IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 10^th MARCH, 2026                             Suit No: NICN/LA/676/2016

 

BETWEEN

 

MEYER PLC                                                CLAIMANT

 

AND

 

1. AYODEJI OGINNI                   1^st DEFENDANT
2. MORITO EMMANUEL           2^ND DEFENDANT 
3. IDOWU ONITOLO                   3^RD DEFENDANT         

 

REPRESENTATION:

Adetola Ogunlewe with Babajide Oyedele for the Claimant 

No legal representative for the 1^st Defendant

Akinlola Oyetakin for the 2^nd and 3^rd Defendants

 

JUDGMENT

 

By a general form of complaint filed by the claimant on the 3^rd November, 2016 but amended on 19^th March, 2021 against the 1^st-3^rd Defendants seeking the following reliefs:

 

As against the 1^st Defendant: 

 

a.         The sum of N15,112,142 (Fifteen Million, One Hundred and Twelve Thousand, One Hundred and Forty-Two Naira and Sixty-One Kobo) being the value of the Claimant's products converted by the 1^st Defendant. 

 

b.         Interest on the sum of N15,112,142 (Fifteen Million, One Hundred and Twelve Thousand, One Hundred and Forty-Two Naira and Sixty-One Kobo) at the rate of 21% per annum from 31^st December 2010 until judgment is given and at 10% per annum until final liquidation of the judgment sum. 

 

As against the 2^nd Defendant: 

 

c.         The sum of N3,914,669.00 (Three Million, Nine Hundred and Fourteen Thousand, Six Hundred and Sixty-Nine Naira) being the value of the Claimant's products converted by the 2^nd Defendant. 

 

d.        Interest on the said sum of N3,914,669.00 (Three Million, Nine Hundred and Fourteen Thousand, Six Hundred and Sixty-Nine Naira) at the rate of 21% per annum from 31^st December 2010 until judgment is given and at 10% per annum until final liquidation of the judgment sum. 

 

As against the 1^st - 3^rd Defendants: 

 

e.         The sum of N5,000,000.00 (Five Million Naira) as General Damages for conversion. 

 

Accompanying the complaint are amended statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated 15^th March, 2021 but filed 19^th March, 2021.

 

In reaction, the 1^st defendant did not file any court process nor was it legally represented in court, the 2^nd and 3^rd defendants jointly entered formal appearance and then filed a joint statement of defence, counter claim, witness written statement on oath and documents to be relied upon at trial dated and filed 22^nd January, 2018. The 2^nd and 3^rd defendants/counter claimants counterclaimed as follows:

 

 

 

 

 

The summary of facts pleaded by the claimant’s witness, Goke Itaniyi, the internal Auditor of the claimant is that the 1^st and 2^nd Defendants were employed by the Claimant as sales representatives and at all times material to this action, the 1^st and 2^nd Defendants were charged with the distribution of the Claimant's products within the Ibadan depot/region which covers Osun, Oshogbo, Ijebu, Ilorin and its environs; that the 3^rd Defendant was employed by the Claimant as a storekeeper and was responsible for loading products and capturing all transactions in the Claimant's computer system, for record purposes; that in the course of the 1^st and 2^nd Defendant's duties as sales representatives of the Claimant, the Claimant's products were handed over to the 1^st and 2^nd Defendants for the purpose of delivery and distribution in the Ibadan depot/region in the following respective description and value:

 

LOCATION & DATE OF RELEASE	RELEASED TO	STOCK TRANSFER NUMBER	DESCRIPTION OF PRODUCTS	P/SIZE	QUANTITY	PRICE PER UNIT	TOTAL AMOUNT
29th January, 2010	Ayodeji Oginni – 1st Defendant	STHO/01/063	Wall Stain Wall Stain Wall Stain Ultimate Emul White	20 4 20 20	1 1 2 1	16,192.00 3.238.40 16,192.00 11,174.63	62,989.03
15th February, 2010	Ayodeji Oginni – 1st Defendant	STHO/02/048	WALL STAIN MFIx Alkali Resist ULTIMATE EMULS 3035 C/E C/E	20 4 20 20 20	25 4 3 6 3	16,192.00 3,557.40 33,523.89 18,000.00 9,000.00	468,881.29
22nd February, 2010	Ayodeji Oginni – 1st Defendant	STHO/02/063	ULTIMATE  EMULS 3035 M/TEX C/MTEX MTEX IMPERIAL EMUL IMPERIAL EMUL	20 20 20 20 20	10 2 5 1 50 1	11,174.63 10,995.60 5,200.00 10,995.00 328,020.00 6,560.40	505,313.50
24th March, 2010	Ayodeji Oginni – 1st Defendant	STHO/033/077	IMPERIAL EMUL M/TEX I/G Mfix Alkali Resist M/TEX IMPERIAL EMUL	20 20 4 20 20 20	11 5 4 3 21 12	6,560.40 56,500.00 12789.00 2,668.05 234,667.23 78,724.80	457,513.48
11th May, 2010	Ayodeji Oginni – 1st Defendant	STHO/05/009	Acrylic Road Making W	4.00	150.00	7,392.00	1,108,800.00
19th July, 2010	Ayodeji Oginni – 1st Defendant	STHO/07/0038	M/Flex	1	1,000	999.10	999.100.00
17th May, 2010	Ayodeji Oginni – 1st Defendant	STHO/05/021	M/Flex	1	1,000	999.10	999.100.00
17th May, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/0017	Wall Stain I/Gloss M/Flex Vanish	4 4 1	2 25 300	3,272.50 3,197.25 763.68	315,580.25
17th May, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/025	Vinyl Tiles	3.72	184	1,142.85	210,284.40
11th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/0014	Alkyd Road MK Paint White IMPERIAL EMUL 3040 WALL STAIN 4046 WALL STAIN 3040 WALL STAIN 3041 ULTIMATE EMULS 3035	4 20 20 20 20	100 20 1 3 1 7	6,154.44 6,560.40 16,192.00 16,192.00 16,192.00 11,174.63	905,834.41
27th September, 2010	Ayodeji Oginni – 1st Defendant	STHO/09.042	M/Tex Cameo M/Tex Calabash WALL STAIN 4046 WALL STAIN 0044 I/G MD Brown M/Tex Bamboo Tiles Tiles	20 20 20 4 4 20 3.72 3.72	6 2 2 1 2 6 56 44	10,995.60 10,995.60 16,192.00 3,272,50 3,197.25 10,995.60 1,200.00 1,200.00	315,989.40
18th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/026	Imperial Gloss 9094 Ultimate Emul White Vinyl Tiles KD0709 Vinyl Tiles KD2017 Vinyl Tiles KD2014 Vinyl Tiles KD1809 Vinyl Tiles VT1267 Vinyl Tiles KD0601 Vinyl Tiles HM2101	4 20 3.72 3.72 3.72 3.72 3.72 3.72 3.72	5 13 40 40 40 28 17 40 33	3,197.25 11,174.63 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00	446,856.44
6th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/006	Tax Calabash Ultimate Emulsion 3043 Clorub Finish 7084	20   20	40   2 1	10,995.60   22,274.63 4,901.76	467,075.02
29th November, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/063	Wall Stain White Wall Stain 4046 Imperial Emulsion White	20 20   20	5 15   10	16,192.00 16,192.00   6,845.71	392,297.10
19th November, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/039	MeyerTex 3025 Wall Stain White Imperial Gloss Black Flex Metallic 1776 Imperial Emulsion White Flex Metallic Nis 9180 Flex Brilliant White Flex Taxi Yellow Promarine Epoxy Finish Grey Tex Alausa Belge	20 20   4 1   20 1 1 1   4 20	30 1   60 18   10 12 30 30   29 1	10,995.60 16,192.00   3,197.25 999.10   6,845.71 999.10 12,376.84 912.00   6,872.88 10,995.60	1,236,179.42
23rd November, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/0047	Wall Stain 3040 Wall Stain White Imperial E White Imperial Emulsion 3035 Wall Stain 3035 Benip Emulsion White  Flex Benson Hedges Pantone 466 Acrylic Road Marking Mushroom	20 20 20   20 20   20   1   4	10 2 14   2 6   20   30   4	16,192.00 16,192.00 6,845.71   16,192.00 16,192.00   3,000.00   912.00   9,392.00	544,607.94
2nd December, 2010	Ayodeji Oginni – 1st Defendant	STHO/12/001	Imperial Emulsion 9095 Imperial Emulsion 9097 Imperial Gloss MidBrown 3045 Imperial Gloss 3040 Imperial Emulsion White Imperial Emulsion 3040 Imperial Gloss 9097	20   20   4 4   20   20 4	14   2   60 60   3   4 1	6,560.40   6,560.40   3,197.25 3,197.25   6,846.71   6,560.40 3,197.25	538,612.38
26th July, 2010	Ayodeji Oginni – 1st Defendant	STHO/07/072	Imperial Gloss 0012 Imperial Gloss MidBrown 3045 Imperial Gloss  P.O. Red 0006 Undercoat White	4   4   4 4	12   15   1 10	3,197.25   3,197.25   3,197.25 2,530.00	114,623.00
27th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/052	I/Gloss Dove Grey 9095 Prom. Epoxy Fin. 9095 Wall Stain Eko Blue Wall Stain 1020 Wall Stain Fast Speed Purple	4   4 4 4   4	30   30 3 3   2	3,197.25   6,872.88 3,272.50 3,272.50   3,272.50	328,283.90
12th November, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/030	Acrylic Road White Thinner 0100 Imperial Gloss Black Imperial Gloss White	4 4   4   4	55 5   5   5	7,392.00 1,033.44   3,197.25   3,227.70	443,851.95
16th August, 2010	Ayodeji Oginni – 1st Defendant	STHO/08/0028	Ultimate Emul 3040 Meyer Flex Total Red Acrylic Road Making Yellow Ref.	20   20   4	15   2   15	11,174.63   18,240.00   7,392.00	314,979.45
20th September, 2010	Ayodeji Oginni – 1st Defendant	STHO/09/029	NC Thinner II Imperial Gloss Emerald Meyer Flex Evolution White	4   4   1	100   10   400	2,935.60   3,197.25   912.00	690,332.50
31st August, 2010	Ayodeji Oginni – 1st Defendant	STHO/08/0055	Undercoat White	4	50	2,530.00	126,500.00
4th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/002	Meyer Tex Lemon  Wall Stain Pale Pink 1015 Meyer Tex 3040 Wall Stain 3040 Wall Stain 4046 Imperial Gloss 3035 Imperial Gloss Emerald	20   20 20 20 20 4   4	1   1 3 10 15 10   10	10,995.60   16,192.00 10,995.60 16,192.00 16,192.00 3,197.25   3,197.25	528,919.40
13th September, 2010	Ayodeji Oginni – 1st Defendant	STHO/09/2017	VINYL Tiles KD 1809 VINYL Tiles KD 0601 VINYL Tiles KD 0616	3.72   3.72   3.72	50   50   50	1,200.00   1,200.00   1,200.00	180,000.00
2nd November, 2010	Ayodeji Oginni – 1st Defendant	STHO/11/004	Prom. Epoxy M/Tex	20 20	50 5	34,364.40 10,996.60	1,773,203.00
26th October, 2010	Ayodeji Oginni – 1st Defendant	STHO/10/047	M/Flexy Vanish  M/Tex IMPERIAL EMUL	1 20 20	200 5 5	763.68 12,376.84 6,500.50	247,122.20
3rd September, 2010	Morito Emmanuel – 2nd Defendant	STHO/09/009	M/Tex Vanish	1	1.200	763.68	916,416.00
23rd August, 2010	Morito Emmanuel – 2nd Defendant	STHO/08/0037	IMPERIAL EMUL IMPERIAL EMUL WALL STAIN	20 20 20	15 3 4	6,560.40 6,560.40 16,192.00	182,855.20
19th July, 2010	Morito Emmanuel – 2nd Defendant	STHO/07/0062	Prom. Chlorub Fin White Prom. Fin White	4 4	20 20	4,901.76 3,759.88	173,232.80
	Morito Emmanuel – 2nd Defendant	STHO/11/001	Wall Stain IMPERIAL EMUL	20.00 20.00	10 5	16,192.00 6,560.00	194,720.00
	Morito Emmanuel – 2nd Defendant	STHO/11/0018	M/Tex IMPERIAL EMUL	1 20	1000 12	763.68 6,560.00	842,400.00
2nd June, 2010	Morito Emmanuel – 2nd Defendant	STHO/05/038	IMPERIAL EMUL M/Tex	20 1	10 300	6,560.40 999.10	365,334.00
4th October, 2010	Morito Emmanuel – 2nd Defendant	STHO/10/001	C/Mtex Bone White I/Gloss 4046 I/Gloss 3040 WALL STAIN 4046 WALL STAIN White	20 20 20 20   20	10 10 10 5   3	5,200.00 3,197.25 3,197.25 16,192.00   16,192.00	245,481.00
3rd December, 2010	Morito Emmanuel – 2nd Defendant	STHO/12/004	Contract MT Bone White Contract MT Tile Red Flex Vanish	20   20 1	10   5 600	5,200   5,200 763.37	536,022.00
						TOTAL	19,026,811.61

 

That the above Stock Transfer Notes itemized in Paragraph 4 of this claim respectively represent Claimant's products which were delivered to the 1^st and 2^nd Defendants for the purpose of delivery and distribution of the products in the Ibadan depot/region and that the 3^rd Defendant was responsible for entering the aforesaid details of all the Claimant's products which were delivered to the 1^st and 2^nd Defendants for distribution in the Ibadan depot/region, into the Claimant's computer system, by their respective Stock Transfer Note Numbers as outlined above; that sometime in December 2010, while carrying out a routine internal audit of stock and products, the Claimant discovered that the copies of Stock Transfer Note Numbers (as outlined above) evidencing delivery of the Claimant's products from Lagos, to the 1^st and 2^nd Defendants in the Ibadan depot/region, were missing from the Claimant's computer system and that the Claimant also discovered that the Claimant's products, as represented by the above Stock Transfer Note Numbers were missing, as the products which were delivered to and received by the 1^st and 2^nd Defendant for delivery and distribution in the Ibadan depot/region, were not recorded to have been distributed nor was payment received for them; that the missing Stock Transfer Note Numbers included STH0/09/009, STH0/08/0037, STH0/07/0062, STH0/07/0038, STH0/05/021, STH0/05038, STH0/03/077, STH0/02/063,  STH0/02/048, STH0/01/063,   STH0/11/001,   STH0/05/009, STH0/11/0017, STH0/11/025, STH0/11/0018, STH0/11/008, STH0/10/0014, STH0109/042, STH0/10/026, STH0/101006, STHO/10/001, STH0/11/063, STH0/12/004, STH0/11/039, STH0/11/0047, STH0/12/0001, STH0/071072, STH0/10/052, STH0/11/030, STH0/08/0028, STH0/09/029, STH0/08/0055, STH0/10/002, STH0/10/0016, STH0/09/017, STH0/11/004, STH0/10/047. 

 

That consequent upon the internal audit carried out by the Claimant, the Claimant could only trace the transactions relating to the Claimant's products to the carrier's note and the worksheet of the audit personnel that worked at the loading bay on the particular dates referred to in the above itemized Stock Transfer Notes; that the claimant also discovered that the Claimant's products, represented by the above Stock Transfer Note Numbers, were missing as the products were never delivered for distribution at the Ibadan depot/region by the 1^st and 2^nd Defendant; that the outcome of the internal audit led to an internal investigation to enable the Claimant locate the missing products and that the internal audit carried out by the Claimant reported the total value of the goods/products which were handed over by the Claimant to the 1^st and 2^nd Defendants for onward delivery at the Ibadan depot/region as: 

 

1^st Defendant - Ayodeji Oginni                         N15,112,142.61 

 

2^nd Defendant - Morito Emmanuel N    3,914,669 

            Total value of Goods delivered to the 1^st and 

2^nd Defendants N19,026,811.61 

 

That upon discovery of the evident diversion of the goods as contained in the above itemized Stock Transfer Notes, the Claimant issued queries to employees who were involved by their position and designation, and who were answerable in respect of the goods missing; to explain the discrepancies in the missing products and that having failed to receive any reasonable response to the queries issued to the affected employees, the Claimant was constrained to report the matter relating to the missing products and deletion of the Stock Transfer Notes and diversion of the Claimant's products to the Nigerian Police Force at Alausa Ikeja Division, Lagos State; that upon the report of the Claimant aforesaid, the Nigerian Police invited the affected employees of the Claimant, including the 1^st - 3^rd Defendants, to the Police Station for questioning, the 3^rd Defendant under the questioning of the Police, confessed to having been approached by the 1^st and 2^nd Defendants to delete records of the goods and transactions covered by the above Stock Transfer Notes. 

 

That in addition, the 1^st and 2^nd Defendants also admitted in a deposition on oath in SUIT NO. ID/1075M/2010 before the Lagos State High Court that the Claimant's products which were received by the 1^st and 2^nd Defendants, were purportedly delivered, on credit, to a customer in Osogbo and that they also admitted to the receipt of the Claimant's products from the Claimant in a deposition on oath dated 29^th December 2010; that the claimant did not authorize the 1^st and 2^nd Defendants to deliver the Claimant's product covered by the above itemized Stock Transfer Notes, or any products whatsoever, to any person whose identity the Claimant is unable to establish. Thereafter, the Claimant has made several demands from the 1^st and 2^nd Defendant for the diverted products covered by the above Stock Transfer Notes which is valued at N19,026,811.61 (Nineteen Million, Twenty-Six Thousand, Eight Hundred and Eleven Naira, Sixty-One Kobo), but the 1^st and 2^nd Defendants have wholly failed and refused to deliver the diverted products to the Claimant nor pay the naira equivalent to the Claimant; that the acts and omissions of the 1^st - 3^rd Defendants led to the termination of their employment by the Claimant on 1^st February, 2011; that by delivering the Claimant's products, without authorization and failing to pay to the Claimant the value of the products, the 1^st to 3^rd Defendants have converted the Claimant's products and that by reason of the conversion of the Claimant products by the 1^st - 3^rd Defendants, the Claimant has been denied its proprietary right to the products converted, has suffered loss and damages to the tune of N19,026,811.61 (Nineteen Million, Twenty-Six Thousand, Eight Hundred and Eleven Naira, Sixty-One Kobo).

 

Under cross examination by the 2^nd and 3^rd defendants/counterclaimants’ counsel, CW stated that he is 41years of age and that he joined the defendant in 2018 as an internal auditor. On the procedure taken before any product can be taken out of the warehouse, CW stated that it depends on the type of customer, if it is a dealer, the salesmen will request same, when the invoice is presented, the goods will be shipped to by the sales person; that the 3^rd defendant is an accomplice; that Stock Transfer Note is a document for transfer from head office to the dealer which contains the list of products; that all items were valued in price as per the stock transfer notes; that there was no complain from Ibadan and Oshogbo  but each of the depot, they have accounting officer reporting that the goods that left Lagos were not delivered to the depot or to the dealers; that the requisitions forms are kept by the inventory accounts.

 

Under re-examination of CW by the claimant’s counsel; CW stated that the difference between transfer and requisition note, the requisition comes first.   The claimant thereafter closed its case.

 

The 2^nd and 3^rd defendants opened their defence by calling their sole witness, Morito Emmanuel, the 2^nd defendant in the instant suit wherein he adopted his witness statement on oath as evidence in this case. The 2^nd and defendants’ sole witness statement on oath is that he was employed by the claimant as a senior sales executive in the year 2008 and was attached as a sales representative to Vasseta Nigeria Limited, one of the major dealer/distributors to the claimant with its head office at Oshogbo since year 2010; that schedule of his duty as a sales representative was solely to represent Vasseta Nigeria Limited and redistribute the claimant's product already purchased by Vasseta Nigeria Limited who is a major dealer to the claimant. That sometimes in December 2010, he was invited for a meeting by the claimant and on getting to their office, all the documents in his possession were taken from him, his official car was seized, impounded and confiscated during and was immediately arrested by police officers from Alausa Police Station on the instruction of the Claimant and his official vehicle that was impounded by the officials of the Nigeria Police Force has not been returned to him till date; that he is  not aware of any deletion or alteration and or conversion/diversion of any goods or documents of the claimant as it is not his duty or responsibility to enter into the claimant's computer system any details relating to the claimant's goods or products delivered to any of its dealers or customers as no computer was attached to his office as a sales representative; that it is not possible for the claimant's goods to be diverted based on the facts that before any of the Claimant’s goods leaves the Depot, the following procedures are strictly followed:

 

a.         A dealer or accredited customer who already has an existing account with the claimant will originate his/her request for goods from the claimant through request form. 

 

b.         The accredited dealer's request form for goods or products will pass through the regional sales manager, sales operation manager, the sales chief accountant, the chief auditor, the store manager and the chief security officer who will then confirm the followings: 

 

i.          whether the dealer has enough money in his or her account with the claimant that can satisfy and offset the goods requested for. 

 

ii.         Whether the number of goods or products requested for by the dealer and the various specification of the good requested for are available at the store/warehouse. 

 

iii.       Whether the dealer has any outstanding indebtedness in his or her account with the claimant which is yet to be cleared. 

 

iv.       Whether the good/products requested for in the request form is the actual goods requested and whether the goods tally with the specification in the request form. 

 

c.         It was after all the above question raised have been determined to the satisfaction of the claimant that the dealer's request form will be approved by all the claimant's officers mentioned in paragraph B above one after the other without any exemption. 

 

d.        If the dealer/distributor did not have enough money in his account with the claimant to satisfy the goods requested and thus seek for credit facility, a stock transfer note will be raised by the claimant in favour of the dealer for the release of the goods in conformity with its specification. 

 

e.         The stock transfer notes raised by the claimant will also be signed and approved by the regional sales manager, state operation manager, the sales chief accountant, the chief auditor, the store manager and the chief security officer one after the other without any exemption before the goods will be allowed to leave the depot for onward supply or delivery to the dealer or the accredited distributor. 

 

f.          After the approval of customer/dealer's request form or Stock transfer note by the claimant's officers mentioned above, a carrier's note in form of a way bill which captured the customer's/dealer's request, the quantity of goods requested for, the specification and the numbers of goods requested by the dealer will also be raised by the claimant and the carrier's note shall be signed by the sales operation manager, the chief auditor, the Stock Keeper and the head of the Security Personnel on duty. 

 

g.         It was after all these officers of the claimant have signed and approved the carriers note that same will be sent to the store keeper on duty for crosschecking and for the onward delivery of the goods/products requested for by the dealer. The total numbers of goods released must be in conformity with the specification to the sales representative(s) attached to such dealer or distributor. 

 

h.        That upon the release of the goods requested for by the dealer to the sales representative attached to such dealer, a copy of the stock transfer note issued in respect of the specific goods to be delivered to the dealer is therefore sent by the claimant to the dealer, customer or distributor that requested for such goods via DHL/EMS or any of the preferred speed post services so that the dealer/distributor can confirm and verify the number of goods approved for delivery, the specification, the unit approved and the quantity of goods approved by the claimant before the goods arrival of the goods for delivery by the sales representatives. 

                               

That the stock request form, the stock transfer note and the carriers' note issued in respect of each transaction are always captured in four different copies and each copy are filed with the account department, audit department, store and security section except for the carrier's note which the fifth copy is sent by courier or speed post to the dealer/distributor; that before a sales representative is allowed to pass through the depot gate, the vehicle of the sales representatives will be checked, the quantity and numbers of the goods/products carried by the salesman win also be crosschecked with the records of that particular transaction with the security office, the sale representatives will be made to sign on the security log book with capture the date and time the vehicle is moving out of the depot and the exact number of goods being carried by the sales representatives. That all the goods and products carried from the claimant's depot were delivered to the dealer/major distributor accordingly as there is no single complaint of diversion or conversion from my dealer/distributor.  That all the goods carried from the claimant's depot were delivered accordingly and there were no time goods/products worth N3,914,669.00 was missing or diverted nor converted on his part; that the Query issued to him by the claimant was withdrawn and retrieved from him  by the claimant, his official vehicle which contained all the relevant documents that can be used to answer the said query was impounded and instead of allowing him to answer the said query, he was immediately arrested and taken to Alausa police station and from there, he was charged to Magistrate Court at Ikeja on the 10th day of January 2011 for offence bothering on stealing, forgery and fraud in Charge No. MIK/A/01/11. 

 

That the Query issued to him was also withdrawn and retrieved by the claimant from others like Debo Agboade, Awoyera Nicholas, Nike Adedapo and Nonye Onyeji; that after the claimant has retrieved the query from him, one Mr. Olanipekun who was the Business Risk Manager to the claimant informed the 3^rd defendant herein and one Nike Adedapo that they will act as witness to the claimant in Court; that the claimant made use of a centralized computing system for all its products and goods known as 'Peach Tree' which captured all the production and sales transactions in the claimant's head office and all their depots/warehouse; that the 'Peach Tree' accounting computing system is a centralized accounting system and it can be likened to the computerized accounting system being used in the banking sector which captures all the sales transaction in the claimant's head office, its various warehouses and all its depot, if there is any deletion, alteration,' erasure and/or addition to any sales of products or goods of the claimant in its head office, warehouse or any of its depot, such alteration and deletion will automatically reflect in the accounting system and all the officers of the claimant and the claimant will be notified immediately particularly the Managing Director and all the heads of sections/ departments of the claimant; that if at all any deletion, alteration, erasure and/or addition of any goods, products or documents of the claimant is possible, then based on the claimant’s computerized accounting system, it can only be possible from the Accounting, Engineering and Audit department. 

 

That he was not assigned to any of the department mentioned above and as such he does not have access to the claimant's computer system and/or its accounting system and that although credit facility was granted to customers, approval and consent for the said credit facility was sought, obtained and granted by the Regional Sales Manager, Sales Operation Manager, Sales Chief Accountant, Chief Auditor, Store Manager and the Chief Security Officer of the claimant before any products or goods can be released to any dealer or customer and this is done through Stock Transfer Note as stated in paragraphs (d) and (e) above; that  any goods obtained by any dealer, distributor or customer vide credit facility by way of Stock Transfer Note must have been authorized by the claimant and its representatives mentioned in paragraphs (b), (e) before such goods can be released either from the warehouse or its depot and the goods released must have been captured by the 'Peach Tree' computerized accounting system which immediately captured the goods and send the details of such goods to the claimant's warehouse and all its depot. That the claimant did not at any time demand for the sum of N19,026,811.61 or any other sum from him, rather, instead of allowing him to respond to the query issued, the query was retrieved from him and he was arrested by the police and subsequently charged to court for offence bothering on stealing, forgery and fraud in Charge No. MIK/A/01/11.

 

That he did not at any time convert the claimant's goods to his own and/or divert the claimant's goods to strangers as all the goods released to him by the claimant were documented in its customers’ request form, Stock Transfer Notes and Carrier's Note and that all the claimant's transactions are captured by the claimant's computerized accounting system known as 'Peach Tree' accounting system which captures all the products and goods supplied or released by the claimant to their dealers, distributors and customers. That the Claimant always carried out quarterly audit of all the goods in their various depots, warehouses and stores and there was no audit report that ever indicted him for conversion or diversion of goods either before or after the alleged conversion; that new management took over the control and administration of the Claimant’s business sometimes in April/May 2010 and external auditors were invited to conduct a comprehensive forensic audit of all the claimant's goods in the claimant's stores, warehouses and depots and the report of the forensic audit carried out did not at any time indict him for conversion or diversion of goods; that the 3^rd Defendant never confessed at any Police Station to have been approached by him to delete, alter or erase any records of transactions covered by the stock Transfer Notes of the Claimant's Company. 

 

That the computer system wherein the alleged deletion and/or alteration takes place was never presented to him nor was he confronted with any evidence of deletion/alteration by the claimant and the police; that the investigating  police officer at Alausa Police station never investigated any offence of alteration and deletion of documents and/or conversion/diversion of the claimant's good and stock transfer notes; that he was employed by the claimant on the 12^th August, 2008 as a Senior Sales Executive on annual salary of N644,397.00 per annum and that he is still in the employment of the claimant as his appointments has not been terminated or reviewed by the claimant; that the last salary he received from the claimant was in November 2010 before he was charged to court for the alleged offence of stealing and conspiracy; that the claimant has refused to pay his salary since December 2010 but instead arraigned him before a Lagos State Magistrate Court based on a fabricated and fictitious charge of stealing, forgery and fraud in Charge No. MIK/A/01/11; that the unpaid salary has now accumulated to the sum of N4,510,779.00 (Four Million, Five Hundred and Ten Thousand, Seven Hundred and Seventy Nine Naira) and that he has suffered several damages and loss due to the failure and refusal of the claimant to pay his salary since December 2010. 

 

That he never faced any disciplinary committee nor recommended  any disciplinary action nor found wanting of his duties at any period of time; that he is presently demoralized, disillusioned and depressed having diligently served the claimant with all his life, power and with everything within his capacity to uplift the performance and sales capacity of the claimant; that he has no other means of livelihood as he depended on his salary to manage and take care of his immediate and extended family who are presently been deprived of the basic needs of life as a result of act of the claimant who refused to pay his salary since December 2010. 

 

Under cross examination by the claimant’s counsel, DW stated that he is testifying for himself only; that wrongful termination is part of his counterclaim before the honourable court; DW confirmed that exhibit MP 11 dated 1^st February, 2011 acknowledged by him is the letter terminating his employment; that he has not worked nor done anything for the claimant since 1^st February, 2011; that he does not have his response to the query before the honourable court; that the enforcement of fundamental right suit he filed against the claimant has been struck out; that customers are sometimes given credit and they pay later.

 

There was no re-examination by the 2^nd and 3^rd defendant’s counsel. The defendant thereafter closed their case.

 

The parties were directed to file their final written addresses. The 2^nd and 3^rd defendants’ final written address is dated 20^th January, 2025 but filed 3^rd February, 2025; the 1^st defendant did not file his final written address as he was not present all-through the court proceedings nor legally represented by counsel while the claimant’s final written address is dated and filed 17^th April, 2025.  The 2^nd and defendants’ Reply on point of law is dated 12^th May, 2025 but filed 15^th May, 2025.  

 

Learned counsel on behalf of the 2^nd and 3^rd defendants formulated two (2) issues for the court’s determination viz:

 

 

 

It is the 2^nd and 3^rd defendants’ counsel submission on issue one (1) that it is settled that for the Claimant to succeed in its claim for conversion, it must establish that there was a willful and wrongful interference with the goods and such an act whether intended or not result in the loss of the goods; that the claimant did not in any way show or establish how the 2nd and 3^rd Defendants interfered with its goods or acts which deprived the Claimant from possession or use of the purported claim before this Honourable Court. That the claimant did not provide evidence nor establish that the 2^nd and 3rd Defendants converted its goods by altering its computer where the details and inventories of the goods are kept. He cited the case of Boniface Anyika & Company Lagos Nig. Ltd. V. Uzor (2006) LPELR - 790 (SC) pp. 23-24 paras. C and urged the honourable court to hold that the claimant has not been able to establish that the 2^nd and 3^rd Defendants converted its goods, thus dismissing the Claim of the Claimant as same is speculative, vexations, unjustifiable and gold digging.

 

On issue two (2); counsel submitted that Defendants/Counter - Claimants has established their case as the Claimant has admitted non-payment of salaries due to them. He cited the case of Jombo vs. Petroleum Equalization Fund (Management Board) (2005) 14 NWLR Part 954 page 443 at 467 para-A - B and urged the honourable court to so hold.

 

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

 

 

 

 

 

The claimant’s counsel jointly addressed issue one (1) and two (2) and contended that it is common ground, that the 1^st Defendant neither filed any process in response to the Statement of Claim nor participated in trial of this Suit notwithstanding the services of the Originating Processes and several hearing notices on him. By choice, the 1^st Defendant elected not to defend this Suit and the 3^rd defendant by the proceedings of 27^th November, 2024 wherein the 2^nd and 3^rd Defendant's Counsel informed the honourable court that the 3^rd Defendant would not testify/give evidence before the honourable court, the 3^rd Defendant thus rested his case on that of the Claimant. That it is settled law that the 3^rd Defendant's Witness Statement on Oath dated 22/01/2018 having not been adopted in evidence is deemed abandoned together with his Statement of Defence in response to the Claimant's pleadings. He cited the case of Agabi & Ors v. Fari & Anor (2024) LPELR-73339(CA).

 

Continuing, counsel submitted that the total value of the products as pleaded in the claimant’s amended statement of facts received and loaded by the 1^st Defendant with the aid of the 3^rd Defendant is in the sum of N15,112,142.61 and that in the light of the foregoing and non -defence of the instant suit by the 1^st and 3^rd Defendants, the honourable court is urged to enter Judgment against the 1^st and 3^rd Defendants in favour of the Claimant as claimed in the Amended Statement of Claim.

 

On issue three (3); counsel submitted that it is not in dispute that the Claimant owns the products subject matter of this Suit and the 2^nd Defendant in his Statement of Defence did not deny the Claimant's ownership of the products nor denied the total value of the products subject of this Suit in the sum of N19,026,811.61 (Nineteen million, Twenty Six Thousand, Eight Hundred and Eleven Naira, Sixty-One Kobo); that it is trite that facts not in dispute need no further proof. That it is the evidence of the claimant's witness that the missing products were released to the 1^st & 2^nd Defendants who were to deliver same to Claimant's customers within their region of coverage. However, as a result of Claimant's trust in them, they took advantage of the duty of care and trust placed on them and converted the said products and that in a bid to also perfect their conversion of the products, the input of the 3^rd Defendant was required, secured and utilized to ensure the Claimant discovers no traces of the missing Stock Transfer Notes in her inventory. That the claimant having discharged its burden of proof, the burden shifts to the Defendants (2^nd Defendant) to establish his defence before the honourable Court. He cited the case of Union Bank v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (pt. 1659) 203 and urged the hoourable court to resolve the issue in favour of the claimant.

 

On issue four (4); the claimant’s counsel submitted that the 2^nd defendant/counterclaimant having pleaded and claimed arrears of salary and salary till date, he is bound to prove entitlement to the reliefs claimed but has failed woefully to prove entitlement to salary arrears and salary till date and is therefore not entitled to compensation for damages suffered. He cited the case of United Cement Company of Nigeria Ltd & Ors v. Isidor & Ors (2016) LPELR-41148 (CA) and urged the honourable court to dismiss the 2^nd defendant’s counterclaim and enter judgment in favour of the claimant.

 

On Reply on point of law; the 2^nd and 3^rd defendant’s counsel submitted that that the Claimant cannot select the witness of the 2^nd and 3rd Defendants who filed a joint Statement of Defence as it is solely the prerogative of the 2^nd and 3^rd Defendants to give evidence as a party to the suit or choose one of them as a witness to give evidence in support of their case as the 2^nd and 3^rd Defendants are at liberty to call any witness of their choice to testify in support of their case; that while the Claimant has the burden of proving its case, the 2^nd and 3^rd Defendants are not obligated to prove their case in the same way. The 2^nd and 3^rd Defendant’s evidence was by the 2^nd Defendant which is adequate to support the 2^nd and 3^rd Defendants defence and counter - claim before the Honourable Court. He cited the case of Orugbo Vs. Una (2002) FWLR (Pt. 257) 1024 SC.

 

That the employment of the 2^nd and 3^rd Defendants were terminated and not dismissed which makes the 2^nd and 3^rd Defendants entitled to all benefits that accrued to them; that upon termination of employment, certain benefits may accrue to an employee such as gratuity; that the 2^nd and 3^rd Defendants/Counter - Claimants have established their case as the Claimant has admitted non-payment of salaries and benefits due to them. He cited the case of Union Bank of Nigeria Plc vs. Soares (2012) LPELR - 8018 (CA) and urged the honourable court to hold that the 2^nd and 3^rd Defendants/Counter - Claimants are entitled to their benefits accrue to them as per their counter-claim.

I have carefully considered the processes filed, the evidence led, written submissions and authorities cited.

 

In considering the main issue, I must point out as noted earlier in this judgement; the 1^st defendant did not defend this action notwithstanding hearing notices served on him.  To the claimant, the 1^st Defendant neither filed any process in response to the Statement of Claim nor participated in trial of this Suit notwithstanding the service of the Originating Processes and several hearing notices on him. By choice, the 1^st Defendant elected not to defend this suit.

 

The law is trite that in civil cases, the burden of proof lies on the claimant to prove his claim. It is also settled that where the claimant leads evidence in support of his claim but the defendant failed to lead evidence in rebuttal, the burden of proof on the claimant is discharged on minimal evidence. See Chami vs U.B.A plc (2010) 6 NWLR Pt. 1191 page 474 at 496 – 497 (H-A) where the Supreme Court stated the nature of the burden of proof on the claimant where the defendant offers no defence as follows:

 

It is settled law that where the party offers no evidence in defence of the case of the plaintiff, the burden placed on the plaintiff is minimal since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case – See Osun State Government v Dalami (Nig) Ltd (2003) 7 NWLR (Pt 818) 72 at 99. 

 

The claimant’s argument that the defendant did not call evidence and so his case must be deemed admitted cannot accordingly stand as such. Where evidence is unchallenged or not contradicted, the onus of proof is satisfied on minimal proof, since there is nothing on the other side of the scale. See Unity Bank Plc v Adamu & Ors (2013) LPELR -22047 (CA) on when the burden of proof on a plaintiff is discharged on a minimal proof, the Court of Appeal held

 

However, the law is also trite that where one side does not call evidence, the minimum or least evidence called by the other party satisfies the requirement of proof by it in civil cases. This is the minimum requirement of proof by it in civil case. this minimum evidence rule. see Adewuyi v Odukwe (2005) 7 SCNJ 227. In the instant case, as there was no evidence offered by the Appellant, the imaginary scale preponderated very heavily in favor of the Respondents. From the proceedings at the trial court in the printed record of appeal, there is nothing from the defence to place against the evidence of the Respondents / plaintiffs. See Sasan v HFP Engineering (Nig) ltd (2004)3 NWLR (pt 861) 546; Balogun v Labiran (1988) 3 NWLR (pt 80) 66; & Mogaji v Odofin (1978) 4 SC 91. As afore-stated it is settled that where there is no evidence to put on one side of the imaginary scale in a civil case, the minimum evidence on the other side satisfies the requirement of the rule. See also Buraimoh v Bamgbose (1989) 3 NWLR (pt. 109) 352; Nwabuoko v Ottih (1961) ALNLR 487.

 

The claimant will not be entitled to judgement because the 1^st defendant did not appear in court nor filed defense processes; the court would only be bound to accept unchallenged evidence, uncontroverted and unrebutted evidence of the claimant, if it were cogent and credible. The court would not accept a piece of evidence which is not material and no probative value merely because the only evidence before the court is that of the claimant. See Arewa textiles Plc v Finetex Ltd (2003) 7 NWLR (pt. 819) 322 at 341.  Ogunyade v Osunkeye (2007) 4 NWLR (pt 1057) 218 SC at 247. 

 

This position of the law does not take away the duty of the claimant to prove its case under the minimal evidence rule. A plaintiff cannot in a civil matter assume that he is entitled to automatic judgement just because the other party had not adduced evidence before the trial court. In Ogunade v Osunkeye (supra) the Supreme court per Mukhtar JSC held as follows:

 

Failure on the part of a defendant to give evidence does not automatically mean judgement must be given in favour of a plaintiff, who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out, notwithstanding the fact that the defendant did not give evidence '' Per AUGIE JCA (P25 paras A-F)

 

The claimant also raised preliminary objection that the 3rd defendant (Idowu Onitolo by the proceedings of 27^th November, 2024 wherein the 2^nd and 3^rd Defendant's Counsel informed the honourable court that the 3^rd Defendant would not testify/give evidence before the honourable court, the 3^rd Defendant thus rested his case on that of the Claimant. That it is settled law that the 3^rd Defendant's Witness Statement on Oath dated 22/01/2018 having not been adopted in evidence is deemed abandoned.  It is erroneous for the claimant to state that each party in this suit must adopt his written statement baring which it will be deemed abandoned. Even if the suit was brought in a representative capacity, it is not open to the claimant to raise the issue. it is the defendant that can raise that issue.  The court in Prince Usifor Enosegbe v Paul Enizode – Aiwize 7Ors (2021) LPELR – 54200 (CA) On whether it is compulsory for a party to testify on his behalf if he can otherwise prove his claim or defend the claim against him through other witness, the Court of Appeal held thus 

 

In law, neither a claimant nor a defendant, or any party for that matter, need to testify on his behalf if he can otherwise prove his claim or defend the claim against him through other witness. All that matters is that evidence of the quality and of probative value is led on his behalf and if it preponderates more than the evidence of the adverse party, he would come out successful notwithstanding that he did not personally testify on his own behalf. See Mrs. Funmilayo Opadola v Lasisi Akanmu & Ors (2014) LPELR – 22714 (CA). See also Ndukuba v Kolomo (2006) 4 NWLR (Pt 915), Mainagge v Gwamma (2004) 9 -12 SCM 129 @ P 130.

 

Now to the merit of the case, the issue for determination in this case are: 

 

 

 

The claimant as required by law has put in evidence certificate of incorporation (exhibit NP), Offer of employment of the defendants (exhibit NP 2- NP4), Pay slip of the defendants (exhibit NP5), Carrier Note -Invoice (exhibit NP6), Goods outward log, Memo on Ibadan fraud (exhibit NP7), Query on missing stock transfers (exhibit NP8 a-c) statement of the 3^rd defendant in the Police station (exhibit NP 9), The claimant also  tendered  Court process at the Lagos High court (exhibit NP10), Services no longer required (Exhibit  NP11 a-c). The 2nd and 3^rd defendants tendered charge sheet (exhibit MP12), Stock Requisition form (exhibit P13), Invoice (NP15), Stock transfer note (NP17). 

 

The case of the claimant is that the 1^st and 2 defendants were employed as sales representative for distribution of claimant’s products within Ibadan / region and same covers Osun, Oshogbo, Ijebu, Ilorin and its environs while the third defendant was employed as a storekeeper responsible for loading products and capturing all transactions in the claimant’s computer System. That the 1^st and 2^nd defendants received goods but diverted them with the assistance of the 3^rd defendant, who helped in deleting all the transactions and the claimant lost N19, 026, 811. 61. The law is settled that in civil cases, it is incumbent on a party who is claiming a relief against his opponent to prove what he asserts; for unless he provides good and credible evidence to discharge the burden of proof placed on him, the case is bound to fail. He who asserts must prove. Once the party asserts, he must prove the assertion. See Section 131 (1) of the evidence act. See also Elegushi v Oseni (2005) 14 NWLR (pt. 945) 348, Egharevba v Osagie (2009) LPELR -1044 (SC). The 1st defendant did not file court process neither did he present himself but the 2^nd and 3^rd defendants denied the fact that they caused loss of such amount as alleged by the claimant.  The issue the court must look into is whether the claimant has proved its case. To start with, the claimant averred in paragraph 3 of the amended statement of facts that as sales representatives the claimant handed over the products of the claimant to the 1^st and 2^nd defendants for delivery and distribution in Ibadan. After Audit report, goods worth over N19, 000, 000 was discovered to be missing. What the claimant initially reported in paragraph 6 of the statement of claim is that copies of stock transfer notes evidencing delivery of claimant’s products to the 1^st and 2^nd defendants from Lagos were missing on the claimant’s computers not the goods at this time, What is more that the claimant’s products vide the stock transfer note numbers were missing and that the 1st and 2^nd defendants having received the goods did not deliver same in the Ibadan region and no payment received. The dispute between the parties arose from the finding of an Audit report on missing goods. To start with, what was the 1^st, 2^nd and 3^rd defendants employed as. Exhibit NI2 is the employment letter of the 1^st defendant employed as sales executive, the 2^nd defendant as senior sales executive while the 3^rd defendant was employed as store clerk in the marketing division of finished goods store. The first question is how did the goods leave the Lagos depot of the claimant.  In a corporate organization like the claimant, the procedure for the goods to leave the claimant’s warehouse is imperative. The evidence of the claimant is that it could not recollect how it left the warehouse but that the goods were not delivered.  This is the response of the witness of the claimant under cross examination.  

 

Question: – Before any of your goods is taken out of the warehouse, what is the procedure to be followed and he responded that it depends on the type of customer, if it is a dealer, the sales man will request same. when the invoice is presented, the goods will be shipped to the sales representative.  

 

The claimant’s witness did not tell the court the role of the defendants in moving the goods out of the warehouse. If the audit report is exhibit NP7 and the reports states ‘’ in the course of the investigation, and having been verbally queried as to the whereabout of the missing documents, the culprits hurriedly sent the missing Stock Transfers to the depot officer Segun Adejuwo. We would however need to verify those claims with the customers and ascertain the debits into these customers’ accounts. The report said that the 3 defendants confessed to have withdrawn documents from the various departments at the Audit trial, the 1^st defendant confessed to have intentionally taken the goods from head office with intention to divert and same for the 2^nd defendant. What the claimant refers to as confessional statement, is in exhibit NP9. Is confessional statement evidence?   it is trite that once criminal allegations are made against a citizen, the police has a constitutional and statutory duty to investigate the allegations. The position of the law on confessional statement is it must be put to test under the six laid down criteria. There is nothing to show the court that beyond relying on the confessional statement the claimant went a step further. See Laola Guda v Inspector General of Police (2024) LPELR -630109 (CA). I find that the claimant did not place anything by way of evidence before the court to show that outside of the alleged confession that the 3^rd defendant committed the alleged crime of deleting the stock transfer from the computer. I therefore hold that as regards reliance on the confessional statement of the 3^rd defendant there is failure to test the truth of the statement in exhibit NP9 as required by the law as in law, a conviction based solely on such document is wrongful as it has not been shown that the statements were made voluntarily. evidence are the queries issued to the defendants in exhibit N8a-c, and the defendants received letters of termination on the 1^st of February 2011. The defendants have itemized the process of getting goods out of the claimant’s store or warehouse as shown in paragraph 11 of the 2^nd and 3^rd defendant’s statement of defence and counterclaim and states as follows:

 

The 2^nd defendant avers that the process of getting any goods out of the claimant's store or warehouse are as follows:

 

a.         A dealer or accredited customer who already has an existing account with the claimant will originate his/her request for good from the claimant vide a request form. 

 

 

 

 

iii.       Whether the dealer has any outstanding indebtedness in his or her account with the claimant which is yet to be cleared. 

 

 

 

 

 

 

 

 

Having outlined the process of getting out goods, what is the defence to this as the claimant did not file a reply to the statement of defence. The claimant did not debunk the fact that the goods have to go through this process before being transported. A close look at no f, g and h of the process enumerated by the defendants is that the goods to be delivered to the dealer is therefore sent by the claimant to the dealer, customer or distributor that requested for such goods via DHL/EMS or any of the preferred speed post services so that the dealer/distributor can confirm and verify the number of goods approved for delivery. Under cross examination CW to the question ‘’ was there a complaint from Ibadan and Oshogbo- on the issue of missing stocks carried out by the three defendants and he responded ‘’ There was no complaint but at the depot we have accounting officer, reported that the good that left Lagos were not delivered to the depot or to the dealers. There is equally no report from the accounting officer.  The only report before the court is exhibit NP7 which is from the compliance officer of the claimant. On the issue of reply to statement of defense raised earlier in the judgment, a reply to the statement of defence is not used to correct a previous pleading. A reply is the plaintiff’s answer or response to any issue raised by the defendant in his defence and which the plaintiff seeks to challenge, deny or admit or object to and it is not permissible in a reply to a defence ‘’ to raise a new ground of claim or contain any allegation. See Salisu Bada Irawo-Osan & Anor v Chief J Folarin. There is the burden of proof on a claimant. The claimant has in its pleadings alleged that the defendants admitted to supplying the goods to a customer, so it’s part of the diversion and that same is in line with the principle of ‘’facts admitted need no further proof’’ The claimants reliance on exhibit NP10 which is the affidavit in support of summons in the matter of fundamental human rights cannot be correct as the burden to establish claim in any case is on the claimant. He must establish his claim upon the strength of his case and not upon the weakness of the case of the defendants. The defendants’ defense on the allegation of diverting the goods is that since the 2^nd defendant was allowed to give credit facility to some customers as stated in paragraph 11 as the customer eventually paid the money. To me it has not been shown that the allegation is true and there is nothing for the court to rely on and grant the reliefs prayed for by the claimant.

 

I have taken a closer look at the claimant’s pleadings and the first relief is for the sum of N15, 112,142.61 (Fifteen Million, One Hundred and Twelve Thousand, One Hundred and Forty-Two Naira and Sixty-One Kobo) being the value of the Claimant's products converted by the 1^st Defendant. The claimant’s assertion is that the 1^st defendant is indebted to the claimant in the sum of N15, 112, 142 .61, the 2^nd defendant in the sum of N3, 914, 669 and N5, 000, 000 as damages. Can it be said at this stage that the claimant has proved its case against the 1^st defendant? there is no specific document to show the role played by the 1^st defendant in the loss of such amount? The learned counsel to the claimant submitted that the 1^st defendant did not call any witness and cannot deny owing the claimant the sums claimed in his reliefs. A claimant should prove his case through credible evidence and not rely on the weakness of the defendant’s case even where the defendant did not lead any evidence. A defendant is not duty bound to call evidence. It is a well-established principle of law that a plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case in establishing his assertions. See Anyaefulu & Ors v Meka & Ors (2014) LPELR- 22336 (CA).

 

On the claim against the 2^nd defendant, there is nothing before the court save for the affidavit in exhibit np10. What the claimant has done in the case is to dump documents on the court. The next issue to consider is the ascription of probative value to be given to the evidence of the witness in this case. The law is settled that where a mass of documents is tendered in evidence and not demonstrated as to the value by oral evidence, no duty is cast or placed on a court to give them any probative value. See Solomon & Ors v Monday & Ors (2014) LPELR -22811 (CA).  In this case the claimant’s witness tendered documents in evidence and is duty bound to tell the court which of the documents entitles the claimant to the sums claimed, I am unable to see how he tied the documentary exhibits to assist the claimant’s claims.  Under cross-examination to the question ‘’ was there a complaint from Oshogbo or Ibadan that the goods sent through their representative was not delivered and CW answered ‘’ There was no complaint but one of the depots we have accounting officer reported that the goods that left from Lagos were not delivered to the depot or to the dealers ‘’ 

 

This court cannot rely on CW’s testimony because from his response there is no name of the depot representative, the date it happened and the quantity of goods that were diverted, moreover there was no report of missing goods from the depot. I therefore hold that there is no sufficient evidence to prove that the claimant is entitled to the reliefs.  The claimant’s reliefs cannot be granted in the absence of credible and cogent hard evidence which ought to be proffered at the instance of the claimant, See Dumez Nig Ltd v Peter Nwokobia & Ors (2009) ALL FWLR (pt. 461) 842 at 850 (SC), Ejiogu v Irona (2008) ALL FWLR (pt. 422) 1066 at 1101. Therefore, in my considered opinion and based on the plethora of authorities on when not to accord probative value, this case falls under such. It is well settled law that where a plaintiff failed to prove his claim against the defendant, after trial on the merit the court is entitled to dismiss the action. See Odum v Chinwo (1978) 6-7 SC 25. 

 

The claimant case fails and is dismissed.

 

As for the counterclaim the, 2^nd and 3^rd defendant counterclaimed against the claimant 

 

 

 

 

 

It is settled law that a counter claim is a claim which must be proved to the satisfaction of the court as required by law, The onus of proof which lies on the plaintiff to prove his claim is also on the defendant to prove the averments in his counterclaim against the plaintiff on the balance of probabilities and to succeed on the strength of his case. On the 1^st counterclaim, there is nothing to show that the 2^nd and 3^rd counterclaimants have suffered any untold hardship. The relief fails and is dismissed.

 

The second relief is for payment of N4, 510, 779 and N1, 008,000.  The 2^nd and 3^rd defendants averred that they received their last salary in November 2010 and that the salary has accumulated to N4, 510, 779 and for the 3^rd defendant N1, 008,000 as salary.  Exhibit NP11 is a letter for services no longer required addressed to the 2nd defendant and is states:

 

We wish to convey to you that your services with the company are no longer required with effect from 1^st February 2011.

 

It was collected personally by the 2^nd defendant while the 3^rd defendant’s employment was equally terminated on the 1^st of February 2011. Under cross examination, the 2^nd defendant to the question ‘’ Between the 1^st February 2011 till date have you worked or done anything for the claimant and he responded ‘’ I have not’’ On whether an employee can claim salary / allowance for a period he did not work and the court of Appeal in Atulomah v Nigerian College of Aviation Tech (2015) LPELR -25733 (CA) held thus

 

He is however not entitled, I hold, to claim for salary and allowances until 2006, for an employee cannot claim for a period that he did not work.   See the case of Olatuboisun v Niser (1988) 1 NSCC Vol 19 part 1, page 1025 at 1047 line 25 per Oputa JSC. Spring Bank Plc v Babatunde (2012) 5 NWLR Part 1292 page 83 at 1010 para-C-D per Iyizoba JCA. 

 

I hold that the counterclaimants failed to prove their counterclaims. The claimant’s case accordingly fails and so is hereby dismissed. In like manner, the defendants’ counterclaims also fail and so is dismissed. 

 

Judgement is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE