IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON TUESDAY 28TH DAY OF JANUARY, 2020
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/02/2016
ISTVAN IMRE NAGY……………………………CLAIMANT
COEC CONSTRUCTION (NIG) LTD…………….DEFENDANT
J U D G E M E N T
The Claimant, at all times material to this suit, was the Project Manager of the Defendant Construction Company. His contention is that his salary was stopped by the Defendant between May 2015 and November 2015. The Claimant’s complaints to the Defendant on different occasions regarding the nonpayment of his salaries did not yield positive result; and as a result, he claimed that he became the subject of abuses, insults, unfounded and defamatory allegations especially from one Ken Egbunike.
2. On the premises of these briefly summarized facts, the Claimant by his Amended Statement of Claim filed on 15/12/2016 claimed against the Defendant, the reliefs set out as follows:
1. The sum of $12,000 (Twelve Thousand United States Dollars) or its equivalent in Naira at the Central Bank of Nigeria official exchange rate at the date of judgement being Claimant’s salaries from June 2015 to November 2015 at the salary rate of $2,000 (Two Thousand United States Dollars) per month.
2. N374,000.00 (Three Hundred and Seventy Four Thousand Naira) being expenses and money incurred and spent by Claimant for and on behalf of the Defendant in May and July 2015.
3. The monthly salary of $2,000.00 (Two Thousand United Stated States Dollars) or its equivalent at the Central Bank of Nigeria official exchange rate for the month of December 2015 till date of judgement.
4. The cost and expenses including legal fees of this suit.
3. In the Statement of Defence filed on 29/02/2016, the Defendant joined issues with the Claimant by denying the entirety of his claim. The Defendant contended, in summary, that it did not owe the Claimant any salary as the Claimant has ceased to be in its employment as at May, 2015; that the Claimant was paid the salary for the duration of the contract as agreed by parties. The Defendant further denied that the Claimant’s contract of employment was renewed and contended that the parties had an Ad hoc agreement and for which the Claimant had been paid in cash.
The Claimant’s Reply to the Statement of Defence was filed on 02/06/2016.
4. At the plenary trial, the Claimant testified for himself and called no witness. He adopted his Statements on Oath as his evidence in support of his claim and further tendered a total of four (4) documents as Exhibits C1 – C4. The Claimant was subjected to cross-examination by the Defendant’s learned counsel; after which his case was closed.
I must note that the learned Defendant’s counsel raised objection to the admissibility of the documents marked as C4 (A) – C4 (M) and C5 – C5 (B). I shall deal with the objections raised by learned counsel as they arise in the course of this judgement.
Although the Defendant filed a Statement of Defendant and the Witness Deposition on Oath of their sole witness, the Defendant however elected to rest its case on that of the Claimant’s.
Thereafter, parties filed and exchanged their written final addresses.
5. In the address filed on behalf of the Claimant on 04/07/2019, and settled by Napoleon O. Idenala, Esq., of counsel for the Claimant, a sole issue was canvassed as having arisen for determination in this suit, that is:
Whether having regard to all the circumstances of this case and the clear and unambiguous evidence of the Claimant, this is an appropriate case for the exercise of the Court’s judgement in favour of the Claimant for the reliefs claimed in this suit.
In the final address filed on behalf of the Defendant on 05/08/2019, its learned counsel, Felix. J. Osimera, Esq., identified four issues as having arisen for determination in this suit, namely:
1. Whether the Claimant has established by evidence, that he was employed by the Defendant beyond the three (3) months stipulated in his letter of employment admitted as Exhibit C1
2. If the Claimant is established to be in the employment of the Defendant beyond the three (3) months stipulated in Exhibit C1, whether the terms and conditions of his continued employment were established by credible evidence, to entitle him to his claim of $12,000.00 (Twelve Thousand United States Dollars) or its Nigerian currency equivalent from June 2015 to November 2015.
3. Whether the Claimant’s claim of N374,000.00 (Three Hundred and Seventy- Four Thousand Naira) being expenses and money incurred and spent by him for or on behalf of the Defendant in May and July 2015 and the cost and expenses including the legal fees, being claims in special damages, have been strictly proved and established, to warrant its award or grant by this Honourable Court.
4. Whether the Claimant was entitled to claim for monthly salary of $2,000.00 (Two Thousand United States Dollars) or its Nigeria equivalent for the month of December, 2015 until the date of judgement in this suit.
The Reply on Points of Law to the Defendant’s written address was filed on 30/10/2019.
6. On the basis of the Claimant’s claim, the relevant evidence adduced at the trial, and the totality of the circumstances of this case, my view is that the focal issues that call for resolution in this suit, without prejudice to the issues raised by the parties, could be succinctly framed as follows:
1. Whether there was a breach of contract (Contract of Employment – Exhibit C1) by the Defendant?
2. Whether the Claimant is entitled to the reliefs sought in the Amended Statement of Facts.
I have also taken cognizance of the totality of the arguments canvassed by the respective learned counsel in their written addresses; to which I shall endeavour to make specific reference as I deem needful in the course of this judgment.
ISSUES ONE & TWO:
7. I now proceed to determine the two issues together.
The case of the Claimant as told by him is simple and straightforward. The Claimant was employed by the Defendant as Project Manager from 30/01/2015 by a letter of employment which was tendered in evidence as Exhibit C1. The Claimant claimed that he thereafter diligently carried out all his duties assigned to him by the Defendant who usually acted through one Ken Egbunike and sometimes through Alhaji Bashir, the Chairman.
The Claimant testified further that the Defendant paid him his agreed salary of $2,000 (Two Thousand United States Dollars) or its equivalent until May 2015 when his salary was stopped. According to the Claimant, he was not deterred by the stoppage or nonpayment of his salary but he carried out any duty or function assigned to him by the Defendant.
The Claimant further testified that on several occasions he demanded for his salary and loans from the Defendant through phone calls, text messages, Whatsapp messages and emails to Ken Egbunike but the said Ken told him to be patient. The Claimant testified further that due to his several demands of his salary or some form of financial assistance from the Defendant, he became the subject of abuses, insults, unfounded and defamatory allegations especially from Ken Egbunike all in a bid to avoid payment of his lawful entitlements.
8. When all efforts made by the Claimant to collect his unpaid salaries failed, he engaged the services of a solicitor to demand for his salaries to enforce his trampled rights by the Defendant. He tendered in evidence as Exhibit C2, copy of the said letter of demand, dated 19/11/2015.
Specifically, in the letter, Exhibit C2, written by the Claimant’s Solicitor to the Defendant on 23/11/2015 and captioned: “Demand of salary and other expenses of Mr. Istan Imre Nagy (from June and May 2015 respectively to date” the Claimant, through his Solicitor, narrated the events relating to the issue of the Defendant’s failure to pay his salaries and the refund of the money expended by the Claimant in the course of his duties. The Claimant also tendered in evidence as Exhibit C3, the reply of the Defendant to the letter of demand dated 23/11/2015. Exhibit C4 and the documents marked as C 4(A) – C4 (M) and C5 – C5B are the series of correspondence exchanged between the Claimant and the Defendant, with respect to his claim from the Defendant.
9. As I had earlier stated, the Defendant had filed a Statement of Defence wherein it denied the entirety of the Claimant’s claim but did not call any witness nor tendered any document in defence but rested its case on that of the Claimant.
The law is that facts averred to in pleadings must be substantiated by evidence and in the absence of such evidence, the averments are deemed abandoned. See: U.B.N Plc Vs Astra Builders (W.A. Ltd)  5 NWLR (Pt 1186) 1; Skye Bank Plc Vs Akinpelu  9 NWLR (Pt 1198) 179; Aregbesola Vs Oyinlola  9 NWLR (Pt 1253) 458; Admin/Exec; Estate, Abacha Vs Eke-Spiff  7 NWLR (Pt 1139) 97.
As correctly submitted by the learned Counsel for the Claimant, it is the law that where a Defendant does not adduce evidence, the evidence before the Court goes one way leaving the Court with no other evidence or set of facts with which to do the measuring of the scale. This is because in a situation where a Defendant leads no evidence in proof of the facts pleaded by him, such pleading is deemed abandoned and the Defendant would be left with nothing with which to present against the Claimant.
10. However, in a situation as the present case where a Defendant abandons his pleading and rests his case on the Claimant’s evidence, he is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the Claimant. In such a situation, it may mean that:
(a) The Defendant is stating that the Claimant has not made out any case for the Defendant to controvert or respond to; or
(b) He admits the facts of the case as presented by the Claimant; or
(c) He has a complete legal defence in law in answer to the Claimant’s case.
11. Without doubt, burden of proof is on the party who alleges the affirmative and it lies on the party who will fail in the case where no evidence is given. Generally, the burden of proof rests on the Claimant.
See Nwavu & Ors Vs Okoye & Ors  LPELR – 2116, where the Supreme Court emphatically stated:
“The legal burden is the proof which remains constant throughout a trial… it is the burden of establishing the facts and contentions which will support a party’s case. If at the end of trial he has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually incumbent upon the plaintiff to prove what he contends as the golden rule is that the onus of proof is on the plaintiff… Thus, the burden rests upon the party desiring the Court to take action. He must satisfy the Court or Tribunal that the conditions which entitle him to an award have been satisfied… In respect of particular allegation, the burden lies upon the party for whom the substantiation of that particular allegation is an essential of his case…”
See also Arjay Ltd & Ors Vs A.M.S. Ltd  LPELR 555 (SC); Diamond Bank Ltd Vs Partnership Investment Co Ltd & Anor  LPELR 939 (SC); Bamigbehin & Ors Vs Oriare & Ors  LPELR 733 (SC).
In this case, it is certainly the duty of the Claimant to not only establish his claim for unpaid salaries for the months of June 2015 to November 2015 but to also prove that he is entitled to monthly salary of $2,000 (Two Thousand US Dollars) from December 2015 to date of judgement and the claims for expenses he incurred and spent for and on behalf of the Defendant.
From the evidence on record which the parties are clearly not in disagreement, the main document that seemed to guide the contract of employment between the parties, relating to the terms of employment, is Exhibit C1. There is no dispute that the offer of employment was accepted by the Claimant and that he worked and was paid salary till May 2015 when he claimed his salary was stopped.
12. Now, as can be gleaned from the letter of employment – Exhibit C1, the duration of the contract of employment, was for a period of 3 months (Ninety Days) after which it will be renewable. Furthermore, while answering question under cross – examination from the learned Defendant’s counsel, the Claimant, corroborated his deposition in paragraph 5 of his Statement on Oath and testified as follows:
“I was paid in US Dollars for the first three months and subsequently in April 2015, paid the Naira equivalent. I started working with the Defendant in January 2015; I started work immediately Exhibit C1 was signed.”
The Claimant further testified in his additional Statement on Oath that he exchanged many correspondences through telephone calls and Whatsapp messages with one Ken Egbunike of the Defendant whose name was saved as Ken Cook on number 08179590181.
To further establish his claim, the Claimant tendered in evidence Exhibit C4, the print out of one of the Whatsapp messages, he claimed to have sent to the said Ken Cook.
13. As I earlier noted, the learned Defendant’s counsel had raised objection to the admissibility of the print out of the Whatsapp messages and the emails of the Claimant’s correspondences with the Defendant to prove of his claim. The said Whatsapp print out and email messages were marked as C4 (A) – C4 (M) and C5 – C5 (B) respectively.
As correctly submitted by respective learned counsel, the said documents were electronically generated.
14. The next crucial hurdle is whether the said documents marked as C4 (A) – C4 (M) and C5 – C5 (B), being computer generated evidence, complied with the provisions of Section 84 of the Evidence Act, 2011.
Section 84 Evidence Act (supra) states the pre-conditions for admissibility of electronically generated evidence.
Section 84 provides as follows:
“(1) In any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and the computer in question.
(2) The conditions referred to in Subsection (1) of this section are:
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate-
a. identifying the document containing the statement and describing the manner in which it was produced; or
b. giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; or
c. dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
15. The provisions of Section 84 (supra) which state conditions for admitting in evidence any electronically generated document are central in determining the admissibility of a document emanating from a computer. The main objective of these provisions is to authenticate and validate the reliability of the computer which generated the evidence sought to be tendered. It was necessary to prove that a computer was operating properly and was not used improperly before any statement in a document produced by the computer could be admitted in evidence. Evidence in relation to the use of the computer must therefore be called to establish compliance with the conditions set out in Section 84(2).
In Kubor Vs Dickson  LPELR-9817, the Supreme Court, per Onnoghen, JSC (as he then was) affirmed that computer-generated evidence or documents which did not comply with the pre-conditions laid down in Section 84(2) were inadmissible. This decision was affirmed by the Apex Court in Dickson Vs Sylva & Ors  LPELR-41257(SC)as follows:
“In this digital age when different creations can be achieved electronically, the reason for the requirement of authentication or certification of the gadget or computer used in producing and processing the electronically generated documents is not farfetched. The party seeking to rely on such evidence must be able to show that the data and information contained in the electronically generated document is truly what it claims to be. The pre-conditions for admissibility set down by Section 84 are to establish this fact. The relationship between the computer and the information is crucial. The electronic evidence must be produced from a computer or gadget that is inherently reliable and has been in operation over the relevant period. There is no doubt that with present and even future technological advances, the pre-conditions attached to admissibility of electronically generated evidence by Section 84 may no longer be sufficient to authenticate the reliability of electronic evidence. However, these challenges are not in issue herein. One constant is that a computer or gadget will only reproduce what has been fed into it. The computer or gadget will demonstrate or play what it receives. This is the reason why there is no further need for certification of the computer or gadget to be used to demonstrate or to play already properly admitted electronically generated evidence, which had complied with the pre-conditions of Section 84.
The burden of proving that there had been no improper use of the computer and that it was operating properly could be discharged without calling a computer expert. It may be discharged by calling someone familiar with its operation in the sense of knowing what the machine was required to do and who could say that it was doing it properly. In other words, oral evidence may be given of the working of the computer in line with the provisions of Section 84(2). (Underlining for emphasis)
See also Brila Energy Ltd Vs F. R. N  LPELR 43926
16. The contention of the learned counsel for the Defendant on the admissibility of these documents is that the Claimant did not satisfy the laid down conditions provided in Section 84 (4) of the Evidence Act. Learned Defendant’s counsel submitted the said documents marked as C4 (A) – C4 (M) and C5 – C5 (B) are inadmissible since the Claimant failed to attach a certificate of compliance as required by Section 84 Evidence Act. Learned counsel relied on the case of Dickson Vs Sylvia (supra).
Learned Defendant’s counsel further urged the Court to expunge Exhibit C4, from its record for the Claimant’s failure to satisfy the preconditions required in Section 84 (4) for admissibility of electronic document.
Learned Defendant’s counsel further submitted that there is no proper authentication of the mobile number of the owner or user of the mobile number which the Claimant alleged to have saved with the name “Ken Cook” especially since no number was shown or indicated on the said Whatsapp messages. Learned counsel submitted that without the authentication of the service provider to prove that the Whatsapp messages emanated from the said Ken Cook as alleged, the assertion of the Claimant is based on speculation. Learned counsel for the Defendant urged the Court to discountenance the evidence of the Claimant in this regard.
17. Now, the testimony of the Claimant at paragraphs 7 and 8 of his Additional Statement on Oath is as follows:
“As a result I plugged my phone to my personal computer and personally printed the messages exchanges between myself and Ken Egbunike especially those dated 5/8/2015,7/8/2015, 11/8/15,12/8/15,29/8/15,30/8/15,2/9/15,21//9/15,22/9/15,25/9/15,28/9/15,5/10/15,6/10/15,7/10/15,8/10/215,16/10/15,22/10/15,26/10/15,27/10/15,29/10/15,30/10/15,1/11/2015,2/11/15,4/11/15,10/11/15,14/11/15, 15/11/15.
All these printed bear Ken Cook because that is how I saved his name in my phone.”
“That two of the documents attached to my claim before this Honourable Court is an email of a query from Ken Egbunike headed “Query on Millennium City Project” dated 13/8/15 and which were all similarly downloaded in similar manner above my phone.”
18. Has the Claimant by the above stated evidence satisfied the preconditions as laid down in Section 84 (supra) for the admissibility of these documents? My answer to this poser is emphatic no!
The Claimant had testified that the documents were print out from his phone but did not state that the documents were produced during a period over which the computer/device was used regularly to store or process information; that over that period, there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained and that throughout the material part of that period, the computer was operating properly.
The learned counsel for the Claimant’s argument in his Reply to the Defendant’s written address is that the Claimant substantially satisfied the requirement of Section 84 Evidence Act. I make haste to dismiss the incredible arguments of the Claimant’s learned counsel on substantial compliance of Section 84 Evidence Act. What is required by law is full compliance and not substantial compliance as learned counsel assumed.
19. I also note that the Claimant’s learned counsel, on the erroneous interpretation of Section 84 Evidence Act and the inapplicability of the case of Dickson Vs Sylvia (supra), devoted a substantial portion of his arguments in his Reply to the Defendant’s written address to cover up for evidence not adduced.
It is trite that counsel’s address, no matter how brilliant, is not substitute for evidence. As such, the totality of the submissions and arguments of the Claimant’s learned counsel (and indeed the Claimant’s learned counsel’s Reply arguments in that regard) as to the substantial compliance with the requirements of Section 84 of the Evidence Act is totally misconceived and is hereby discountenanced.
20. The said documents were apparently electronically generated evidence; but no foundation whatsoever was laid for their admissibility and reliance as required by the well known provisions of Section 84(4) of the Evidence Act.
Having failed to satisfy the requirements relating to admissibility of electronically generated documents in this regard, the said documents marked as C4 (A) – C4 (M) and C5 – C5 (B) are hereby declared inadmissible and as such accordingly rejected. I so hold.
21. Furthermore, as learned counsel for the Defendant had correctly submitted, the Court has the power to expunge from its record wrongly admitted documents. When evidence has been wrongly admitted, it does not qualify as legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been adduced or tendered and admitted. The court cannot rely on it in reaching its ultimate decision. Indeed, any finding or decision based on such inadmissible evidence would be perverse. See Agbaje Vs Adigun  1 NWLR (Pt 269) 261; Hassan Vs Maiduguri Management Committee  8 NWLR (Pt 212) 738); Olowoyo Vs Ojo & Ors  LPELR 4504
I agree with the learned Defendant’s counsel that Exhibit C4 which is an electronically generated document was wrongly admitted by the Court as the Claimant did not comply with the requirements of Section 84 Evidence Act in tendering same. The said Exhibit C4 is hereby accordingly expunged. I so hold.
22. Now, has the Claimant proved that he was employed beyond the period of the contract as stated in the terms of his contract and has he proved his entitlement to his claims for money incurred and spent by the Claimant for and on behalf of the Defendant in May and July 2015?
As the learned counsel for the Defendant as correctly submitted, it is stipulated in Exhibit C1, that the Claimant’s employment with the Defendant commenced on 30/01/2015. The validity period of the contract is for three (3) months – (Ninety Days) after which it will be renewable.
It is trite law that parties to a contract are bound by its terms and that the express terms of a contract of employment govern any aspect of the relationship between the employer and the employee. The whole essence and or sanctity of contract is for parties to operate within the confines of their contractual agreement for the mutual benefits of the parties to the contract which in this case is master and servant relationship. The Court will not be swayed by any arm-twisting tactics or antics of any of the parties to the contract so as to escape the true intention of the parties. The parties are strictly bound by the terms or conditions embodied in the contract.
See Aji Vs CBDA & Anor  16 NWLR (Pt 1486) 554 at 574 per OKORO, JSC where he stated as follows:-
“It has to be understood that as the contract of service is the bedrock upon which an aggrieved employee must found his case he succeeds or fails upon the term thereof. Therefore, in a written or documented contract of service, the Court will not look outside the term stipulated or agreed therein in deciding the rights and obligations of the parties.
See also Lewis Vs U. B. A Plc  6 NWLR (Pt 1508) 329; Ogunjimi Vs Incorporated Trustees of T.Y. Danjuma Foundation & Anor  LPELR 45274
23. I had reproduced the salient parts of Exhibit C1, Employment Contract between the parties and I am of the solemn and firm view that the terms makes it clear that the employment of the Claimant would be for three years (3) certain after which it will be renewable.
Furthermore, there is no iota of evidence by the Claimant to prove that his employment with the Defendant was renewed. Indeed, in Exhibit C3, the Defendant’s reply to Exhibit C2 – the Claimant’s letter of demand, the Defendant unequivocally denied the fact that the Defendant renewed the contract with the Claimant.
The relevant portion of Exhibit C3 states that:
“…..Mr. Istan Nagy was employed on a three month employment contract on 29th January, 2015. The said contract expired on 29th March 2015.”
“During this period, Mr. Istan Nagy exhibited certain dubious traits which made the management to decide not to renewable contract in March. The contract as negotiated was therefore invalid from 30th March, 2015 based on unsatisfactory performance of Mr. Nagy.
24. Furthermore, apart from the evidence averred by the Claimant that he made several demands from the Defendant for the unpaid salaries and the sum N374,000.00 the Claimant alleged that he spent and/incurred on behalf of the company in May and July respectively, (which the Defendant denied), there is no iota of evidence on record to prove these claims.
In the face of these towering direct denials of liability through Exhibit C3 and the corroborative evidence of the Claimant under cross – examination, it is settled beyond conjecture that the contract of employment was not renewed between the parties. I so hold.
My finding therefore is that the Claimant has failed to establish, to the satisfaction of the Court, his entitlement to the unpaid salaries and the sum expended on behalf of the Defendant, as claimed. I reckon that no concrete evidence was adduced with respect of these claims and as such the claims are unsustainable.
Suffice to also add that the Claimant’s reliefs for professional fees have become spent and overtaken by reason of the failure of the entirety of his principal reliefs.
In the final analysis, having resolved the entirety of the issues set down for determination in this suit against the Claimant, the final decision of the Court is that the Claimant’s case is unmeritorious. It shall be and it is hereby accordingly dismissed in its entirety.
I make no orders as to costs.
SINMISOLA O. ADENIYI