IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON TUESDAY 1ST DAY OF DECEMBER, 2020
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/16/2017
BETWEEN:
SEAGREEN PHARMACEUTICALS
LTD…………CLAIMANT
AND
ADAJI GABRIEL……………………………………DEFENDANT
J U D G E M E N T
The Claimant is a Pharmaceutical
Company engaged in the importation of drugs, medicines and poisons to
registered distributors, wholesalers and hospitals. The case of the Claimant as
gleaned from the claims before the Court is that the Defendant was offered employment
as a sales representative with the Claimant upon terms and conditions mutually
agreed by both parties and that the Defendant was duty bound to effectively
manage the accounts and the returns of all the products supplied by the
Claimant throughout the duration of his employment. The Claimant alleged that the
Defendant always defaulted in making good returns of the products supplied to
him. The Claimant further alleged that the Defendant had been warned on several
occasions on his poor performance and execution of duties but that in spite of
the warnings, the Defendant incurred indebtedness causing a loss to the
Claimant. The Claimant also alleged that Defendant was summarily dismissed when
he refused to make returns of the goods/products and failed to refund the money
for the goods.
2. Based on
the above summarized facts, the Claimant commenced the instant action; vide Complaint
and Statement of Facts filed in this Court on 01/06/2017 whereby it
claimed against the Defendant, the reliefs set out as follows:
A. The sum of Three Million, Ninety
Three Thousand, Six Hundred and Fifty Three Naira (N3,093,653.00)being the
returns sales of product, materials and goods supplied to the Defendant by the
Claimant as shown in the ledger of account of Adaji Gabriel.
B. The sum of One Hundred Thousand
Naira (N100,000.00) being legal fees which the Defendant has forced the
Claimant to incur as a result of his refusal to pay the returns of the products
supplied.
C. The sum of Five Hundred Thousand
Naira (N500,000.00) as general damages for general inconvenience and untold
hardship caused by the Defendant on the Claimant.
D. Cost of filing this suit.
3. The Defendant
joined issues with the Claimant by filing a Statement
of Defence on 22/06/2017
to which a Counter-Claim was
subjoined. The Defendant contended, in summary, that he duly and regularly made
returns and accounted for products sent to him every month throughout the
duration of and at the cessation of his employment. The Defendant alleged that
the products which the Claimant sent through a vehicle could not be accounted
for because the products got lost in transit and that his monthly returns was
affected due to unrest in the territories covered by him. The Defendant
contended that the Claimant failed to pay his salary, expenses and allowances
for the months of November and December 2014. The Defendant further contended
that he found it impossible to continue to work with the Claimant and therefore
served on the Claimant a notice of resignation of his appointment. According to
the Defendant, after the receipt of his notice of resignation, the Claimant
called him up for a reconciliation of account and that he issued a hand over
note after the account was reconciled. The Defendant contended further, that
the Claimant is indebted to him for unpaid salaries, floating expenses and
commissions, terminal benefits and demanded for the release of his original
credential which had been withheld by the Claimant.
4. Whereof the
Defendant Counter - Claimed against the Claimant as follows:
A. The sum of One Million, Thirty-
Three Thousand, Nine Hundred and Eighty-Five Thousand Naira only
(N1,033,985.00) being the total terminal benefits due to the Defendant from the
Claimant.
B. An Order compelling the Claimant
to return to the Defendant the originals of the Defendant’s credentials.
C. The sum of Five Hundred Thousand
Naira (N500,000.00) being general damages for the hardship and suffering
inflicted on the Defendant and his family by reason of non-payment of his
terminal benefits and withholding of his credentials.
The Claimant
further filed a Reply to the Defendant’s Statement of Defence and Defence to
Counter Claim on 07/07/2017.
5. At the plenary
trial, one Christian Ezema, the Area Sales Manager of the Claimant
testified as her sole witness. He adopted his Statement on Oath as his oral testimony and further tendered
six
(6) sets of documents as exhibits to further substantiate the
Claimant’s case. He was thereafter cross-examined by the Defendant’s learned
counsel.
The Defendant testified by himself also
as the sole witness. He adopted his Statement
on Oath and further tendered in evidence nine (9) sets of
documents as exhibits. He was further subjected to cross-examination by the
Claimant’s learned counsel, after which the Defendant closed his case.
6. Parties were ordered by the Court to file and
exchange their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
I should note that after the written address was
filed on the behalf of the Defendant on 27/01/2020,
the Claimant was ordered to file its written address and the case was adjourned
to 04/03/2020 for parties to adopt their written addresses. However, in spite
of the adjournment, the Claimant refused and/or failed to file its address.
Consequently, upon the oral application made by the learned Defendant’s counsel
on 21/10/2020, the Court foreclosed the Claimant’s right to file a written
address.
In the final address which was adopted
on 21/10/2020, the learned
counsel for the Defendant, S. I. Unoakhe Esq., formulated two
issues as having arisen for determination in this suit namely:
i.) Whether
the Claimant has adduced sufficient evidence to prove its case before this
Honourable Court.
ii.) Whether
the Defendant has established his Counter-Claim before this Honourable Court.
7. In order to resolve the conflict
that has arisen between the parties, on the basis of the admissible evidence on
record, the reliefs claimed and in consideration of the applicable legal
principles, I shall adopt the issues framed by the Defendant’s learned counsel;
and in doing so, I had also
carefully considered the totality of evidence and the written submissions
canvassed in the Defendant’s written final address. The Court shall endeavour
to make specific reference to arguments canvassed in the final submission as it
is considered needful in the course of this judgment.
8. The case of the
Claimant as told by CW1 is simple and straightforward. The
fact that the Defendant was a sales representative in the employment of the
Claimant is not in contention as between both parties. The documents relating
to the Claimant’s appointment and summary dismissal were tendered in evidence
as Exhibits
C3, C4 and C5 respectively.
Whilst the basis of the Claimant’s
action is that it incurred indebtedness due to the Defendant’s poor performance
and failure to return products supplied by the Claimant to the Defendant; on
the other hand, the Defendant, contended that he resigned his appointment for
failure of the Claimant to pay his salaries, entitlements and commissions in
spite of the fact that he diligently conducted his duties with the Claimant.
9. The task 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 it has
satisfactorily established its entitlement to the reliefs claimed.
Before proceeding to resolve the issue
in contention, I note that the
Defendant’s learned counsel raised a germane issue of law in his written
submissions, which arises from the document tendered by the Claimant in prove
of its case. It is imperative to resolve this issue at this point.
Learned Defendant’s
counsel made reference to Exhibit C6, the ledger
account of the Defendant; and argued that CW1 was not the maker of the document
and on the basis of this urged the Court to discountenance the exhibit as same
has no probative value. Learned counsel cited in support of his proposition the
provision of Section 83 (1) of the
Evidence Act 2011 and the cases of Nimasa
Vs Hensmor (Nig) Ltd [2015] 5 NWLR (Pt 1452) 278; Okereke Vs Umahi
[2016] 11 NWLR (Pt 1524) 438; Trade Bank Plc Vs Dele Morenikeji (Nig) Ltd
[2005] 6 NWLR (Pt 921) 309.
10. Now, the evidence of CW1 under
cross – examination is that Exhibit C6 was issued by the Account’s Section of
the Claimant; that he (CW1) did not work in the Account’s Section; that he
cannot recall the amount recovered from
the Defendant; that he did not know how the amount stated in the exhibit was
calculated; that he could not remember the amount that was recovered from the
Defendant as same was insignificant and that he also could not remember the last
amount that was paid as the Defendant’s salary as contained in the said Exhibit
C6.
11. Undoubtedly and as correctly
submitted by learned counsel for the Defendant, CW1 was not the maker of
Exhibit C6. The general rule is that a document should be
tendered through its maker: vide Section
83 (1) of the Evidence Act 2011.
I should further note that the learned
Defendant’s counsel did not raise an objection to the admissibility of the said
document when it was tendered. It is an established principle that where no objection
is raised when a document is offered in evidence, the document will be admitted
and acted upon and the opposing party cannot later complain on its
admissibility, unless the document is primarily inadmissible in law. This is
because a document must first be admissible before it can be acted upon by the Court,
whether or not objection was raised at the point of tendering the document. In
other words, admissibility and weight to be attached to a document amount to
two different issues. Emphasizing the difference between admissibility and the
weight that is to be attached to a document, Tobi, JSC in Omega
Bank Nigeria Plc Vs O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547, at pages 28-29 of the E-Report, unequivocally stated:
“Let
me take the issue of non-maker of the document tendering it. It is the general
principle of law that a maker of a document is expected to tender it in
evidence. There are two basic exceptions to this principle of law;
(a)
The maker is dead. (b) The maker can only be procured by involving the party in
so much expense that could be outrageous in the circumstances of the case.
The
rationale behind this principle of law is that while a maker of a document is
in a position to answer question on it, the non-maker of it is not in such a
position. In the latter situation, a Court of law will not attach any probative
value to the document and a document that a Court does not attach any probative
value is as good as the mere paper on which it is made, after all
probative value is the root of admissibility of evidence. I should not be
understood as saying that documentary evidence cannot be admitted in the
absence of its maker. As a matter of law, documentary evidence can be admitted
in the absence of the maker. See Igbodim
Vs Obianke [1976] 9-10 SC 179. After all relevance is the key
of admissibility. In the hierarchy of our adjectival law, probative value comes
after admissibility. And so a document could be admitted without the Court
attaching probative value to it.”
12. To begin with, and much as it is
relevant in the circumstance; CW1 was not the maker of Exhibit C6 but could
tender the exhibit as what he received. As can be deduced from the testimony of
CW1 during cross-examination by the learned Defendant’s counsel, the veracity
of the contents of Exhibit C6 cannot be supplied by CW1. The maker of Exhibit
C6 was not called in evidence. No reason was given by the Claimant for not
calling the maker to testify as witness. Therefore, there was no opportunity provided
by the Claimant for the cross examination of the maker of Exhibit C6 in order
to establish the truth of its contents which was admissible in evidence,
without doubt, but it had no probative value as it was not tendered by its
maker. By the provisions of Section
37(a) of the Evidence Act (supra), Exhibit C6 qualifies as a
documentary hearsay. Not being the maker of the document, CW1 lacks the
competence to testify on it or entertain questions pertaining to its content.
See the authorities of Odumade
Vs Ogunnaike [2010] LPELR(SC); Statoil Nigeria Ltd Vs
Inducon (Nig) Ltd [2012] LPELR-7955(CA); Osagiede Vs Uwabor [2014] LPELR 22664; Ezuruike Vs Seven Up
Bottling Co Plc [2018] LPELR 44626; upon which I lean to hold that Exhibit C6 lacks
veracity and cannot be acted upon by the Court. In the absence of the maker of
Exhibit C6, no weight can be attached to it with regard to the claim of indebtedness
of the Defendant to the Claimant. And I so hold.
13. Added to this, is the fact that the
said Exhibit C6 was undated and unsigned, consequent upon which it is fraught
with doubt as to whether it was not a cooked document made solely for this
matter. The law is settled that an unsigned document is a worthless paper. It
is inadmissible and where admitted, it cannot be relied upon by the Court to
resolve any controversy between the parties as no weight or probative value can
be attached to an unsigned document. See Seidu Vs Attorney-General of Lagos State [1986] 2 NWLR (Pt 21)
165; Anaeze Vs Anyaso [1993] 5 SCNJ 151 at 168 – 169; Union Bank Plc
Vs Toyinbo [2008] LPELR 5056 all to the effect that it is well settled
that an unsigned document is worthless and void and is entitled to no weight at
all in law. Such a document as Exhibit C6,
unsigned as it was, is incapable of establishing the fact that Defendant
incurred losses and that he is indebted to the Claimant. And I so hold.
14. It is the
learned Defendant’s counsel further submission that the Claimant failed to
establish the Defendant’s indebtedness and its entitlement to the claims. Learned
counsel argued that evidence from CW1 elicited during cross – examination is
that money was recovered from the Claimant’s customers in the list of debtors
as contained in the handover note but that the Claimant did not state the
amount recovered to determine the exact amount of the Defendant’s indebtedness
as alleged.
It is an elementary law
which needs no citation of any credible evidence,
that the Claimant is duty bound to
prove his claims by demonstrating to the Court how it arrived at the alleged
amount.
The facts of the
alleged indebtedness are stated in paragraphs
10, 11, 12, 13, 14, 15 and 16 of Witness Statement on Oath. Aside from
the facts stating the alleged non performance and execution of the Defendant,
which according to the Claimant led to the summary dismissal of the Defendant, the Claimant did no more than to simply
allege indebtedness of the Defendant and placed reliance on Exhibit C6 which I earlier held as lacking probative value. As it
stands, there is nothing before the Honourable Court worthy of consideration to
warrant granting relief (1) sought by the Claimant. Relief (1) accordingly
fails.
15. Relief (2) is a
claim for the sum of N100,000.00 being legal fees.
The pertinent
question in determining whether this relief can be granted is, whether the
claim for legal fees forms part of the Claimant’s cause of action? A relief
which a Claimant in action is entitled, if established by evidence, are those
reliefs which forms part of the Claimant’s cause of action. It was held in Guinness Nig. Plc Vs Nwoke [2001] 15
NWLR (Pt 658) 135, that a claim for solicitor’s fee is outlandish and
should not be allowed as it did not arise as a result of damage suffered in the
course of any transaction between parties. Similarly, in Nwanji Vs Coastal Services Ltd [2004] 36 WRN 1 at 14-15, it
was held that it was improper, unethical and an affront to public policy to
have a litigant pass the burden of costs of an action including his solicitor’s
fees to his opponent in the suit.
Therefore, I think
that on the current state of law, a claim for solicitor’s which does not form
part of the Claimant’s cause of action can be granted. In the instant case, the
claim for legal fees for representing the Claimant’s action and for defending
the Counter-Claim does not form part of the action that can be granted. And I
so hold.
The Claimant’s claim for N500,000.00
general damages for general inconvenience and untold hardship caused by the
Defendant on the Claimant equally fails, the Claimant having failed to
establish the claim of indebtedness by Defendant.
16. The result therefore is the
Claimant has thereby failedwoefully to prove the claims and
therefore not entitled to its claims. Issue (1) is
accordingly resolved against the Claimant. The judgment of the Court is that
the claims of the Claimant is lacking in merit and in substance. It shall be
and is hereby accordingly dismissed.
ISSUE TWO
17. I now proceed
to determine the second issue which deals as whether the
Defendant has established his Counter-Claim.
The Defendant’s claims from the Claimant the sum of N1,033,985.00 as terminal
benefits, an order compelling the Claimant to return the original of the his
credentials and for general damages.
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. 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.
To put it
differently, the same standard of proof required to prove the main claim is
also required to prove the counter-claim.
18. In proof of the
claims, the Defendant/Counter-Claimant testified himself as the sole witness. As I had
earlier noted there is no dispute between parties that the Claimant employed
the Defendant as its sales representative.
By my
understanding of the totality of the case of the Defendant/Counter-Claimant, it
seems to me that the basic, essential and relevant facts upon which he has
predicated his claim could be enumerated as follows:
a). That
he duly and regularly made returns and accounted for the products the Claimant sent to him.
b). That he did not receive the products valued
at N1,033,985.00 that was sent by the Claimant sometime in November 2014,
because the vehicle containing the product was involved in car accident.
c). That on 7th January, 2015, he
gave the Claimant one month’s notice of his resignation for the Claimant’s
refusal to pay his salaries and other commissions from November 2014 – February
2014.
d). That after he gave the notice of his
resignation, the Claimant called upon him for a reconciliation of account and
that on 14th January, 2015, the reconciliation of the account was
carried out with the Area Manager and the sales representative that took over
from him.
e). That in spite of his disengagement from the
services of the Claimant, the Claimant has refused to release the original of
his credentials.
f). That a letter of demand for his salaries,
other entitlements and original of his credentials was written by his
solicitors to the Claimant.
19. To further
support his case, the Defendant tendered in evidence, the following documents:
i.
E-mail
of 25/11/2014, titled ‘Damage Stock at Ikare’ – Exhibit D1.
ii.
Letter
of resignation dated 7th January, 2015 – Exhibit D2.
iii.
Copy
of handover note dated 14th January, 2015 – Exhibit D3.
iv.
E-mail
correspondences on account reconciliation dated 10/02/2016 and 16/02/2016 – Exhibits D4, D4A and D4B.
v.
Internal
Memo of the Claimant - Exhibit D5.
vi.
Letter
of Claimant of 10/04/2014 titled ‘Drug donation to your Hospital’ – Exhibit D6.
vii.
Letter
of Defendant’s solicitor dated 19/02/2016 – Exhibit D7
viii. List of unpaid expenses – Exhibit D8
20. In paragraphs 2, 4 and 6 of the Reply to the
Statement of Defence and Defence to Counter-Claim, the Claimant averred
that the Defendant had not been paid his salaries, commissions and bonuses
because of the poor performances. The Claimant further averred that the
Defendant failed to carry out his responsibilities to recover the debts from
customers before he tendered his resignation letter; that the debts recovered
by the Claimant and some of the drugs returned had been deducted from the
Defendant’s ledger account as contained in Exhibit C6 and that the Defendant
had been paid his salaries and bonuses and thereby maintained that the
Defendant is indebted to the Claimant.
The Claimant
admitted in paragraph 9 of its Reply
to Statement of Defence and Defence to Counter-Claim that the
Defendant’s certificates are still in its possession due to the debt being owed
by him and that it was the Claimant’s policy to return certificates of
employees upon successful disengagement of the employees upon payment of
outstanding debts
21. In paragraph 36 of the Statement of Defence
and Counter-Claim, is the breakdown of the sum of N1,033,985.00 which
is the total of the various sums being claimed by the Defendant which dates
back from April 2013 till 07/02/2014.
From the
testimony of the Defendant, it is apparent that his case is hinged on documentary
evidence, Exhibits D1 to D8. In particular reference is Exhibit D8, a set of documents
including letters, receipts and invoices as prove of the various sums being
claimed.
22. Furthermore,
the law is firmly settled that a party relying on documents in proof of his
case must in open Court specifically relate each of such documents to that part
of the case in respect of which the document is being tendered.
This was the
principle enunciated in the case of Awuse
Vs Odili [2015] 16 NWLR (Pt 952) 515 wherein the Court stated
that:-
“The correct view of the
law is 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 also Lumatron Nigeria Ltd & Anor Vs First
City Monument Bank Plc [2016]
LPELR - 41409 (CA)
The
Defendant in prove of his claim did not specifically relate each of the
receipts and form claims to that part of his case in respect of Exhibit D8.
Perhaps, if the documents had been related his case, it would have been
observed that some of the documents were unsigned. Having regard to the
fact that the Defendant merely dumped Exhibit D8, (containing the claims forms,
various receipts and statement of accounts of Claimant’s customers) on the
Court without relating them to their case or claim, the Defendant cannot be
said to have proved entitlement to the sum claimed as unpaid salaries, unpaid
expenses and unpaid earned commissions.
23. In addition,
the Defendant also failed to lead any evidence in support of his entitlement to
7.5% pension contribution by which he claimed the sum of N149,550.00.
I should reiterate
here that this Court has held in several decisions that a Claimant 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. A caution was issued by this Court 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.
The Defendant has not shown by
reference to any law or agreement that gives him this entitlement. Relief 1 of
the Defendant’s claim for the sum of N1,033,985.00 as total terminal benefits
due to him from the Claimant fails as same was not proved. I so hold.
24. The Defendant also prays for an
order compelling the Claimant to return the originals of his credentials.
The Claimant, in paragraph 9 of the Reply to the Statement of Defence and Defence to
Counter-Claim admitted that the Defendant’s credential is still in its
possession. Exhibit C4, an
undertaking made by parties for the release of the certificate was tendered in
evidence in support of this averment. It
is an elementary principle of our law which no longer requires citation of
authority that, in civil cases, what is admitted needs no further proof. See Section 123 of the Evidence Act (supra).
The reason offered by the Claimant for
retaining the original of the Defendant’s credentials is that the Claimant’s
policy requires the original of the credential for employment as sales
representatives; that same are returned on successful disengagement of such
employees and that the Defendant’s credentials are still retained because he is
still indebted and has not being successfully disengaged from the services of
the Claimant.
25. Now, on a careful perusal of Exhibits C3 and C4, the
Defendant’s letter of offer employment as a sales representative with the
Claimant and the undertaking for the release of the credential, it is revealed
that whilst Exhibit C3 was dated 10/04/2014, Exhibit C4 was dated 24/04/2014;
which presupposes that the undertaking was made after the offer was accepted.
In other words, the withholding of the credentials was not part of the initial
offer. One of the conditions of acceptance of the offer is the receipt of
satisfactory character reference from two (2) credible persons as stated in
paragraph 14 of Exhibit C3.
I am of the
view that having voluntarily exited the Company on 07/01/2015 over five (5)
years, the act of retaining the original credentials of the Defendant by the
Claimant is nothing more than modern day slavery. It is unfair labour practice,
which this Court now has jurisdiction under Section
254C (1) (f) of the 1999 Constitution. The Defendant’s action, in unduly retaining the
original credential of the Defendant is not only unlawful, but oppressive and
unconscionable. I so hold. This Court shall not allow the Claimant to continue
such oppressive action.
In the circumstance therefore, the
Court hereby grants relief (2) of the Defendant/Counter-Claimant and orders the
immediate release of his original credential of the Defendant unjustly retained
by the Claimant.
26. The Defendant is also claiming for
general damages for the hardship and suffering inflicted on him and his family
by reason of non-payment of his terminal benefits and withholding of his
credentials. General damages means such damages as law itself implies or
presumed to have accrued from the wrong complained of, for the reason that they
are its immediate, direct and proximate consequence or such as necessarily
result from the injury, or such as did in fact result from the wrong, directly
and proximately and without reference to the special character, condition or
circumstances of the Claimant.
In the instant case, the Defendant has
adduced evidence that he suffered untold hardship and suffering by the
deliberate refusal of the Claimant to release the original of his credential
withheld for over five (5) years after he had exited the services of the
Claimant.
The Defendant’s claim of general
damages hereby succeeds.
27. In the
final analysis, the Defendant’s Counter-Claim succeeds in part. For the avoidance
of doubt and abundance of clarity, judgment is hereby entered with respect to
the Counter Claim on the following terms:
1. The Claimant/Defendant to the Counter-Claim
shall forthwith release the original certificate of the
Defendant/Counter-Claimant in Biochemistry from Usman Dan Fodio University,
Sokoto State, Nigeria to the Counter-Claimant.
2. The sum of N250,000.00 being general
damages for the hardship and suffering inflicted for withholding the
Defendant’s original credential.
3.
Parties
shall bear their respective costs.
SINMISOLA O.
ADENIYI
(Hon. Judge)
01/12/2020
Legal
representation:
Paul Onoche Esq. for Claimant
S. I. Unoakhe Esq. for Defendant