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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE HASSAN MUHAMMED YAKUBU

 

DATE: 5TH JULY, 2024.                           SUIT NO. NICN/AB/04/2023

 

BETWEEN

HABIB MOMOH                            ---------------      CLAIMANTS    

AND

UNITED BANK FOR AFRICA   ----------------   DEFENDANT                                        

REPRESENTATION

Elvis Keshi for the Claimant

B.J Akinsete for the Defendant

 

 

JUDGMENT

INTRODUCTION

1. The Claimant commenced this action vide complaint and statement of facts together with frontloaded documents dated 22nd June, 2023 but filed on 23rd June, 2023 against the Defendant claiming the following reliefs:-

1. A declaration that the Claimant is entitled to the sum of N20,106,792.96 (Twenty Million One Hundred and Six Thousand Seven Hundred and Ninety two Naira Ninety Six Kobo) being salary arrears from March 2011 to 23rd March 2019 at a monthly salary of N209,445,76 (Two Hundred and Nine Thousand Four Hundred and forty Five Naira Seventy Six Kobo) being the period when the Claimant was placed on zero salary on recovery suspension to when he formerly resigned his employment with the Defendant in March 2019, after over seven years of criminal trial by the Economic and Financial Crimes Commission, at the instance of the Defendant, his discharge acquittal of all criminal charges by Delta State High Court, and the failure of the Defendant to recall him back to work.

2. A declaration that the Claimant is entitled to the sum of N41,908,333 (Forty One Million Nine Hundred and Eight Thousand Three Hundred and Thirty Three Naira) representing allowances payable by the Defendant to the Claimant from the months of March 2011 to March 2019 at an annual sum of N4,700,000.00 (Four Million Seven Hundred Thousand Naira).

3. A declaration that the Claimant is entitle to his full entitlement and full benefit from the Defendant from February 2002 when he joined the defunct Standard Trust Bank whose assets and liabilities were absorbed by the Defendant by virtue of the merger of 2005 to March, 2019 when he formerly resigned his employment from the services of the Defendant.

4. An Order of this Honourable Court directing the Defendant to pay the Claimant the sum of N314,168.64 representing salary differentials that was paid to him by the Defendant from December2010, January 2011 and February 2011.

5. An Order of this Honourable Court directing the Defendant to pay the Claimant the sum of N20,106,792.96 (Twenty Million One Hundred and Six Thousand Seven Hundred and Ninety two Naira Ninety Six Kobo) being salary arrears from March 2011 to 23rd March 2019 at a monthly salary of N209,445,76 (Two Hundred and Nine Thousand Four Hundred and forty Five Naira Seventy Six Kobo) being the period when the Claimant was placed on zero salary on recovery suspension to when he formerly resigned his employment with the Defendant in March 2019, after over seven years of criminal trial by the Economic and Financial Crimes Commission, at the instance of the Defendant, his discharge acquittal of all criminal charges by Delta State High Court, and the failure of the Defendant to recall him back to work.

6. An Order of this Honourable Court directing the Defendant to compute and pay the Claimant his full entitlement and full benefit from February 2002 when he joined the defunct Standard Trust Bank whose assets and liability were absorbed by the Defendant by virtue of the merger of 2005 to March 2019 when he formerly resigned his employment from the services of the Defendant, taking into cognizance his last official duty as a branch Manager of the Defendant.

7. An Order of this Honourable Court directing the Defendant to pay the Claimant the sum of N50,000,000.00 (Fifty Million Naira) for aggravated and exemplary damages, exposure to hostility which made the Claimant unemployable in the Banking Industry.

8. Interest of 21 percent per annum until judgment is delivered.

9. Post judgment interest of the Judgment sum at 21% per annum calculated from the date of judgment until the final liquidation.

10. The sum of N5,000,000.00 (Five Million Naira) as cost of this action.

And for such Orders or other Orders as this Honourable Court may deem fit to make in the circumstances.

2. Upon being served with the originating processes, the Defendant entered appearance in this suit by filing a memorandum of appearance, statement of defence together with its frontloaded documents dated 17th October, 2023 and filed same day.

The claimant also filed a reply to the Defendant’s statement of defence dated 7th day of November, 2023 and filed same day.

3. Upon the settlement of pleadings, trial commenced in this suit on 15th March, 2024 and was concluded on 22nd March, 2024. The Claimant called one witness and the Defendant equally called one witness.

CASE FOR THE CLAIMANT

4. On 15th March, 2024, the Claimant opened his case and testified as CW1. He adopted his statement on oath dated the 23rd day of June, 2023 as his evidence in chief and tendered three documents of which two were admitted in evidence and marked as Exhibit A and B respectively. One of the documents was objected to and the ruling is reserved to be given in the course of this judgment. He prayed the court to grant his prayers and do justice to him. The case of the Claimant as apparent from his pleadings is that he is an ex – staff of the Defendant from December 2002 to 23rd March 2019, when he resigned his appointment from the employment of the Defendant. That prior to his resignation in March, 2019 on the 8th of December, 2010 the Defendant placed him and four others on recovery suspension to recover the loan facility of N44,600,00.00 (Forty four Million Six Hundred Thousand Naira) granted to Ika North East Local Government Area of Delta State, which was not paid as at when due, as a result of the death of its Chairman, immediately after the loan was disbursed.

That as at 2011, the N44,600,00.00 (Forty-Four Million Six Hundred Thousand Naira) loan granted to Ika North East Local Government Area of Delta State was Fully Recovered by Claimant with the interest factor of N24,000,000.00 (Twenty Four Million Naira) fully paid too.

That in 2012, at the instance of the defendant, the Economic and Financial Crime Commission (EFCC) arrested him, detained him, arraigned him and four others at the Delta State High Court, Asaba on a trumped up charge of stealing, even after the loan had been fully recovered with interest factor of N24,000.000.00 (Twenty Four Million Naira). That the trial lasted for seven years. That on the 31st day of January, 2019, the Delta state High Court, sitting in Asaba, Discharged and acquitted him of all the charges leveled against him. That throughout his ordeal during the debt recovery suspension, arrest, arraignment and trial, the defendant did not terminate his employment. That after he had been discharged and acquitted of the criminal charges by the Delta State High Court, Asaba, he waited for close to 60 days, with the hope that the Defendant would recall him back from the debt recovery suspension slammed against him in December of 2010, the said debt having been fully recovered, and he having been discharged by a court of competent jurisdiction, he resigned from the employment of the Defendant.

That as at the time when Defendant placed him on recovery suspension in December 2010, the Defendant placed him on half salary of N104,722.88K for the months of December, 2010 January 2011 and February, 2011. That from March, 2011 till his resignation on the 23rd of March, 2019, the Defendant did not pay him any salary not minding the loan facility granted to Ika North East Local Government was fully recovered in 2011.

That as at the time the Defendant placed him on debt recovery suspension, he was Branch Manager of the Defendant at her Asaba business office in Delta State.

That not minding his letter of resignation, the return of his official identification card back to the Defendant and his demand from the Defendant to compute and pay him his dues and entitlement, the Defendant failed to respond to his letter and demand, not minding that he even furnished the Defendant his e-mail address in his letter of resignation.

That at the instance of the Defendant, in 2012, print and electronic media announced him to the world as a thief, a criminal who stole N44,600,000.00 (Forty Four Million Six Hundred Thousand Naira).That the totality of the action of the Defendant injured his reputation, exposed him to mental agony and adversely affected his chances of getting employed in financial institutions, which further made it difficult for him to provide for his family. That in line with the workers handbook which formed the basis of his contract with the Defendant, he explored resolution of his claims against the Defendant through the Ogun State Multi – door Court House, Abeokuta, but failed to reached any agreement with the Defendant.

5. Under cross examination of CW1, testified by the learned counsel to the Defendant, he stated among other things that he still maintained his deposition in paragraph 4 of his statement on oath. That he suggested that the loan should be approved for the Local Government because the account of Local Government will be taken from the branch and given to another new generation Bank that just came to that locality. That he used the depositors funds without approval of the Defendant to give Ika – North East Local Government loan as stated in his email of 8th December, b 2010. That the loan has two collaterals, the first is irrevocable domiciliation of their monthly allocation from the Federal Government to UBA Plc. Agbor branch and the second was a cheque of the same amount equally deposited with the branch. That he did not think whether those documents are before the court. That he maintained his deposition in his statement on oath at paragraphs 14 (e) and 25 and cannot say whether they are before the court. That he resigned in line with the Defendant’s handbook and did not under go any exist interview. That before Exhibit B, he made demand for payment of his entitlement to the Defendant as stated in his letter of registration. That there was allegation against him at the disciplinary committee of the Defendant but he can not remember the allegation. That he never receive any letter of dismissal. That there was request letter for the loan in the file at the branch but he did not think whether the request letter is before the court.

CASE FOR THE DEFENDANT

6. On the 22nd of March, 2024, the Defendant opened its defence and called one witness, by name Umar Ganiyu, an Area Assistance Manager who testified as Defendant Witness 1, adopted his statement on oath dated 17th October, 2023 as his evidence – in – chief. And I tendered in evidence 11 documents which were admitted and marked as Exhibit C to M respectively. He urged the court to dismiss the case of the claimant. The case of the Defendant in the statement of defence as well as DW1 is that:- The Claimant is an ex – staff of the Defendant who was placed on debt recovery suspension in respect of an unauthorized loan granted to one of the Defendant’s customers Ika North East Local Government Area of Delta State during which the Claimant played a pivotal role in the disbursement of the same by fraudulently liquidating fixed deposits of some of the Defendant’s customers unknowingly to them to pave way for the unauthorized facility granted to Ika North East Local Government Area of Delta State.

That claimant was investigated and found culpable of fraudulent booking of N15,7750,000 TOD, Conversion of N32,371,000 customer’s deposit and issuance of fake/forged fixed deposit certificates to customers which led to his recommendation for dismissal.

That based on Defendant’s investigation and the claimants admission of his unethical action, the Defendant summarily dismissed him from its employment vide letter of dismissal dated October 24, 2012.

7. Under cross examination by counsel for the Claimant, DW1 said among other things that he is a full time employee of the Defendant and that he stand by his depositions in paragraph 8 of his statement on oath. That the Defendant keep data of houses address and email of his staff. That the Claimant collected the dismiss letter and refused to return the acknowledged copy. That the Defendant have various medium of communication and used the most convenient to give the letter to the Claimant. That he cannot mention the name of the particular staff that handover the letter. That he is aware that the Bank conducted their investigation but do not know when the EFCC did theirs. It could be concurrent or later. That the outcome and recommendation of the disciplinary committee of the Bank is summary dismissal, after giving him fair hearing to defend himself for the allegation leveled against him of the forgery of fixed deposit certificate, liquidation of fixed deposit of customers and granting an unapproved temporary over-draft to Ika – North East Local Government of Delta State without an application letter or offer letter signed by the Local Government.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

8. At the close of trial, learned counsel on either side were directed to file their final written addresses in accordance with the Rule of Court. On the 3rd day of April, 2024, Learned counsel to the Defendant filed his final written address in which he distilled a lone issue for determination which is whether in the circumstances of this case, the claimant has sufficiently proved his case against the Defendant.

9. In arguing the lone issue, counsel stated that a perusal of the Claimant’s pleadings reveal that his case is premised on the purported ground that he resigned from the employment of the Defendant on an unascertained date and that he is entitled to some form of monies by way of purported outstanding salaries, allowance and benefits as well as damages as outlined in the reliefs sought.

10. Therefore, counsel submitted that it is trite law that whoever desire any court to give judgment as to any legal right or liability on the existence of facts which he assets must prove those facts exist. In this respect, counsel referred the court to section 131 (1) of Evidence Act 2011, and the cases of MAIMIM INS. CO. V. OWONIYI (1994) 3 NWLR (pt. 331) page 178 at 192, paragraph A – C; IKE V. UGBOAJA (1993) 6 NWLR (pt. 301) 539 at 545, paragraph B;s AONDOAKAA V. AJO (1999) 5 NWLR (pt. 602)p. 206 at 222, paragraph C – D.

11. In his further submission, counsel stated that in civil cases, the burden of proof lies on the Claimant and that in the instant case, the Claimant has failed to place before this Honourable court any evidence to prove that he resigned from the employment of the Defendant and such resignation was even accepted by the Defendant. That (assuming without conceding that he did resign), Counsel referred the court to paragraphs 15 and 16 of the Claimant’s statement on oath and stated that the Claimant failed, refused and neglected to state how or through which medium or mode he sent the purported resignation letter and failed to also place before court any proof of sending whether through courier or post, neither is any acknowledgment of the said letter is before this Honourable court to show what date same was sent by the Claimant or received by the Defendant and urged the court to so hold.

12. In another submission, counsel stated that assuming but not conceding that any such letter of resignation exists, the Claimant having failed, refused and neglected to place any credible evidence before the court to prove that he resigned from the employment of the Defendant, this Honourable court is therefore urged not to speculate on the existence of any letter of resignation emanating from the Claimant resigning from the employment of the Defendant since it is trite law that a court of law could not act on speculation but on reliable evidence before it. In this respect, counsel referred the court to the cases of A.B.C. Plc. V. N.T.C. (NIG) LTD (2007) 1 NWLR (pt. 1016) 596 at 626, paragraph F; OLUFEAGBA V. ABDUL-RAHEEM (2009) 18 NWLR (pt. 1173) 384 at 439 – 440, paragraph H – A.

13. Consequently, counsel urged the court to refuse all the Claimant’s reliefs as they are all hinged upon his purported resignation from the employment of the Defendant and urged the court to dismiss his case for having failed.

14. In arguing the issue further, it is submitted by the learned counsel to the Defendant that the Claimant’s witness statement on oath dated 23rd June, 2023 does not comply with the oath Act of the Federal Republic of Nigeria as same does not bear the requirement provided for in the first schedule to section 13 of the Oath Act as there is no paragraph or statement therein where HABIB MOMOH the Claimant and sole witness solemnly, contentiously states that he believes the content of his witness statement on oath to be true and correct and that same was signed before a commissioner for Oath. Therefore rendering the said witness statement on Oath as incompetent and inadmissible. Counsel referred to the section 13 of the Oath Act and the cases of CHIKWELU CHRIS OBUMMEKE &^ ANOR V. OKEKE SYLVESTER & ANOR (2010) FWLR  (pt. 605) paragraph 1945 at 1947; GTB PLC V. ABIODUN (2017) LPELR – 42551 – CA.

15. Consequently, counsel submitted that the Claimant’s statement of fact  dated 22nd June, 2013 is left without any evidence to prove same and the law is clear that pleadings in respect of which no evidence is adduced are deemed abandoned and urged the court to so hold.  In this regard, counsel relied on the cases of NIKA FISHING CO. LIMITED V. LAVINA CORPORATION (2008) 16 NWLR (pt. 1114) p. 509 at 536, paragraps B – F; DINGYADI V. WAMAKO (2008) 17 NWLR (pt. 1116) p. 395 at 422 -433; ABUBAKAR V. JOSEPH (2008) 13 NWLR (pt. 1104) p. 307 at 357 paragraphs D – F.

16. The learned counsel to the Defendant also submitted that the Claimant was unable to prove his case against the Defendant as he failed to adduced any evidence to contradict the Defendant’s case as the Claimant’s reply to the statement of defence is not accompanied with witness statement on oath to prove the content. That the content of the statement of defence of the Defendant stands unchallenged. To this extend, counsel referred the court to paragraphs 2, 4, 5, 6, 11 and 22 of the statement of defence and paragraphs 4,6,7,8,13 and 22 of the statement on oath of DW1 as well as Exhibits B,C,M,F,G,H,J and L and stated that based on the Claimant’s admissions and confessions, the Defendant issued and served on the Claimant a letter of dismissal dated October 24, 2011. In that respect, counsel submitted that the position of law is that facts admitted or deemed admitted need no further proof. In support of this, counsel referred the court to section 123 of the Evidence Act 2011 and the cases of ONONAKU V. AKUBUE (2009) 15 NWLR (pt. 1165) 53 at 551 paragraph E; IYERE V. BENDEL FEED AND FLOUR MILL LIMITED (2008)18 NWLR (pt. 1119) 300 at 325, paragraphs C –E.

17. To this end, counsel submitted that in as much as the authenticity and content of Exhibit F was not challenged by the Claimant and the applicability of Exhibit L to the instant case was not raised by the Claimant, the Defendant’s summary dismissal of the Claimant by virtue of Exhibit H was lawful and Legal in the circumstance and urged the court to so hold and refuse the Claimant’s reliefs and resolve issue one in the negative against the Claimant and in favour of the Defendant.   

18. In concluding his submission, Defendant’s counsel stated that, it is trite that the Claimant’s cause of action and the basis of his complaint against the Defendant is encapsulated in and regulated by his statement of facts dated 22nd June, 2023 and not by his Reply to Statement of Defence dated 7th November, 2013. On function of a reply to a statement of defence, counsel referred the court to the case of AZEEZ AKEREDOLU & OTHERS V. LASISI AKINREMI & OTHERS (1989) 2 NSCC 319.

19. Finally, counsel urged the court to dismiss this suit in its entirety in the interest of justice and grant substantial cost in favour of the Defendant.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

20. The final written address of the Claimant is dated 13th day of April, 2024 and filed on the 15th day of April, 2024. In the said written address, learned counsel to the Claimant distilled three issues for determination to wit:-

1. Whether the totality of the evidence of the Defendant amounts to HEARSAY EVIDENCE and an attempt to re-open a matter that had been duly concluded by a court of competent jurisdiction.

2. Whether the “disciplinary committee” that purportedly recommended the dismissal of the Claimant actually sat as alleged by the Defendant and if it did, whether it was well constituted to form a QUORUM in line with the Defendant’s Group HR Disciplinary Process & Sanctions Policy.

3. Whether the distortion of the true facts of this case, the mammoth contradictions in the evidence of the Defendant’s witness, the reliance on technicalities and the attempt of the Defendant to reopen a matter where judgment had already been entered by a court of competent jurisdiction amounts to wanting to subvert the justice of this case.

21. On issue one which is whether the totality of the evidence of the Defendant amount to hearsay evidence and an attempt to re – open a matter that had been duly concluded by a court of competent jurisdiction, counsel argued and stated that the totality of the evidence of the Defendant witness amounts to hearsay evidence and an attempt to re – open charge No. A/EFCC/4C/2012 which had been decided by the Delta State High Court. In this respect, counsel referred the court to the cases of AROGUNDARE V. STATE (2009) LPELR – 559 (SC); FRN V. USMAN & ANOR (2012) LPELR – 7818 (SC).

22. Counsel referred the court to the DW1 statement on oath and stated that for DW1 to claim to know events that transpire over ten years before he was employed by the Defendant and to positively assert to the truth makes all the assertions of the Defendant’s witness under oath and indeed evidence adduced in chief and under cross examination to fall into the web of hearsay evidence. In this regards, reliance was placed on section 37 of the Evidence Act 2011 and the case of OKONKWO V. VANGUARD MEDIA LTD (2022) LPELR – 57246 (CA).

Counsel referred the court to DW1 evidence under cross examination and stated that the evidence of Defendant’s witness was hinged and premised on hearsay of what he did not see, what he did not partake on nor can confidently assert the veracity of, yet he asserted and spoke positively, affirming the truth of what he knows nothing about and chose to concoct lies, fabricate documents as Exhibits. Consequently, counsel urged the court to discountenance the evidence of the Defendant’s witness and settled the first issue raised in favour of the Claimant.

23. On issue two which is whether the disciplinary committee that purportedly recommended the dismissal of the Claimant, actually sat as alleged by the Defendant and if it did, whether it was well constituted to form a Quorum in line with the Defendant’s Group HR Disciplinary process and sanctions policy, counsel contended that the disciplinary committee of the Defendant did not actually sit over and or investigated any allegation against the Claimant nor recommended his dismissal. On the particulars to know that the disciplinary committee of the Defendant did not sit, counsel referred the Court to Exhibits C, F, G and K and stated that the Defendant was able to recall these Exhibits but could not recall the minutes of the Disciplinary sitting, the audio and the visuals recordings of the disciplinary sitting not minding the fact that the Claimant in paragraph 1 (J) of the Claimant’s Reply to the Defendant’s statement of defence, did place the Defendant on notive to produce the minutes, Audio and visual recordings of the disciplinary committee’s sitting.

24. In addition, counsel referred the Court to Exhibits A, D, E and H as well as the testimony of DW1 under Cross-Examination and stated that the Defendant never led evidence to state that she had copies of the letter of dismissal.

25. In his further argument on issue two, counsel stated that without conceding that the Defendant’s disciplinary committee sat, tried and recommended the dismissal of the Claimant, if it actually sat, it was not properly constituted in line with section 19 of the Defendant’s Group HR disciplinary process and sanction policy. He referred the Court to Exhibit D and section 19 of Exhibit L. That without conceding that the Defendant served the Claimant any letter of dismissal, Exhibit H runs fowl of the minimal requirement of an employer when embarking on such a drastic course of dismissal of an employee. In this regard, reference was made to the cases of ABOMELI V. NRC (1995) 1 NWLR (pt.372) 451, SAVANNAH BANK OF NIGERIA PLC V. FAKORUN (2002) 1 NWLR (pt. 747) at 522.

26. Consequently, counsel stated that the Defendant failed to produce the purported minute of the secretary to the disciplinary committee that sat over the hearing of the Claimant, the video and audio recording of the sitting because in actual fact, no disciplinary committee sat and no recommendation for dismissal was made neither was there any letter of dismissal served on the Claimant and urged the Court to settle the second issue in favour of the Claimant.

27. On issue three, which is whether the distortion of the true facts of this case, the mammoth contradictions in the evidence of the Defendant’s witness, the reliance on technicalities and the attempt of the Defendant to reopen a matter where Judgment had already been entered by a Court of competent jurisdiction amount to wanting to subvert the justice of this case, Counsel stated that the case of the Defendant is replete with distortion of facts and contractions, all aimed at misleading this Honourable Court and subverting the course of justice. In this respect, counsel referred the Court to paragraph 5,7,8,9,11,13,15,21,23,24,25,29 and 30 of the Defendant’s witness statement on Oath and Exhibits A, D and E respectively.

28. In respond to the argument of the Defendant’s counsel in paragraph 4:1 and 4:2 of page 4 of the Defendant’s final written address that the Claimant’s written statement on Oath was incompetent based on section 13 of the Oath Act. Counsel referred the Court to the case of DEMROW INTERNATIONAL CO. LTD V. G.T.B PLC (2019) LPELR – 48967 (CA) and Order 5 Rule 1 of the NICN Rules, 2017 where the Court is enjoined  to treat as mere irregularity any act of non-compliance with the Rules.

29. It is contented by the learned counsel to the Claimant that in the reaction of the Defendant to paragraph 7 of the statement of fact, where the Claimant stated that he served the Defendant with his letter of resignation, the Defendant in paragraph 14 of his statement of defence never derived being served the Claimant’s letter of resignation rather, the Defendant sought to invalidate the service of the letter of resignation on the ground of a purported dismissal.

30. In his final submission, counsel stated that the case of the Defendant is replete with inconsistence, persistent attempt to subvert the course of justice through reliance on technicalities aimed to defeat the justice of this suit. In this respect, counsel cited cases of IGBA & ORS V. ANGBANDE & ORS (2021) LPELR-53295(CA), MAKAAN V. HANGEM & ORS (2018) LPELR- 4401 (CA) AND ZAKIRAT V. MUHAMMAD (2017) LPELR – 42349 (SC) AT P 70-71.

31. On the whole, counsel urged the Court to enter Judgment for the Claimant per his claim.

THE DEFENDANT’S REPLY ON POINT OF LAW

32. On the other hand, Defendant’s counsel on 19th day of April, 2024 filed Defendant’s written address on points of law. In the said reply and in response to the Claimant’s issue one, I onset referred the Court to paragraph 3 of DW1 statement on Oath and the cases of KATE ENTERPRISE LIMITED V. DAEWOO (NIGERIA) LIMITED (1985) 2 NWLR and ISHOLA V. SOCIETE GENERALE BANK LIMITED (1997)2 SCNJ 1 and submitted that in as much as DW1 is an employee/agent/servant of the Defendant, he is competent to give evidence of the facts that led to the end of the Claimant’s contract of employment by way of a letter of dismissal and urged the Court to discountenance the Claimant’s counsel argument that DW1evedence as hearsay evidence as well as resolve the Claimant’s issue one in the negative against the Claimant.

33. In response to Claimant’s issue two, counsel submitted that the Claimant did not plead any facts about whether the Defendant’s disciplinary committee convened or otherwise or whether if formed a quorum in his statement of facts dated 22nd, June, 2023. That the Claimant only for the first time pleaded facts about whether the Defendant’s disciplinary committee convened or not and whether a quorum was found in his Reply to statement of Defence dated 7th November 2023, however that the Claimant failed, refused, and neglected to file any additional witness statement on Oath as evidence to prove whatever facts were pleaded therein. In this respect, counsel referred the Court to the cases of ENEMCHUKWU V. OKOYE (2017)6 NWLR (pt. 1560) 37 at 61, paragraph C-D, OLADIPO V. MOBA L.G.A (2010) 5 NWLR (pt.1186) p. 117 at 162- paragraphs F-A AND PUNCHS NIGERIA LIMITED V. EYITENE (2001) 17 NWLR (pt.741)p. 228 at 255, paragraphs A-C. Therefore, counsel urged the Court to discountenance the Claimant’s argument in this respect and resolve issue two in the affirmative in favour of the Defendant.

34. Responding to Claimant’s issue three, counsel submitted inter alia that the Claimant’s counsel has resorted to adducing evidence on behalf of the Claimant without being called as a witness and that it is trite law that no matter how brilliant the address of counsel can be, it cannot take the place of evidence. Reference was made to the case of ALIUCHA & ANOR V. ELECHI & ORS (2012) LPELR- 7823(SC).

35. Finally, counsel urged the Court to discontinuance the Claimant’s submission in its entirety and dismiss this instant case with substantial costs against the Claimant in favour of the Defendants.

COURT DECISION

36. I have carefully and painstakingly perused the processes filled by learned counsel on either side including their final written addresses and the reply on point of law filed by the Defendant. I listened attentively to the testimonies of witnesses called at trial and watched closely their demeanor. In addition, I evaluate the entire evidence adduced both oral and documentary by parties in this case. Having done all these, it is my humble view that the issue for determination can be narrowed to whether the Claimant has proved his case as required by law to be entitled to the reliefs sought. Before delving into the issue for determination, let me first and foremost clear some preliminary issues.

37. It is on record that when the Claimant’s witness was testifying-in –chief, three documents were sought to be tendered and the Defendant’s counsel objected to one of them which is letter of resignation. He argued his objection and the Claimant’s counsel responded accordingly and the Court reserved the ruling to be delivered in the course of writing judgment in order not to slow the trial. However and surprisingly, the learned counsel to the Defendant re-argued his objection in the Defendant’s final written address and the Claimant’s counsel equally responded. I will not consider the re-argument or submission of counsel on this because I do not see the need for that. I will therefore focus on the earlier argument of counsel during the trial.

38. ?The learned counsel to the Defendant objected to the admissibility of copy of letter of resignation on two grounds. Firstly that the copy sought to be tendered is an electronically generated copy and there is no certificate in compliance with section 84(4) of Evidence Act 2011. Secondly, that the document is not original and no foundation was laid before the secondary evidence of it was sought to be tendered. Also, that no notice to produce in line with section 89(a) (ii) of the Evidence Act. Consequently, counsel argued the Court to mark the document rejected.

39. ?in his response, counsel to the Claimant stated that they filed certificate of authentification in line with the Evidence Act and that the letter of resignation dated 23rd March, 2019 was referred to as having been printed from electronic system of their office and duly certified by himself that the system was operating perfectly. On the issue of notice to produce counsel stated that they did in their reply to statement of defence. Finally, counsel submitted that this is a Court of justice and era of relying on technicality has gone and urged the Court to discountenance the objection and admit the letter of resignation as Exhibit in this suit.

40. Replying on point of law, counsel to the Defendant said the issue of admissibility of a document is an issue of law and not issue of technicality. That the certificate is incompetent on the ground that the learned counsel cannot certified the document of the claimant which he is representing. He relied on the case of KALEJAYE V. LPDC (No citation) counsel promised to furnish the Court with citation which he never did. To this end, counsel urged the Court to mark the document rejected.

41. ?I have considered the grounds of objection of the Defendant’s counsel to the admissibility of the letter of resignation and the reply submission to the Claimant’s submission. I have also considered the response or arguments of the learned counsel for the Claimant. I have examined the said letter of resignation and the pleadings of the parties. Without any doubt, the said letter of resignation was pleaded and relevant to the proper determination of this case. In my opinion, to do justice in this case, the letter of resignation should be considered and admitted.

In this respect, I refer to section 12(2)(b) of NIC Act, 2006 which provides thus:-

“12(2). Subject to this Act and Rules made thereunder, the Court

(b) shall be bound by the Evidence Act but may depart from it in the interest of justice.”

In the circumstances and without much ado, I overrule the objection of the Defendant’s counsel to the admissibility of the said letter of resignation and admit it in evidence and marked as Exhibit N accordingly in the interest of justice.

42. It is also the submission of the learned counsel to the Defendant as contained in the Defendant’s final written address at paragraph 5.2 that the Claimant’s witness statement on Oath dated 23rd June, 2023 does not comply with the Oaths Act Federal Republic of Nigeria as there is no paragraph or statement therein where HABIB MOMOH the Claimant and sole witness solemnly, Contentiously states that he believes the content of his witness statement on Oath to be true and correct therefore rendering the said witness Statement on Oath as incompetent and inadmissible. Also that the said witness statement on Oath was not signed before a commissioner for Oath.  He relied on section 13 of the Oath’s Act. The learned counsel to the Claimant’s reply to this submission is contained in the Claimant’s final written address at paragraph 7:1.

43. Before I comment on this, let me fortify myself with the decision in  the case of AL-USABS VENTURES LTD & ANOR V. GTBANK & ANOR (2021) LPELR-55789 where Court of Appeal per HABEE ADEWALE OLUMUYIWA ABIRU, JCA held at pages 41-42, paragraph B-D thus:-

“The records show that the Respondents did not take objection to the format of the Oath on the statements on Oath at the time they were adopted by the two plaintiffs witnesses as their evidence in Court and that the issue of their non-compliance was raised in final written addresses of their counsel after the close of trial. The law is that a witness statement on oath upon adoption becomes the evidence in chief of the witness, thus if there is any objection or concern with the witness statement such objection should be raised at the time the witness seeks to adopt it. Once it is adopted without objection it is no longer open to a party to challenge the competence of the witness evidence in chief on the ground of non-compliance with the form of Oath in the first schedule to the Oaths Act. The implication of adopting such an irregular witness statement on Oath is that such adopted makes the deposition admissible…. Thus, whichever way it is looked at, the lower Court was in complete error when it countenanced the objection of the counsel to the respondents to the written deposition on Oath of the two plaintiff witnesses and when it pronounced the written statements as incompetent for failure to strictly comply, word to word with the form of Oath in the first schedule to the Oaths Act.”

Similarly, it was held in the case of AKEREDOLU V. REGISTERED TRUSTEES OF THE GOFAMINT & ORS (2022) LPELR-57840 where Court of Appeal again per YARGATA BYENCHIT NIMPAR, JCA, at pages 40-41 paragraphs F-A thus:-

“It is trite that a witness Statement on Oath that is defective could still be used when it is adopted, the subsequent adoption of the statement in open Court cures whatever defect”.

See also the cases of UDEAGHA V. OMEGARA (2010) 11 NWLR (pt. 1204) 16 ETENE V. NYONG (2012) LPELR-8031 (CA) AND MAJEKODUNMI V. OGUNSEYE (2017) LPELR-42547 (CA).

43. In the light of the decisions in the cases cited above, a careful perusal of the said Claimant’s written statement on oath dated the 23rd June, 2023 will show that there is no substantial compliance with the Oath Act of the Federal Republic of Nigeria as provided for in first schedule to section 13 of the Oath Act.           However, having been adopted by the witness in open court on 15th March, 2024 without any objection on the part of the Defendant, the witness statement on Oath of the Claimant’s witness is admissible. I so hold.

44. Furthermore, that takes me to the submission of the Defendant’s counsel in the Defendant’s final written address at paragraphs 5.3 & 5.8 inter alia that the Claimant did not file any additional witness statement on oath in support of his reply to statement of defence in order to prove the content of same. That it is trite law that where a party fails to lead evidence in support of his pleadings, he is deemed to have abandoned such pleadings.

45. I must say that I have gone through the Claimant’s final written address over and over again but could not see where the learned counsel to the Claimant responded to this arguments. Nevertheless, I perused the case file and found out that it is on record that the Claimant filed a reply to the statement of defence on 7th November, 2024 and same is not accompany with any witness or additional witness statement on oath. At this juncture, it must be reinstated that the law is settled that pleadings however strong and convincing the averment may be, without evidence in proof thereof whether oral or documentary goes to no issue. This position was re-echoed by court of Appeal in the case of GIDADO V, PETER & ORS (2021) LPELR – 56518 per BITRUS GYARAZAMA SANGA, JCA, at pages 22 -22, paragraphs A – F that:-

“It is trite law that facts pleaded but not supported by evidence goes to no issue and would be deemed as abandoned… Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleadings are true. Consequently, pleadings without evidence to support it are worthless…”      

See also the cases of AKILA JATAU & ANOR V. ZABADI SANTIVI (2020)LPELR – 49603 (CA); CAMEROON AIRLINES V. MR MIKE E. OTUTUIZU (2011) LPELR – 827 (SC) CHARLES OWOLOGBO UGBOTOR V. FLORENCE MAMUROMU UGBOTOR (2006) LPELR – 7612 (CA).  

46. In the light of the foregoing, it is my considered opinion that the Reply to the Defendant’s statement of defence dated and filed on 7th November, 2024 having not accompanied same with witness or additional witness statement on oath to prove the facts pleaded therein is deemed abandoned. Therefore, the implication is that there is no reply to the Defendant’s statement of defence. I so hold.

47. I will now turn to consider the issue for determination having cleared the preliminary issues. The issue for determination which is whether the Claimant has proved his case as required by law to be entitled to the reliefs sought.

48. As stated earlier, the case of the Claimant is principally premised on the fact that he resigned his appointment from the employment of the Defendant via letter of resignation dated the 23rd March, 2019. That is Exhibit N. In other words, the reliefs which the Claimant is seeking before this Hon. Court is as a result of his resignation from the employment of the Defendant.     

49. It is germane to state at the on set that, the law is trite that he who assets must prove with credible and admissible evidence. This position of law was encapsulated in section 131 (1) of Evidence Act, 2011. Which provides thus:-

“whoever desires any court to give judgment as to  any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

Similarly, the supreme court held in the case of SOKINO V. KPONGBO (2008) 7NWLR (pt. 1086) 342 at 362 paragraphs C – E that:-

“It behoves the appellant to give testimony in support of the pleadings if he wanted to succeed in his case. A cardinal principles of law is a plaintiff who asserts must prove his case with credible and unchallenged evidence. In civil cases a party who wishes to succeed in obtaining judgment in his favour must adduce such credible evidence, for such cases are decided on preponderance of evidence and balance of probability”.

See also the case of INIAMA V. AKPABIO (2008) 17 NWLR (pt. 1116) 225.

50. At the trial and in proving his case, the Claimant testified as CW1, adopted his statement on oath and tendered three documents in evidence which were admitted and marked as Exhibits A, B, and N respectively. The Claimant in his testimony under oath as contained in his statement on oath particularly at paragraphs 15, 16, 17, 18, 19, 20 and 21 which I will reproduce hereunder for ease of reference.

 Paragraphs 15 read thus:-

 “That after waiting for close to sixty days from January 31st 2019 when the Delta state High Court discharged and acquitted me, the Defendant having failed to recall me from the recovery suspension placed on me, I sent in my letter of resignation from the employment of the Defendant. The said letter of resignation dated the 23rd March, 2019 is herein pleaded and shall be founded on and relied upon at trial.”

 

Paragraphs 16 read thus:-

“That attached to my letter of resignation, was my official United Bank of Africa Identification card, which I returned to the Defendant.”

Paragraphs 17 read thus:-

“That in my letter of resignation, I intimated the Defendant as follows.”

“This resignation is considered after being placed on recovery suspension of loan granted, and recovered which eventually led to litigation. I hereby resign my appointment after being discharged and acquitted by court of law”

“I hope with this, all my dues and entitlement would be giving due attention….”

“Please, find enclosed my UBA official ID Card”

Paragraphs 18 read thus:-

“That not minding my letter of resignation, the return of my official Identification card back to the Defendant and my demand from the Defendant to compute and pay me all my dues and entitlement, the Defendant failed to respond to my letter and demand.”

Paragraphs 19 read thus:-

“That as at the time when Defendant placed me on recovery suspension in December, 2010 the Defendant placed me half salary of N104,722.88k for the months of December, 2020 January 2011 and February, 2011.”

Paragraphs 20 read thus:-

 “That from March, 2011 till my resignation on the 23rd March, 2019 the Defendant did not pay me any salary, not minding the loan facility granted to the Ika North East local Government was fully recovered in 2011.

Paragraphs 21 read thus:-

“That pursuant to the full recovery of the debt/loan advanced to Ika North East Local Government area of Delta State, my discharge and acquittal of all criminal charges by the Delta State High Court and my resignation from the employment of the Defendant, I am entitled to be paid the following sums of money:-

a). The sum of N314,168.64 (Three Hundred and Fourteen Thousand One Hundred and Sixty Eight Naira Sixty Four Kobo) representing salary differentials that was paid to me by the Defendant for December 2010, January 2011 and February 2011.

b). The sum of N20,106,792.96 (Twenty Million One Hundred and Six Thousand Seven Hundred and Ninety Two Naira Ninety Six Kobo) being Salary Arrears from March 2010 to 23rd March 2019 at a  monthly salary of N209,445,76 (Two Hundred and Nine Thousand Four Hundred  and Forty Five Naira Seventy Six Kobo) being a period when I was placed on zero salary on recovery suspension to when he formerly resigned his employment with the Defendant on the 23rd March 2019.  

c). the sum of N41,908,333 (Forty One Million Nine Hundred and Eight Thousand Three Hundred and Thirty Three Naira) representing allowance payable by the Defendant to me from the months of March 2011 to the 23rd March 2019 at an annual sum of N4,700,000.00 (Four Million Seven Hundred Thousand Naira).”

51. On the other hand, the Defendant averred in paragraph 15 of the statement of defence as well as paragraph 16 of DW1 statement on oath inter alia that the Claimant was aware that he was no longer in the employment of the Defendant having been dismissed on October 24, 2011 being the reason he sent a hand written letter dated 26th November, 2015 to the Defendant’s Benin city branch requesting for copies of his pay ships and letter of non – indebtedness long before his purported letter of resignation of 23rd March, 2019 which I shall at the trial contend is invalid and of no effect.

52. From the entire averments in the statement of defence and deposition in DW1 statement on oath, there is no where the defendant denied categorically accepting or being served with Exhibit N. In other words, service of Exhibit N on the defendant was never made an issue by the Defendant in its pleading. Therefore, the submission of the Defendant’s counsel in his written address to the effect that the Claimant has failed to state the mode or through which medium he sent Exhibit N to the Defendant is to say the lest, leading evidence. In this respect, it is settled law that address of counsel cannot take the place of evidence.

This position of Law was re – echoed by the supreme court in the case of NWAANYAJIKE & ANOR V. INEC & ANOR (2023) LPELR – 60317 per KUDIRAT MOTONMORI OLATOKUNBO KEKERE – EKUN, JSC, at pages 33 – 34, paragraphs F – B that:-

“It is settled position of law that address of counsel, no matter how brilliant, cannot take the place of oral evidence.”   

See also the case of UCHA & ANOR V. ELECHI & ORS (2012)LPELR – 7823 (SC) OLAGUNJU V. ADESOYE & ANOR (2009) LPELR – 2555 (SC).

53. However, what appears in my opinion to be the challenge of Exhibit N by the Defendant as can be deduced from the paragraphs of statement of defence and DW1 statement on oath is that Exhibit N is invalid and of no moment. This points to a conclusion that the Defendant though were served with Exhibit N but they are challenging it on the ground that it is invalid.

54. Furthermore, CW1 while testifying under Cross Examination, he was asked by learned counsel to the Defendant among other questions that:-

“Q – You have alleged that you resigned from the Defendant employment in line with the Defendant’s Handbook, did you undergo any exist interview in line with the said handbook.

“A – I did not.”

55. I have taken a close examination of the said Defendant’s Handbook which is Exhibit J, which the Claimant also stated that it formed the basis of his contract with the Defendant. Clause 9.2.1 of Exhibit J provides thus:-

“Exist interviews shall be conducted for all resigning employees and exist certificate issued to cleared employee.”

Also, clause 9. 2. 33 of Exhibit J provides thus:-

“The staff should log on to the exist portal to initiate an exist interview and clearance.”   

56. From the wordings of clause 9 of Exhibit J quoted above, it is clear that the exist interview is mandatory and it is the duty of a resigning staff to initiate same. To this end, the law is settled that parties are bound by the terms of their contract. In this respect, I refer to the case of A. G. FERRERO & CO. LTD V.HENKEL CHEMICALS (NIG) LTD (2011) LPELR – 12 where supreme court per WALTER SAMUEL NKANU ONNOGHEN (JSC) at page 20 – 20 , paragraphs B – C held thus:

“It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the said contract”.

57. Consequently, from the totality of the Claimant’s evidence before this Honourable court, that Claimant did not lead any evidence before this Hon. Court to proof that he resigned his appointment in the employment of the Defendant in line with Exhibit J. In other words, there is no evidence before this court to proof that exist interview was conducted for the Claimant nor that exist certificate was issued to him to clear him. Also, he did not lead evidence to proof that he initiate the exist interview by logging to the exist portal. That is, the burden of proof is still on the Claimant to proof that he has done his own part as stated or shown in Exhibit J before it will shift to the Defendant. In this respect, I refer to the case of S.P.D.C (NIG) LTD V. EMEHURU (2007) 5 NWLR (pt. 1027) 347 at 372 – 373, paragraph D – B where it was held thus:-

“It must be stressed here that in civil cases unlike in criminal matters, the burden of proof is not static. It does shift…”

58. In view of the foregoing, it is my considered opinion based on the evidence before the court that the burden of proof has not shifted is still on the Claimant to proof that he resigned his appointment in the employment of Defendant in accordance with Exhibit J. I so hold.

59. To this end, the evidence of DW1 as contained in his statements on oath particularly at paragraph 16 remained unchallenged and uncontroverted in view of the fact that the Claimant did not file additional and/or further statement on oath alongside the reply to the statement of defence which same is deemed abandoned as stated earlier.

60. At this juncture, it should be remembered that the Claimant is claiming before this Honourable court declaratory reliefs and the law is that a party seeking for a declaratory relief must succeed on the strength of its case, not on the weakness of defence. In this regard, I refer to the case of CHEVRON NIG LTD V. WARRI NORTH L.G.C. (2003) 5  NWLR (pt. 812) PER IBIYEYE J.C.A. at page 47 paragraphs F – G, where it was held thus:-

“A plaintiff must proof his claim by adducing evidence to be entitled to declaratory relief be it title to land or any other declaratory relief.”

See also the case of N.B.C. PLC V. EDWARD (2015) 2 NWLR (pt. 1443) 201.

61. In sum, I am of the firm view that the claimant has failed to adduce sufficient evidence to entitled him to the reliefs sought having failed to proof with credible evidence that he resigned his appointment in the employment of the Defendant in accordance with Exhibit J. In this regard, I refer to the case of AYENI V. ADESINA (2007) 7 NWLR (pt. 1033) 233 at 263 – 264, paragraphs H – A where it was held that:-

“It is settled law that plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case.”       

62. Before I conclude, let me say that I do not intend to be laboured myself in considering issue number one distilled by the learned counsel to the Claimant in his final written address rather, I will refer quickly to the decision of court of Appeal in the case of ENERGY COMMISSIONS OF NIG. V. PSC INDUSTRIES LTD & ORS (2022) LPELR 58893 per DANLAMI ZAMA SENCHI, JCA at pages 30 – 32,paragraphs C – B where it was held that:-

“…Thus the three witnesses of the 1st and 2nd Respondents from all intends and purposes are employees or agents of the 1st and 2nd Respondents and they are competent to give evidence of their roles in the course of their employment with the 1st and second respondents. The evidence of the three witnesses cannot therefore be regarded as hearsay evidence… A company being a legal person or a juristic person can only act through its agents or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence. In the instant case, where the trial court dismissed respondents claims on grounds that the evidence given on its behalf was given by an official who did not participate in the transaction, this Court rightly set same aside….. I entirely agree with the opinion of the Court below, that the mere fact that bank staffs was not around when a Customer’s bank account was opened was not enough to prevent the staff from testifying or giving evidence on customers account. Thus, the lower Court at pages 304-305 of the record of Appeal find that:-

“the three witnesses who are employees of the plaintiffs can as well be described as the agents of the plaintiffs to give evidence on behalf of the plaintiffs even though they did not take part in the transaction regarding the four contracts which are the subject matter of this suit.” This finding of the lower Court is correct and it is the position of law”. 

See also the cases of GLOBA COM LTD & ANOR V. AIRTEL CARDS LTD (2015) LPELR -50064(CA), OKOLO V. FRN (2018) LPELR 45431 (CA),INTERDRILL (NIG) LTD V. UBA(2017) FWLR(pt. 204)1193.

63. Therefore, relying on the case cited above, I hereby discountenanced the submission of learned counsel to the Claimant as it relates to issue No 1 in his final written address and hold very strongly that the Evidence of DW1 is not hearsay evidence.

64. In the same vein, let me also note that the Defendant did not counter claim against the Claimant. As such, this Honourable Court is not call upon to pronounce on dismissal of the Claimant. In order words, the issue of dismissal of the Claimant from the employment of the Defendant is never an issue for this Court to pronounce on it. Neither the Claimant nor the Defendant ask the Court to so do. To that extent, I shall refrain from saying anything on that in line with the decision in the case of MONIER CONSTRUCTIONS COMPANY NIG LTD V. E. AGBEJURE ENTERPRISES LTD (2013) LPELR -21167 where Court of Appeal per CHIOMA EGONDU NWOSU-IHEME, JCA at pages 12-12, paragraph G-G held thus:-

“However, the Court does not give a party what it did not pray or ask for.”

65. In the final analysis and in view of the foregoing, I hereby resolve the issue for determination in Favour of the Defendant against the Claimant and hold very strongly that the Claimant has failed to proof his case as required by law to entitle him to the relief sought. Consequently, the Claimant’s case is hereby dismissed in its entirety.

66. No order as to cost. Parties shall bear their respective cost.

67. Judgment is hereby entered accordingly.

    

 

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Hon. Justice Hassan, Muhammed Yakubu

Presiding Judge