respect of Pension; counsel submitted that the Claimant's monthly salary was N2,000,000.00 (Two Million Naira), Employer's 10% of N2,000,000.00 is N200,000.00 while Employees 8% of N2,000,000.00 is N160,000.00 which means that the Claimant was entitled to a monthly pension remittance of N360,000.00 (Three Hundred and Sixty Thousand Naira). This monthly sum translates to a total of N8,640,000.00 for the 24months the claimant worked with the defendant.

Contributor	% of Salary	Monthly Amount	No. of Month	Totals
Employer	10%	200,000.00	24	4,800,000.00
Employee	8%	160,000.00	24	3,840,000.00
				8,640,000.00

Continuing, counsel submitted that there is uncontested evidence before the honourable court that the Defendants debited or deducted from the Claimant's salary monthly contributions but failed to remit same towards the Claimant's pension as statutorily required. Furthermore, it is also undisputed that the Defendant did not make any payment into the Claimant's pension account. That the Defendant has no excuse or defence for not paying the Claimant's pension because the law is clear that if the employee does not open an account, the account should be opened for the employee by the employer. He referred the honourable court to Section 11 of the Pension Reform Act 2014.

On issue three (3); counsel submitted that The Defendant/Counter-Claimant in its Counterclaim alleged that the Claimant was not a good staff and had absconded from work since December of 2019 but did not adduce any evidence to support this claim, in fact the Counter Claimant did not offer a reply or contradict the Claimant after the Claimant provided evidence which clearly proves the fact that the Claimant did not at any time abscond from her work place as contended by the Defendant/counter-claimant. Even the DW herself said in her testimony during cross-examination that the Claimant's employment was terminated ‘when we came back- July 2020’. This coming back was from the Covid 19 lockdown during which people worked virtually and this confirms the Claimant's testimony during cross-examination when she said 'it was the pandemic period, other than that, I was in the office'.

That the Defendant/ Counter-claimant did not only fail to adduce any receipt for payment of rent in respect of the apartment known as "Cadogan Estate, Osapa London, Lekki, Lagos", it did not adduce any evidence or explanation to link the payment as shown in the "GT Bank Online Transfer Advice" to the rental payment in respect of the apartment known as the "Cadogan Estate, Osapa London, Lekki, Lagos". That There is no evidence as to how the defendant arrived at the sum of N4,000,000.00 as the cost of the items allegedly removed from the apartment by the Claimant; that the two receipts are vague and have nothing to show that they are connected to the “repairs of door” for which the Defendant/Counter-Claimant claims the sum of N30,000.00. That the honourable court must be wary of placing any weight on the receipt dated 2/11/2020 allegedly issued by "Dele Adisi Carpentry Works" for the sum of N8,000.00 payment of "labour and transport". As on the face of the said receipt, it is clear that the receipt although was issued by "Dele Adisa Carpentry Works", it was signed by/for a different Company entirely - " Adawa Construction". That the burden of proof in a Civil matter is on the party making the allegation. He cited case of Olaniyan v. Oyewole (2011) 14 NWLR (Pt. 1268) 445 and urged the honourable court to so hold.

On the effect of the defendant/counterclaimant’s refusal to file a Reply to the claimant’s defence to the counter claim; the claimant’s counsel submitted that it is trite law that the defendant who fails to traverse or join issues with the claimant on his averments is deemed to admit the facts pleaded against him; that the Claimant had in its defence to the Counter-Claim denied the counter claim and had put the Defendant/Counter-Claimant to the strictest proof of the claims thereof but the Defendant/Counter-Claimant failed to join issues on any of the issues raised by the Claimant in her defence to the counter-claim, thus, the Defendant/Counter-Claimant is deemed to have admitted those facts as contained in the Claimant's defence to the Defendant/Counter-Claimant' counter-claim.

Learned counsel on behalf of the defendant/counterclaimant formulated four (4) issues for the court’s determination viz:

1. Whether the Claimant's pleadings are not liable to be deemed abandoned in light of the fact that she has no evidence due to the fact that there is no witness deposition on oath validly existing before the Honourable Court, to substantiate the facts alleged therein?

2. Whether the Claimant is entitled to the claims requesting to be personally paid her claimed deducted and contributed pension funds having failed or and refused to appoint a Pension Fund Administrator?

3. In the unlikely event that the Court takes cognizance of the Claimant's incompetent witness depositions on oath and the averments in her pleadings are considered, whether the Claimant is still entitled to her claims after resorting to self-help that caused Defendant/counter- claimant huge expenses and expensive furniture, equipment and electronic appliances?

4. Whether from the totality of the pleadings and evidence on records (oral and documentary), the Defendant has also proved its Counter Claim and thus entitled to the reliefs thereon?

On issue one (1); the defendant/counterclaimant’s counsel submitted that the law is settled that for a Written Statement on Oath to have effect before the Honourable Court or any Court of Law for that matter, such written facts must be sworn to before a judicial officer empowered to administer oaths and in compliance with the Oaths Act in terms of the person before whom it was signed and sworn; that in the instant suit, during trial, the Claimant as the sole witness in her case under cross-examination on 22^nd of March, 2024 admitted clearly and unambiguously that her Witness Statement on Oath dated 10^th day of March, 2022 was signed in her Counsel's office and not before the Commissioner for Oaths at the Registry of the National Industrial Court is a fundamental and an incurable violation of the Section 13 Evidence Act 2004, the Oaths Act and the Notaries Act; that the only outcome upon the admission of CW that her witness statement on oath was signed in the office of her lawyer, as she never disclosed to the honourable court whether or not her however was an officer authorized to administer oath, is to expunge the said witness statement on oath of CW marked as C1 and that further consequence of expunging the said C1 is that all the Exhibits tendered through CW1 upon the adoption of C1 i.e. Exhibits C2 - C9 should accordingly be expunged from the record of this court. He cited the case of Aliyu v Bulaki (2019) LPELR-46513 (CA).

Continuing, counsel submitted that the implication of the foregoing is that if the Honourable Court holds that the Claimant's Statement on Oath is defective and invalid, it means there is no Witness Statement on Oath or any evidence by the Claimant before the Honourable Court and the absence of same creates a feature which makes it practically impossible to entertain this suit as the said CW is the only witness of the Claimant before the honourable Court. More so, expunging the said Statement on Oath leaves the Complaint filed by the Claimant bare without a Statement on Oath in defiance of Order 3 Rule 9 of the Rules of the honourable Court which stipulates that a complaint shall be accompanied by a Written Statement on oath of all witnesses listed to be called by the Claimant. He cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 or (1962) 1 All NLR 587 at 594 and urged the Honourable Court to hold that the Statement on Oath of CW (the Claimant) dated 10^th day of March, 2022 is incompetent and liable to be rejected and expunged from the records of the court and should be dismissed as there is nothing left for the honourable court to adjudicate on as the court is robbed of its jurisdiction to entertain the suit.

It is the defendant/counterclaimant’s counsel submission on issue two (2) that there is no shred of evidence before the Honourable Court, showing that the Claimant ever appointed any Pension Fund Administrator or opened a retirement savings account with one; that the provision of Section 16(1) of the Pension Reform Act 2014 expressly forbids the Defendant to pay the deductions made from and contributions made to the Claimant's salary to the Claimant in person, which is the precise thing that the Claimant seeks to achieve through these reliefs in this case; that the Honourable Court should reject the claims seeking payments of the claimed deducted or contributed pension to the Claimant as the relief itself is unlawful and its request is an invitation to seeking the Honourable Court to countenance what is inherently unlawful.

On issue three (3) and four (4); counsel submitted that a person who first engages in self-help cannot later seek the assistance of the honourable court on the same matter; that the person not only runs the risk of legal action but may also incur aggravated damages for the misconduct; that it is a settled principle that the seizure, acquisition or confiscation of property (whether movable or immovable) without due process of law clearly violates the fundamental rights provisions of the relevant laws. He cited the cases of Diamond Bank v. Unaka &Ors (2019) LPELR- 50350(CA).

On the admission by the Claimant that she took away the properties of the Defendant and knew about the extra cost of rent that she caused the Defendant to pay over the apartment that she held over, counsel submitted that the law is very clear that facts admitted need not be proved. He cited an unreported case of Antonio Oil -Company Limited v Asset Management Corporation of Nigeria (AMCON) and urged the honourable court to accept and act on the admitted facts in the pleadings of the Claimant and grant the counterclaim of the defendant.

I have considered all the processes filed, evidence led, written submissions, authorities cited by counsel in the final addresses in this matter. Before addressing the merit of the case, I need to resolve the preliminary issue the defendant raised regarding the fact that the claimant’s deposition on oath was signed in the lawyer’s office, and being defective, having not be sworn before the commissioner of oath in the court’s premises is taken as abandoned and no evidence before the court; that the claimant admitted signing the witness deposition in the lawyer’s office under cross examination contrary to the oats Act. The defendant referred to Section 13 of the oaths Act 2004 and further submitted that the witness statement on oath signed in the lawyer’s office is a fundamental and incurable violation of section 13 Evidence Act 2011, the Oaths Act and the Notaries Act. The defendant referred to Aliyu v Bulaki (supra) that the act of signing the witness statement on oath before the commissioner for oath authenticates it and that Nammagi v Akote (supra) represents the latest position of the law. The claimant in response to the defendant’s objection on the witness deposition enumerated the principle of law that for a deponent that is the litigant to file a witness statement on oath at the registry, the deponent must appear in person and that an Affidavit is not the same as a witness statement on oath which does not become evidence until the deponent takes oath and adopts same in open court. The claimant concluded that the commissioner for oats’ stamp and signature on the statement on oath is proof that the statement was signed before the right authority.

The requirement of the law is that the depositions on oath must be signed in the presence of the persons authorized to administer oaths. See FCMB Plc v Sunday & Anor (2022) LPELR -58197(CA). The claimant under cross examination when asked ‘’ you identified 2 witness statement made by you. Tell the court what happened in your lawyer’s office when you went to sign and she responded that it was signed in the lawyer’s office. There is no doubt that the witness statement on oath was signed in the lawyer’s office contrary to the oaths act. The law is settled that for the statement on oath to be valid, there must be strict compliance with the laid down provision on who is to administer same. The court of Appeal in John K. Igbu & Ors v Awua Imande & Anor (2022) LPELR -57979 (CA) on effect of a written statement on oath signed in the office of a counsel. Whether such defect is curable held as follows:

The answer to this issue can very easily be found in the decision of this court in Onyechi Erokwu & Anor v Jackson Nwabufo Erokwu (2016) LPELR 41515 (CA) page 17-22 paragraph A per OGUNWUMIJU JCA( as she then was, now JSC) stated ‘’ I had hitherto been of the view that even where the witness statement of the respondent at the trial court was not sworn to before a person duly authorized to take oaths in contravention of section 112 of the Evidence Act 2011, the subsequent adopting of the written deposition after he had been sworn in open court to give oral evidence regularizes the deposition. I was of the view that the witness’s statements on oath which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross examination. That it is such affidavit evidence which do not meet the requirements of section 112 Evidence act 2011that are intrinsically inadmissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme court in Buhari v INEC (2008) 12 SCNJ 1 at 91. In that case, the Supreme court unequivocally agreed that the courts of appeal decision to strike out the depositions of the Appellants witnesses sworn before a notary public who was also counsel in the chambers of the senior counsel to the appellant which was in violation of section 19 of the Notary public Act and 83 of the evidence Act (now section 112).

In Abdulrahim Yaú v Ministry of Land and Physical Planning Kano & Ors (2022) LPELR -58781 (CA) on the effect of a written statement on oath not signed and sworn before a commissioner for oaths held thus ‘

‘’The respondents witness statement on oath in this case xxxxxxxx. . That would have been taken to be regular but for and in compliance with the rules of court, but for the confession of DW1 at the trial, who said under cross examination ‘’ I signed same in my office. The issue two, the submission of the appellants’ counsel is that the trial court was in error when he discountenanced the evidence of the 1^st Appellant who testified as Dw1 on the basis that his statement on oath was signed in the counsel’s office and not before the commissioner for oaths. His argument is that there is no law or rule requiring a witness to sign his statement before commissioner for oath. This again is a misconception. It means the documents had been signed/endorsed by the witnesses before their counsel in the lawyer’s office, before they were taken to the Registrar of the Court (Commissioner for Oath) for stamping and formalities by the Registrar. That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray. Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to decide and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identify the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously. By Section 112 of the Evidence Act, 2011: An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before a partner or clerk of his legal practitioner. See also the case of Buhari vs. INEC (2008) 12 SCNJ 1 at 91, where the Supreme Court struck out the depositions of Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation of Section 19 of the Notary Public Act and Section 112 of the Evidence Act, 2011. See also the recent textbook on The Law of Affidavit Evidence by Ike Njoku, Five Clands Publishing Co. Ltd, page xi (Foreword), 2022. See also the case of Erokwu vs Erokwu & Anor (2016) LPELR – 41515 CA, where my Lord Ogunwumiju, JCA (as she then was, now JSC) held: The deponent afterwards, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the Affidavit was sworn to in his presence. This explains the phrase, ‘Before me’ usually signed by the Commissioner for Oaths. Any arrangement other than the above amounts to a nullity….. When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner for Oaths is not legally acceptable in Court. See also Chidubem v. Ekenna & 12 Ors (2008) LPELR – 3913, (2009) All FWLR (Pt. 455) 1692. With such clear position of the law, it means the evidence led by the Respondents at the trial amounted to nothing, as same was invalidated by reason of non-compliance with the rules of affidavit evidence. The Respondents therefore had no credible evidence to support their pleadings in the case, and/or to contest the claims of the Appellant at the trial. The Respondents’ pleadings were therefore, deemed abandoned, by reason of that tactical error of compromise in the making of the Respondents’ statement on oath, as confessed by DW1 Per ITA GEORGE MBABA JSC

Applying the principles pronounced in the above authorities to this case, it is clear that the witness deposition of CW was signed in the office of the counsel to the claimant and thereafter taken to the commissioner of oath to endorse. it is my view that the claimant having signed the witness deposition in the counsel’s office rendered it incompetent as the procedure has been spelt out before it can be filed in the court’s registry. The claimant’s counsel who was present in court during cross examination when CW admitted signing same in the office, yet in his final address cast aspersion on the court registry and submit that the seal and signature of the commissioner of oath means the document was sworn in a manner prescribed by the Act. The depositions are not signed before the commissioner for oaths, the interpretation given by the claimant’s counsel is not applicable. The further submission that the commissioner for oaths stamp and sign on the statement on oath is proof that the statement was signed before the right authority. Again, the claimant has failed to apply the decision in Shittu Usman Wurbo & Anor v Mallam Katsimu Yahaya Ahmed where the appeal court was emphatic that it was after the signature of the deponent had been signed that the commissioner endorsed same and that act was confirmed by CW under cross examination. For the counsel to hold the view that the response by CW is because she did not understand the question would be to ignore the position of the Apex court taken on same or similar facts. See Eneche v Minister of the FCT & Anor (2021) LPELR -52815 MUKHTAR JSC as he then was held it is settled law that an affidavit that is bereft of the requirements of the law, it is expected to meet (most especially not a mere defect in the format that can be admitted with the leave of court) will not be accommodated, (because, as it is in this case error is fundamental) but must be rejected and if already admitted must be expunged. The claimant has to swallow the bitter pill as the court is bound to follow the decisions of Appellate courts.

Based on the authorities cited above, it is my view and I so hold that the claimant having signed her deposition in her lawyer’s chambers means that the evidence is out of the window as there is no evidence supporting her pleadings. it is trite law that pleadings however strong and convincing the averments may be, without evidence of proof thereof go to no issue. Facts pleaded must be supported by evidence or they would be deemed abandoned. See Jatau & Anor v Santivi (2020) LPELR – 49603 (CA).

On the whole, as there is no evidence to support the claimant’s case, the case stands dismissed.

The second issue is whether the defendant is entitled to succeed on its counter-claim The defendant/counter claimant counterclaimed as follows:

4. An Order of this Honourable Court compelling the Defendant to pay to the Counter-Claimant the sum of N2,000,000.00 (Two Million Naira only) being the cost of this action.

5. Post-judgment Interest on the sums contained in reliefs 1, 2, 3 and 4 at the rate of 21% per annum, from the date of judgment until the judgment sum is liquidated.

On relief 1, the defendant’s witness in paragraph 8 of its counter claim averred that the defendant to the counter claim held on to the serviced apartment for six months and the counterclaimant had to pay N3, 000,000 rent to the landlord when she refused to hand over the apartment and when this is added to service charge comes to N3, 348, 500. The law is that he who asserts must prove. In order to succeed in its claim that the defendant to the counterclaim held on to the apartment, the counterclaimant must put before the court all necessary documents to show payment of the rent and the service charge. Even if the counterclaimant in its final address argued that the defendant to the counter claim remained in the apartment after termination of her employment, it then becomes mandatory to tender documents to show the amount paid and when the key was returned to the counterclaimant after leaving the apartment as the counter claimant in its Final written address submitted that the claimant did not give evidence that someone resided in the apartment. Here the counter claimant seems to forget the position of the law that it has a duty to lead evidence to show payment of the claimed sum as rent and overstaying in the apartment. There is no better way of describing the claim of the counterclaimant in this case than to say it is not proved. Exhibit AN12 is an email tendered by the counterclaimant and is reproduced below

KEYS TO OFFICE ACCOMODATION. CADOGAN ESTATE

Dear Amaka,

Good day and sure you are keeping safe. With regards to the above subject, may I request that you urgently return the keys to the apartment which was assigned to you at Cadogan Estate. You can return these to the office by either advising whom we can receive them from or sending them to the office address with courier mail.

I believe omolara has made several requests to this and we are yet to get receive positive response.

I would appreciate an urgent response to this request. Many thanks for your collaboration.

While there is evidence of demand of the keys to the apartment in cadogan estate by an email on the 25^th of October 2020, there is no evidence to show payment of rent to the landlord. I am reinforced in my view by the fact that the counterclaimant is not able to produce a single receipt for payment of rent after the termination of the claimant’s employment as a result of refusal to turn in the key to the apartment to the counterclaimant or how is the court to determine on how the counterclaimant arrived at N3, 348,500. See Union Bank of Nig Ltd v Prof A.O Ozigi (1994) 3 NWLR (pt 333) 385. The burden of proving a particular fact is on the party who asserts it. This onus, however does not remain static in civil cases, it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion the proper order which the court should make is one dismissing his claim. See Okobule v Oyagbola (1990) 4 NWLR (pt 147) 723. Duru v Nwosu (1989) 4NWLR (PT 113) 24. The onus is on the counter claimant to tender evidence of overstaying resulting in renewal of rent in the apartment. See A.M. Ltd v Volkswagen Nig Ltd (2010) 7 NWLR (Pt 1192) page 97 at 130 (A-B). There is absolutely nothing before the court to that effect. Leg 1 of the counterclaim fails and is dismissed.

Leg 2 is for N4,000,000.00 (Four Million Naira) for bedroom furniture, kitchen appliances, AC fittings and electronics removed by the Defendant from the apartment provided for her to the tune of N4,000,000.00 (Four Million Naira). The counterclaimant in paragraph 9 of the defendant’s counterclaim dated 5^th April 2022 averred that the defendant removed and made away with all the counter claimant’s properties in the apartment valued at the sum of N4,000,000. The counterclaimant has not told the court how it arrived at the sum of N4,000, 000. A party who is claiming for damages for value of goods detained or disposed of by another must plead in the statement of claim the prices and dates of purchase of the sold property. These are material facts the absence of which will disentitle him to the claim. See Sommer v F.H.A (1992) 1 NWLR (Pt.219) 551.

Leg 3 is for sum of 30,000 for repairs of door after forceful entry. exhibit AN 14 is a receipt from the carpenter for 80000, then 22,000 for key totaling 30,000 both dated 2^nd Nov and 30^th Oct 2020 respectively. There is evidence of an email to the claimant to return the ley to the apartment in Cadogan estate on 25^th of October and reminded the claimant of the urgency to return the keys which led to exhibit AN14 of N8,000 and N22,000 for the door. Having proved the amount, the counterclaimant is entitled to the sum of N30,000.

On the whole, the claimant’s case fails and is dismissed while the counterclaim of the defendant succeeds in part to the extent of N30,000 being cost of replacement of key to the apartment.

I make no order as to cost.

Judgment is entered accordingly.

HON. JUSTICE A.N. UBAKA

JUDGE