IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 03RD DAY OF MARCH,
2021
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/46/2017
BETWEEN:
RICHARD
OLUSHOLA AKINYEMI…………………CLAIMANT
AND
KEYSTONE
BANK LTD…………………….….…….DEFENDANT
J U D G E M E N T
The Claimant
commenced the instant action, vide Complaint and Statement of Facts
filed in this Court on 27/09/2017,
wherein the Claimant claimed against the Defendant, reliefs set out as follows:
1. A
Declaration that the Claimant having spent 9 years in the services of the
Defendant is entitled to 100% gratuity payment.
2. The
sum of N82,777,939.20 (Eighty-Two Million, Seven Hundred and Seventy-Seven
Thousand, Nine Hundred and Thirty-Nine Naira and Twenty Kobo) only being
gratuity due to the Claimant as per the provisions of the Human Capital
Policies and Procedures (HCP) Manual of the Defendant.
3. The sum of
N1,515,000.00 (One Million, Five Hundred and Fifteen Thousand Naira) only being
payment due to the Claimant at N101,000 per month from April 2014 to June 2015,
a period of 15 months for the failure by the Defendant to provide the Claimant
with a status car on his promotion as a Manager.
4. Cost of this action.
2. The Claimant is
a former manager of the Defendant before he voluntarily retired in July 2017.
His case briefly stated, is that he was initially employed by the defunct Bank PHB
Plc in April 2008. After the Defendant was issued a banking license and assumed
the deposits and liabilities of the defunct Bank PHB Plc, the Defendant offered
the Claimant appointment as its employee on 05/08/2011. The Claimant alleged
that by the policy of the Defendant, he is entitled to a status car as a
manager and that as a policy, the Defendant pays each manager a monthly sum of
N101,000.00 until the status car is allocated to the manager. The Claimant
further alleged that he is entitled to the said sum for fifteen months. He
further contends that at his retirement, he is entitled to gratuity as
contained in the Human Capital Policies and Procedures (HCP) Manual issued by
the Defendant. The Claimant’s contention is that the Defendant have failed,
refused and neglected to pay his entitlements in spite of his demand.
2. The Defendant joined issues with
the Claimant in the Amended Statement
of Defence made pursuant to order of Court on 08/02/2018 and to which it also subjoined a Counter - Claim.
The summary of the Defendant’s case is
that the employment of the Claimant is governed by terms and conditions issued
upon his employment; that the Human Capital Policies and Procedure (HCP) Manual
(Revised in 2013) has been amended in 2015 and the 2013 Manual is not
applicable to its staff since 2015; that the 2015 amendments does not cover any
gratuity scheme because members of staff are allowed individual gratuity scheme
in line with the Pensions Act; that the cars are allocated/given to its
managers are not entitlements but the allocation of the cars is dependent on
the availability; that it is not the Defendant’s policy to monetize any monthly
sum to its managers pending the allocation of status car. The Defendant denied the entirety of the
Claimant’s claim and maintained that it is not indebted to the Claimant.
3. The Defendant by
Counter-Claim further seeks
the reliefs set out as follows:
a. The sum of N4,228,782.89 (Four Million, Two Hundred and Twenty Eight
Thousand, Seven Hundred and Eighty-Two Naira, Eighty-Nine Kobo) being the total
indebtedness of the Claimant to the Defendant resulting from personal car loan
and loan/advances; net book value of the status car not returned to the Bank by
the Claimant on resignation; outstanding sum of leave grants and statutory
deductions.
b. Interest
on the said sum at the rate of 20% per annum until judgement is delivered and
at the same rate till the payment sum is fully liquidated.
c. The
cost of this suit.
The Claimant’s Reply to the Statement Defence and Defence to Counter-
Claim was filed on 11/12/2017.
4. At the plenary trial, the Claimant
testified in person by adopting his Statements on Oath as his evidence in support of his claim and he further tendered a total
of twelve
(12) sets of documents in evidence as exhibits. He was duly
subjected to cross-examination by the Defendant’s learned counsel.
The Banking Officer
of the Defendant, one Awwal Mohammed testified as the
Defendant’s sole witness. He equally adopted his Statements on Oath as his evidence – in – chief, and also tendered six (6)
sets of documents as exhibits. He was in turn cross-examined by the Claimant’s
learned counsel.
5. At the close of
plenary trial, parties filed and exchanged their written final addresses as
prescribed by the provisions of Order
45 of the Rules of this Court.
In the final
address filed on 07/07/2020,
learned counsel for the Defendant, Godwin Udondiah, Esq., formulated
two issues as having arisen for determination in this suit, namely:
1. “Whether the Claimant, based
on the state of pleadings, evidence adduced and documents tendered, is entitled
to his claims as endorsed on the Statement of Facts.”
2. “Whether the Defendant is
entitled to its Counter-Claim.”
In the final
address filed on behalf of the Claimant on 27/07/2020,
Claimant’s learned counsel, Maryam Dan-Abdul, Esq., equally
raised two issues as arising for determination in this suit, that is:
1. “Whether the Claimant has
proved his case by preponderance of evidence and entitled to his claims as
contained in the Statement of Facts.”
2. “Whether the Defendant has
proved its Counter-Claim.”
The Defendant’s Reply on Points of Law was filed on 03/12/2020.
6. I have painstakingly examined the
totality of the pleadings filed by both parties in contention; the reliefs they
claimed respectively, the totality of the admissible and relevant evidence
adduced at the trial; and the written addresses and oral summations of learned
gentlemen for the two parties; and my view is that two issues call for
determination in this suit. Without prejudice to the other issues formulated
for determination by the respective learned counsel, I shall proceed to
determine this suit on the basis of the issues set out as follows:
1.
Whether
or not the Claimant has established his
claims for the award of the declaratory reliefs and other reliefs and thereby entitled to be awarded general damages
as claimed.
2.
Whether the Defendant has discharged the burden of
proving its entitlement to the Counter-Claim?
7. Now, I would
begin, by determining at first the technical and procedural points of law
raised by learned counsel for the Defendant in his final address.
The Defendant’s learned counsel raised
the issue of the relevance of Exhibits C4A, C4B and C4C to the case of the
Claimant and whether Exhibit C8 is not inadmissible. The argument of learned
Defendant’s counsel in relation to Exhibits C4A, C4B and C4C is that have no
relevance to the Claimant’s contract of employment with the Defendant, that
Exhibit D1, is the document that governed the contractual relationship between
the parties; that Exhibit D1 is complete and comprehensive and that oral
evidence is inadmissible to vary or contradict its contents. Learned counsel
submitted that no weight should be attached to the exhibits. On the authority
of Arije Vs Arije [2018] LPELR
44193 and the provision of Section 128 (1)) of the Evidence Act, 2011,
learned counsel urged the Court to expunge the said exhibits.
Learned Claimant’s counsel in reaction
posited that the said exhibits established that the Claimant was an employee of
Bank PHB which employment was never terminated but was renewed by the Defendant
via Exhibit D1.
8. I have taken a careful perusal of
the said exhibits including Exhibit C4 which forms part of the exhibits in
contention. Parties are ad idem that
the said exhibits are the letter of offer and terms of employment of the
Claimant with Bank PHB. The Claimant’s letter of offer of appointment as an
employee of the Defendant on the grade level of Deputy Manager was tendered by
the Defendant as Exhibit D1.
Paragraph 3 of Exhibit D1
states inter-alia as follows:
“Also, your employment
will be placed on a probation period of six (6) months, after which your
confirmation will be subject to the achievement of the bank’s corporate
goals assigned to you.”
(Underlining for emphasis)
From Exhibit D1 as reproduced above, I
cannot agree with the proposition by the learned Claimant’s counsel that the
Claimant’s appointment with the Defendant was only renewed. I am of the view
that the employment was based on fresh terms; hence, the Claimant was placed on
probation subject to confirmation.
9.
It is not the law that every document admitted by a court of law must be
assigned probative value. A document could be admitted on the ground of
relevancy but the court may not attach any weight on it, in the light of the
circumstances of the case. In other words, admissibility which is based on
relevancy is distinct from weight to be attached to the document.
See Nwabuoku & Ors Vs Onwordi
& Ors [2006] LPER 2082
Exhibits C4, C4A, C4B and
C4C which are documents relating to the
Claimant’s employment with Bank PHB attach have no probative value and are
hereby accordingly expunged.
10. On the issue of admissibility of
computer generated documents, relying on the cases of Unical & Ors Vs Effiong & Ors [2019] LPELR 47976; Omisore
Vs Aregbesola [2015] 15 NWLR (Pt 1482) 205, learned counsel for the
Defendant submitted that the Claimant did not fulfil the conditions required in
Sections 84 (2) and 84 (4) Evidence Act (supra) for admissibility of computed
generated evidence such as Exhibits C1, C5, C5A and C8. Learned counsel
therefore urged the Court to expunge the said exhibits which were wrongly
admitted.
The argument of the learned Claimant’s
counsel in reaction to the submission of learned Defendant’s counsel on admissibility
of the said exhibits is that, learned Defendant’s counsel has a duty to raise
objection at the point the documents were tendered and that since there was no
objection when the said exhibits were tendered, learned Defendant’s counsel
submission that the documents be expunged by the Court is an afterthought.
Learned counsel for the Defendant’s
submissions in his Reply on Point of
Law, in turn is centrally to the effect that the Claimant’s submission
is not the correct position of the law. He supported his proposition with the
case Agagu Vs Dawodu (supra)
also cited by the Claimant’s counsel.
11. I do not agree with the learned
Defendant’s counsel that Exhibit C5 and C5A are computer generated documents.
The exhibits are photocopies of the terms of appointment and employee code of
conduct of the Defendant which were duly authenticated by the Claimant.
However, undoubtedly, Exhibits C1 and
C8 are computer generated documents. I agree with the submission of learned Defendant’s
counsel, that the position of law was not correctly stated by the learned Claimant’s
counsel. Learned Claimant’s counsel had either deliberately or inadvertently
omitted some key portions of the law as stated in the Agagu case.
12. Now, on the authority of Kubor
Vs Dickson [2012]
LPELR-9817(SC), the Supreme Court, per Onnoghen,
JSC, affirmed that computer-generated evidence or documents which did
not comply with the pre-conditions laid down in Section 84(2) were
inadmissible. The Apex Court further held as follows:
“It
is of course the duty of counsel to object to inadmissible evidence and the
duty of the trial Court anyway to refuse to admit inadmissible evidence, but if
notwithstanding this evidence is still through oversight or otherwise admitted,
then it is the duty of the Court to when it comes to judgement to treat the inadmissible
evidence as if it had never been admitted
In the instant case, the Claimant admitted
under cross-examination that Exhibit C8 was downloaded from the website of the
Defendant, while Exhibit C1 is correspondences made through e-mail. However, there
was no oral evidence given by the Claimant to lay the necessary foundation
or requirement for admissibility of a computer generated document as provided
by Section 84 (1) and (2) of the
Evidence Act (supra). The supporting certification required under Section 84 (4) of the Act is
also glaringly absent in Exhibits C1 and C8. Similarly, there are no
particulars of any device used in the production of the said exhibits. In other
words, the exhibits are rendered inadmissible by the Claimant’s flagrant
defilement of the inviolable provisions of Section 84 of the Evidence Act. And
I so hold.
13. Perhaps I should note at this
point, that this argument was raised by the Defendant in a sister case, NICN/KD/67/2017
– Ahmed Aruwa Vs Keystone Bank Ltd wherein judgement has been
delivered.
In that case, learned counsel for the
Claimant offered the same argument which she regurgitated in the instant case.
Citing the case of Agagu Vs Dawodu
(supra), learned Claimant’s counsel made this statement:
“It is incompetent for a
Court having admitted a document as an exhibit in evidence to expunge them in
its judgement.”
The Court held in its Judgement of 29/09/2020
Paragraph 23, Page 16 that:
“The
learned counsel for the Claimant’s argument that Exhibit C6 was admitted in evidence without objection is of no
moment. The fact that a document has been admitted with or without objection
does not necessarily mean that the document has established or made out
evidence contained therein. This is because and this is also settled in a line
of decided authorities, that where inadmissible evidence has been admitted, it
is the duty of the Court, not to act upon it. It is immaterial that its
admission was as a result of consent of the opposite party or that party's
default in failing to take an objection at the proper time. It is rather
unfortunate that the learned Claimant’s counsel made submission in her written
address that it is incompetent for a Court to expunge exhibits in its judgement
after admitting the exhibits. I only need to state that the choice of language
is not only unprofessional but discourteous (indeed disrespectful) and so must
be deprecated.
For the
benefit of the learned counsel, the law is elementary that a judge has the
right to expunge from the record a document wrongly admitted. The Court can do
so suo motu at the point of writing judgment and this can be done without
prompting from any party. See B.M.N.L Vs Ola Ilemobola Ltd
[2007] 14 NWLR (Pt 1053) 109 [also reported in [2007] All FWLR (Pt. 379)
1340 @ 1367 - 1368(SC)].”
My decision on this issue in the
sister case abides in the instant case. In the circumstances therefore, Exhibits
C1 and C8 are rendered and inadmissible and hereby accordingly expunged
from the records of proceedings in this suit. And I so further hold.
14. Now, proceeding to the substantive
claims, I should state from the outset that, after a critical examination of
the totality of the evidence adduced and documents tendered by parties on both
sides, the Court, in this judgement, has devoted attention only to issues
considered materially in dispute between the parties in this suit and ignored
matters considered not crucially relevant to the determination of the main
dispute in the suit. This is in line with the position of the law that in the
determination of a suit before it, a Court is duty bound to consider material
evidence adduced on real issues in controversy between the parties and is
entitled to ignore irrelevant evidence adduced on issues not joined by parties.
See Ajao Vs Alao [1986] NWLR (Pt
45) 802; Adebanjo Vs Brown [1990] 3 NWLR (Pt 141) 661; Spasco Vs Alrine
[1995] 8 NWLR (Pt 416) 667; Ajomiwe Vs Nwakanma & Ors [2019] LPELR
3219(CA).
15. I am also not unmindful
of the fact that the Claimant has sought declaratory reliefs in this suit; the
implication being that the burden for it to prove the allegations leveled
against the Defendant exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act
2011. The settled position of the law, from time immemorial and as
correctly submitted by learned counsel for the Defendant, is that even though the power to make a binding
declaration of right is discretionary in nature; however a Court would only
grant declaratory reliefs sought in an action principally on the basis of the
evidence adduced by the Claimant without recourse to the evidence called by the
Defendant. The burden of proof on the Claimant in establishing a declaratory
relief to the satisfaction of the Court is somewhat heavy, in the sense that
such relief is not granted even on the admission of the Defendant, as the
Claimant must lead credible evidence in proof of the declaration of right he
seeks from the Court. In other words, even though it is an elementary rule of
pleadings that what has been admitted requires no further proof, one of the
exceptions to that rule is that a declaratory relief cannot be granted without
evidence; and it is not granted based merely on default of defence or on
admission by the adverse party. Declarations are granted upon proof by cogent
and credible evidence led by the Claimant/Plaintiff. See the authorities of Dumez Nigeria Limited Vs Nwakhoba
[2009] All FWLR (Pt 461) 842; Ogolo Vs Ogolo [2006] All FWLR (Pt 313) 1;
Ndayako Vs Dantoro [2004] 13 NWLR (P. 889) 187
16. The task that
the Court is to undertake now, in the first instance, is to examine the
evidence led on the record by the Claimant in order to determine whether or not
he has satisfactorily established his entitlements to the declaratory relief
and other reliefs claimed.
The declaration
being sought by the Claimant is stated in relief (i):
that the Claimant having spent 9 years in the services of the Defendant is
entitled to 100% gratuity payment. The gratuity being claimed is stated in paragraph 22 (2) of the Statement of
Facts. The Claimant also claims for payment from the Defendant for its
failure to provide the Claimant with a status car for 15 (fifteen) months on
his promotion as a manager.
17. To establish
his claim, the Claimant relied on Exhibits C5 and C5A, C6, C7, C2 and C3,
namely the terms of appointment and code of conduct of the Defendant, letter of
promotion, letter of resignation and letter of demand by Claimant’ solicitors
and the reply of the Defendant
The Claimant had
alleged, in paragraphs 16 and 17 of his
Deposition on Oath, that he is entitled to be paid gratuity as
contained in the Human Capital Policies and Procedures (HCP) manual issued by
the Defendant; that his salary was N766,462.40 as at June 2017 when he retired and
that the computation of is his gratuity is N82,777,939.20.
18. On its part,
the Defendant through DW1, its sole witness, denied the entirety of the
Claimant’s claim. DW1 testified that the
HCP manual revised 2013, upon which the Claimant based his claim has been
amended by the Defendant in 2015 and that the HCP 2013 manual is inapplicable
to the Claimant and the other members of its staff. DW1 denied the fact that
the Defendant has a policy to monetize any sum on a monthly basis to its
manager until a status car is allocated or given. DW1 further testified that
the Claimant’s net entitlement had been properly and correctly computed; that
same has been paid with his staff account and that the Claimant was informed of
his entitlements and indebtedness after his resignation from the services of
the Defendant.
19. Now, the
general rule is that a Claimant who claims must prove and in labour relations,
an employee can only claim if an entitlement is shown. An entitlement is shown
by reference to the law that gives it, the collective agreement from which the
entitlement was agreed upon between the contracting parties or the conditions
of service governing the relationship of the employer and his/her employee. Furthermore,
the employee who claims must show how he came by the quantum of the sums
claimed.
This Court has
cautioned in a plethora of cases (See Mr.
Mohammed Dungus & Ors Vs ENL Consortium Ltd [2015] 60 NLLR (Pt 208)
39), that it may be fatal if, in
proving an entitlement, and even if the instrument is referred to, the employee
does not indicate the clause, section, article or paragraph that
grants the entitlement claimed given that the employee should not expect that
it is the Court that will shop for the relevant article that substantiates the
claim prayed for. This is the context within which the Claimants can succeed in
the present case.
20. Keeping this principle of law in focus, I have carefully considered
the Claimant’s claim as stated in paragraph
22 of the Statement of Facts. Did
the Claimant show to this Court any evidence on how he computed his claim for
these amounts? The answer to this poser is in the negative. No iota of evidence
was proffered by the Claimant to prove:
a) His monthly salary;
b) The document stating his entitlement to the monthly payment of
N101,000.00 for failure the Defendant’s to deliver status car as a manager;
c) The document stating his
entitlement to gratuity as claimed
While answering questions under cross- examination, the Claimant testified
as follows:
“I do not have in Court the document that shows communication of the
payment of N101,000.00 until the official car arrived. I am claiming N82
Million. This is stated in Exhibit C8.”
Exhibit C8, the document relied upon by the Claimant for his entitlement
to gratuity has been expunged as being inadmissible.
The point to be made therefore is that the Claimant failed to clearly plead or adduce any cogent or
compellable evidence to prove his entitlements as claimed. And I so hold.
On the basis of the foregoing analysis therefore, I must and I hereby
resolve the first issue for determination in this suit against the Claimant. It is therefore the conclusion of the Court
that the Claimant’s claim lacked in merit, in substance and in probity. The
suit shall be and is hereby accordingly dismissed.
21. I now proceed to determine the second issue.
Issue two is to answer the question on whether or not the Defendant has discharged
the burden of proving its entitlements to the Counter-Claim. There is no doubt that a Counter-Claim is a separate
and distinct claim from the main claim. This is so because even if the main
claim fails or is withdrawn or struck out, the Counter-Claim would survive. To
put it differently, the same standard of proof required to prove the main claim
is also required to prove the counter-claim. See Attorney - General of Lagos State Vs
Attorney - General of the Federation [2004] 12 SCNJ 1; Ogli
Oko Memorial Farms Limited & Anor Vs Nigeria Agricultural and
Co-operative Bank Ltd & Anor [2008] 4 SCNJ 436.
22. The Defendant’s claims from the Claimant the sum of N4,228,782.89 being
the total indebtedness of the Claimant to the Defendant for personal car loans,
loans/advances, net book value of the status car not returned to the bank by
the Claimant on resignation, outstanding sums of leave grants and statutory
deductions.
In proof of the claims, the DW1 testified as the sole witness on behalf
of the Defendants. The particulars of the sum claimed are stated in
paragraph 21 of the Counter-Claim.
DW1 testified that the Claimant was employed by the Defendant on
05/08/2011; that he was promoted on 12/03/2014 and that he voluntarily retired
on 10/07/2017.
DW1 further testified that while in the employment of the Defendant the
Claimant obtained personal loans/advances; that the Claimant was servicing the
loans while he was still in the Defendant’s employment and that at his
resignation, the Claimant has an outstanding debt of N333,848.48
23. The further testimony of DW1 is that the Claimant applied for a
personal car loan of N4,500,000.00 in September 2012; that the loan was
approved by the Defendant on 29/11/2012 and that the outstanding debt on the
car loan at the resignation of the Claimant stood at N401,344.18.
DW1 also testified that in June 2015, the Claimant was allocated a status
car (Nissan salon) valued at N6,615,000.00, that the vehicle was duly amortized
at 25% monthly amounting to N137,812.50 over a period of 4 years; that the
Claimant used the status car for 25 months and did not return the vehicle to
the Defendant at resignation and that the Net Book Value of the Nissan salon
car at the resignation of the Claimant stood at N3,169,687.50
DW1 testified further that the Claimant did not give the required notice
as contained in the terms of employment and he is thereby required to pay
N371,542.73 in lieu of notice and that
the Claimant is required to refund the sum of N213,764.31 being the amount
outstanding for 175 days the Claimant did not work for the leave allowance he
was granted.
DW1 also testified that the Defendant had credited the Claimant’s account
with the sum of N285,389.97 as entitlements due to him and that the Claimant is
indebted to the Defendant in the sum of N4,228.782.89.
The Claimant’s letter of employment
and terms of employment dated 05/08/2011, the letter of promotion dated
12/03/2014, the staff loan documents/agreement, schedule of balance of the
Claimant, a copy of the Human Capital Policies and Procedures (HCP) Manual 2013
(with 2015 Amendments) namely; Exhibits D1, D2 D3, D4, D5 and D6
were admitted in evidence in further support of the Defendant/Counter-Claimant‘s
case.
24. In defence to the Counter-Claim,
the Claimant in his additional testimony denied the entirety of the claim. He
testified that he was unaware of any payment for statutory deductions, tax and
pension; that the staffs of the Defendant are entitled to leave grants whether
the leave is enjoyed or not; that he had paid for one month salary in lieu of
notice, the loans and advances and for the status car allocated to him. The
Claimant further testified that he is not indebted to the Defendant in the sum
claimed or in any sum whatsoever.
25. The pertinent question at this
juncture is: has the Defendant discharged the burden of proving its claim
against the Claimant?
It is true that in civil cases, the
onus of proving an allegation is on the Claimant and the onus does not shift
until he has proved his claim on the preponderance of evidence and balance of
probabilities. It is after the burden of proving the case has been discharged
in accordance with the above principle of law that the burden shifts and
continues to shift. Thus, the onus of proof is not static as it shifts from
time to time. But where a party fails to discharge this burden then, the
opponent need not prove any fact and the party alleging cannot rely on the
opponent’s case.
See: Longe Vs FBN Plc [2006] 3 NWLR (Pt 967) 228, Iman
Vs Sheriff [2005] 4 NWLR (Pt 914) 8; Kala Vs Potiskum [1998]
3 NWLR (Pt 540)1.
26. From the testimony of DWI, it is
apparent that the case of the Defendant is hinged on documentary evidence,
Exhibits D1 to D6.
Now, documentary evidence, no matter
relevant, cannot on its own speak for itself without the aid of an explanation
relating its existence.
The law is
firmly settled that a party relying on documents in proof of his case must
specifically relate each of such documents to that part of his case in respect
of which the document is being tendered. The Court cannot assume the duty of
tying each bundle of documentary exhibits to specific aspect of the case for a
party when that party has not done so himself. The foundation of the principle
is that it is an infraction of fair hearing for the Court to do in the recesses
of its chambers what a party has not himself done in advancement of his case in
open Court.
See Enudi & Anor Vs Osumili [2012] LPELR 9844; Hadyer Trading Manufacturing
Ltd & Anor Vs Tropical Commercial Bank [2013] LPELR 20294; Lumatron Nigeria Ltd & Anor Vs First City
Monument Bank Plc [2016]
LPELR 41409
With regards to the Defendant/Counter-Claimant’s
claims for outstanding indebtedness of N333,848.48 being balance on personal loans and advances
and the claim for N3,169,687.50 as the Net Book Value of the Nissan salon car
(status car) at the resignation of the Claimant, I am of the view that the Defendant merely dumped the
documents, Exhibits D4 and D6
on the Court.
In simple
terms, dumping a document on Court during trial, means putting the document in
evidence as an Exhibit without the vital evidence of witness/s to relate or
link it with the specific aspect or part of the case in support of which the
document was tendered or put in evidence by a party.
Having regard to the facts that the
Defendant merely dumped the exhibits on the Court without relating them to its
case or claim, the Defendant cannot be said to have proved its case. And I so
hold.
On the Defendant/Counter-Claimant’s claim for the sum of N213,764.31
being the amount outstanding for 175 days the Claimant did not work for the
leave allowance he was granted, there is no scintilla of evidence to establish
the Defendant is entitled for payment of
this amount from the Claimant as outstanding sum as balance of his leave grant.
The Defendant/Counter-Claimant has not discharged the burden to prove this
claim. My view is that the
attempt by the Defendant to claim unearned leave grant without proving the
claim is in bad faith.
And I so hold.
The Defendant in further support of the claim of N401,344.18 being outstanding
balance on the car loan obtained by the Claimant, and N371,542.73 payment in
lieu of notice, tendered in evidence Exhibits D1 and D3, the letter and terms
of employment and a set of document of the car loan agreement.
While answering questions under cross-examination, the Claimant further
reiterated that he paid all the loans and that even though he does not have to
prove his assertion, but that his account was nil at the time he resigned his
appointment.
The submissions of the learned counsel for the Claimant is that Exhibit
C7 has established that the Claimant is not indebted to the Defendant and has
discharged the onus of prove.
Now, Exhibit C7 is the
Claimant’s letter of resignation. I have undertaken a cursory review of the
said exhibit and I hereby take liberty to reproduce the relevant portion:
“All
outstanding indebtedness standing against me should be deducted from my
entitlement with the Bank. Exit interview has been done via the portal today, 7th
July, 2017.”
I have equally
crucially reviewed Exhibit D3, the car loan agreement.
In paragraph 2 thereof, the parties
agreed:
“That he/she will
continue in the employment of the Bank for a minimum period of 12 months from
the date of disbursement of the Facility or until full repayment of the
Facility has been made, whichever is later.
That in the
event that he/she disengages from the employment of the Bank for any reason
whatsoever before the expiration of 12 months from the date of disbursement or
before the full repayment of the Facility, any balance outstanding shall
become immediately repayable and he/she agrees that the Bank shall only accept
his/her resignation subject to full payment of all the outstanding indebtedness
on the Facility.
(Underlining
mine for emphasis).
Now, did the
Defendant accept the Claimant’s voluntary resignation? The answer is in the affirmative. In
paragraph 15 of the Statement of Facts, the Claimant averred that he
voluntarily resigned his appointment with the Defendant in June 2017 and same
was accepted by the Defendant. This averment was admitted by the Defendant in
Paragraph 1 of the Amended Statement of Defence and Counter-Claim.
It is an elementary
principle of pleading which no longer requires precedents or legal authorities;
that facts admitted needs no further prove. A party does not set out to prove
that which is admitted. In the circumstances therefore, the Defendant’s claim
for the outstanding balance of N401,344.18 fails. And I so hold.
The Defendant’s
claim for N371,542.73 being payment in lieu of notice is unsubstantiated. By
Exhibit C7, the Claimant gave his consent and authority to the Defendant to deduct
all outstanding indebtedness from the entitlement due to him from the
Defendant. The testimony of DW1 is that the sum of N285,389.97 was credited to
the Claimant’s account being all entitlements due to him. However, the
Defendant did not state the tabulation or breakdown of the entitlements paid.
The claim for this sum fails. And I so further hold.
In totality, the Defendants’ Counter –
Claim fails in its entirety. I so hold.
In the final analysis, the Claimant’s
claim and the Defendant’s Counter-Claim lack merit and substance and are hereby
accordingly dismissed.
Parties
shall bear their respective costs.
SINMISOLA O. ADENIYI
(Hon. Judge)
03/03/2021
Legal representation:
Mohammed Sani
Esq. for Claimant
Godwin
Udondiah Esq., with Linda Etafia Esq. and N.N. Bin Esq. for Defendant