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<p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size:14.0pt;font-family:"Times New Roman","serif"">REPRESENTATIONS:<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 14.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;font-family:"Times New Roman","serif"">M. B. YUSUF, ESQ; FOR CLAIMANT<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 14.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;font-family:"Times New Roman","serif"">R. FASOGBON, ESQ; FOR THE 1<sup>ST</sup> DEFENDANT<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 14.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">3.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;font-family:"Times New Roman","serif"">A. R. DARAMOLA, ESQ; FOR THE 2<sup>ND</sup> DEFENDANT<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:14.0pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:18.0pt; mso-bidi-font-size:14.0pt;font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:18.0pt; mso-bidi-font-size:14.0pt;font-family:"Times New Roman","serif""> </span></u></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman","serif"">This suit was commenced under the General Form of Complaint dated 16<sup>th</sup> August, 2012 and filed same day. This was accompanied with a Statement of Facts and other documents. The 1<sup>st</sup> and 2<sup>nd</sup> defendants also filed their respective Statements of Defence and the claimant also filed replies to these. The reliefs claimed in the Statement of Facts are as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="text-indent:.5in"><span style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman","serif"">The plaintiff’s claim is for:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">a.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">A DECLARATION that the employment of the Plaintiff with the 2<sup>nd</sup> Defendant was wrongfully terminated.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">b.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">A DECLARATION that 2<sup>nd</sup> Defendant discriminated against the Plaintiff.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">c.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">A DECLARATION that the unprofessional act of the 1<sup>st</sup> Defendant has stigmatized the Plaintiff.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">d.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whereof the Plaintiff claims against the 2<sup>nd</sup> Defendant the sum of N20,000.00 as the salary she was entitled to, for the month of February, 2012, 21% interest on the N20, 000.00 as the Plaintiff salary due for payment since 29<sup>th</sup> February, 2012 but yet to be paid and an arrears at the same rate of N20,000.00 from the month of March, 2012 until the conclusion of this suit, as special damages.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">e.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whereof the Plaintiff claims against the Defendants jointly and severally the sum of N20, 000, 000.00 (Twenty Million Naira Only) for the unprofessional act of the 1<sup>st</sup> Defendant, the discrimination, wrongful communication of an unconfirmed blood test result by the 2<sup>nd</sup> Defendant and the wrongful termination of the employment of the Plaintiff by the 2<sup>nd</sup> Defendant, as general damages.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">f.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The cost of this suit and its Solicitor’s fee.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">g.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">An order for a public apology by both the 1<sup>st</sup> and 2<sup>nd</sup> Defendants in three National News Papers, every day for three consecutive weeks. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The matter was eventually opened on the 16<sup>th</sup> September, 2013. CW1 was taken in evidence-in-chief. After she sworn, she said she deposed to a witness statement on oath in this Court on the 16<sup>th</sup> August, 2012. She subsequently adopted same as her evidence-in-chief in this matter. This was admitted as Exhibit CLW1a – CLWE. Subsequently, CW1 through her counsel tendered other documents which were all admitted without objection as exhibits in this case. They shall not be listed now but shall be referred to as events dictate in the course of writing this judgment. The case was later adjourned to 4<sup>th</sup> October, 2013 for the Head of Unit of National Institute of Medical Research/Human Virology Laboratory to appear to give evidence on subpoena on the Institute’s HIV Report on the claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">On the 4<sup>th</sup> October, 2013, the matter came up. CLW1 was cross-examined. She said she only attended a primary school and that she had a primary school certificate. She said she was not a person who could be easily deceived. She said on the 1<sup>st</sup> of March, 2012 she was on medication that affected her. She agreed that the medication affected her reasoning. She said on this 1<sup>st</sup> of March, 2012, Mrs. Tolulope asked a driver to take her somewhere but that she did not ask where the place was. <u>She agreed that the signature on Exhibit CLW1A belongs to her husband</u>. She said on 3<sup>rd</sup> February 2012 her blood sample was taken at Bayo Ogunro Memorial Hospital & Maternity Home. She said she knew that HIV, Pregnancy and TB tests were performed on her. She said she did not raise any objection. She agreed that she was not threatened or forced to take the tests and that she did not raise any objection against her blood samples being taken. She said she did not know the employee of the 1<sup>st</sup> defendant who took her blood samples. She said she had not been to the 1<sup>st</sup> defendant’s Laboratory prior to 1<sup>st</sup> March, 2012. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">She went further to say that she did not ask why her blood sample was being taken because the man who took her to the Laboratory introduced her that she was from the 2<sup>nd</sup> defendant. She said she knew that her blood sample was being taken for tests to be conducted thereon. She said the results on Exhibit CLW3 were the results of the blood test conducted on her. <u>She said she did not know the difference between an HIV result that was positive and the one that is reactive</u>. She said she saw Exhibit CLW3 for the first time in September, 2013. She said she knew Chuks Okeugor & Co. and that they are her lawyers. She agreed that she instructed her counsel to write Exhibit CLW6A. She said she heard from the 1<sup>st</sup> defendant that she was HIV positive and that that was why he sent her out of his house. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Subsequently she agreed that she knew West Alternative International Ltd and that the company was her employer. She stated that she was employed on 15<sup>th</sup> February, 2012. She said she did not work in any other place before working with the defendant. She said Exhibit CLW2A is an agreement between her and West Alternative International Ltd. She later said it is an agreement between West Alternative and the 2<sup>nd</sup> defendant. She said she was employed to take care of the 2<sup>nd</sup> defendant’s home and their children. She said she also cooked for the 2<sup>nd</sup> defendant. <u>She said between 15<sup>th</sup> February and 2<sup>nd</sup> March 2012 she took permission to be off work for 3 days but stayed off for two weeks. She later said she could not remember whether she came back at the end of the 3 days permitted or thereafter</u>. She said she informed West Alternative International Ltd that she had been given 3 days permission to be off work. She said her reason for taking 3 days off work was because she had house problem. She said she did not make any other request from the 2<sup>nd</sup> defendant before she left for the 3 days. She said she was not paid any salary for the period she worked with the 2<sup>nd</sup> defendant. She said she was told her salary would be paid when she was employed. She said the West Alternative opened an account with the First Bank where her salary would be paid. She said her salary was to be paid into the said account by West Alternative International Ltd. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><u><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">She agreed that she left the 2<sup>nd</sup> defendant on 18<sup>th</sup> February, 2012. She said she worked up to a week before she took permission off work</span></u><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">. She said but before she left for the 3 days off work the 2<sup>nd</sup> defendant gave her five thousand naira. She said her salary as agreed to with the West Alternative International Ltd was twenty thousand naira per month. She agreed that she did not request the 2<sup>nd</sup> defendant to pay her salary directly to her. She said she was not told why she was sent to the 1<sup>st</sup> defendant for a test. She said she was not told where they were travelling to but that only the 2<sup>nd</sup> defendant told her that they were travelling. She said she was working with the 2<sup>nd</sup> defendant in Magodo, Lagos but cannot remember the address. She said the distance between Magodo, where the 2<sup>nd</sup> defendant lived, and Ketu, where she said she fell because the 2<sup>nd</sup> defendant told visitors that she was HIV positive was quite far. She said three of them: the driver, one other person and herself were the persons that left the 2<sup>nd</sup> defendant’s house to the 1<sup>st</sup> defendant’s Laboratory on 1<sup>st</sup> March, 2012. She said she was given the opportunity to enter the madam’s and her husband’s bedroom. She said the 2<sup>nd</sup> defendant stayed in a duplex. At this stage, the cross-examination was brought to an end. There being no re-examination, the matter was thereafter adjourned to 16<sup>th</sup> and 17<sup>th</sup> December, 2013. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The matter came up on 3<sup>rd</sup> July, 2014. On this date, counsel to the claimant closed the claimant’s case. The matter came up next for hearing on the 11<sup>th</sup> February, 2015. DW1 was led in evidence. DW1 agreed that he knew the claimant and that he swore to a written Statement on Oath on 3<sup>rd</sup> October, 2012. This was tendered and admitted as Exhibit DW1A – DW1B. He said that he completed a laboratory request form in respect of the claimant. He identified the form. This was tendered and marked as Exhibit DW1C. The examination-in-chief was brought to an end and the cross-examination commenced in earnest.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Under cross-examination, DW1 admitted to know the claimant. He said she is Mrs. Maduako. He said he still stood by his depositions in paragraph 3 of Exhibit DW1A – DW1B. He said the distance between the front desk and the company’s car park is not much. He said the front desk is located directly in front of the car park and not at the back. He said this meant that anybody that came to their Laboratory would be seen by him where he sat. He agreed that he knew Mrs. Tolulope Fadipe before the 1<sup>st</sup> of March, 2012. He said after sending the Request Form to the Lab he came back to his seat. He said he was not inside the Lab when the claimant’s sample was taken. He insisted that he was aware that the claimant willingly submitted for her sample to be taken because there was no screaming and that the claimant also came out without any complaint. He said results of test are given to those who came personally but in the cases of people brought by other persons, the results are given to those that sponsored the tests. He said the only way of knowing the number of tests conducted on a patient is by the filling of the general form. He said he did not know the result of the test conducted on the claimant. The cross-examination was brought to an end at this stage.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The case thereafter proceeded to re-examination. Under re-examination, he said his office to the collection centre where the blood sample was taken was so close that he would know if a client did not want to allow for samples to be taken. The re-examination was brought to an end and DW1 was discharged. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Thereafter, DW2 was led in evidence-in-chief. He said on 3<sup>rd</sup> October, 2012 he swore to a witness statement on oath. This was tendered and marked as Exhibit DW2A – DW2D. At this stage the examination-in-chief was brought to an end. And the case proceeded to cross-examination. He replied that he had been a Medical Lab Technician for almost ten years. He said with his about ten years’ experience he was well knowledgeable in Medical Lab Techniques and that every profession is governed by its laws. He said he was aware that the World Health Organisation prescribed the rules governing test conducted on HIV. He said he counseled the claimant when she came in for the test. He said ‘HIV Positive’ meant the patient had HIV while ‘HIV Negative’ meant that the patient did not have the virus and that ‘Reclime’ meant that the patient should be further tested for confirmation. He said he asked the claimant when she came in at the collection centre whether he could take her blood sample and she said yes. He confirmed that the result of the test conducted on the claimant was given to Mrs. Tolulope Fadipe who brought the claimant for the test. He said Mrs. Tolulope Fadipe and the claimant were with him when he conducted the test on the claimant but that they were not with him when the result came out. He said when Mrs. Tolulope Fadipe and the claimant did not report back to him for confirmation as directed he closed and went home. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">DW2 went further under cross-examination that when he reported back the following day at work he was told that the test result has been collected and that they did not want to do confirmation test. At this stage, the cross-examination was brought to an end. There was nil re-examination. The case was thereafter adjourned to 11<sup>th</sup> and 12<sup>th</sup> March, 2015. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The matter came up on this date and DW3 was called. He said he was a Medical Laboratory Scientist and the General Manager of the 1<sup>st</sup> defendant. He tendered the witness statement on oath which was marked as Exhibit DW3A – DW3C. The case proceeded therein to cross-examination. Under cross examination DW3 said he saw the claimant in Court when she stood up as the claimant, and that he did not know the claimant before then. He said the confirmation test was not conducted because the person who brought the patient did not come to pay for the processing of the blood sample. The cross-examination was brought to an end. There was no re-examination. The case of the 1<sup>st</sup> defendant was at this stage closed. The case was thereafter adjourned to 23<sup>rd</sup> June for the 2<sup>nd</sup> defendant to open his case. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The matter however came up for further hearing on the 11<sup>th</sup> November, 2015. On this date, the 2<sup>nd</sup> defendant closed his case without calling any witness. The case was thereafter adjourned to 7<sup>th</sup> January, 2016 for adoption of final written addresses. On this date, counsel to the 1<sup>st</sup> defendant adopted his written address filed on 2<sup>nd</sup> December, 2015, and the written address of the claimant filed on 22<sup>nd</sup> January, 2016 was also adopted. Equally, the 1<sup>st</sup> defendant’s reply on points of law filed on 4<sup>th</sup> February, 2016 was also adopted. Counsel to the 2<sup>nd</sup> defendant did not call any witness and did not file any final written address. The case was subsequently adjourned to today for judgment.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">My next duty is to summarise the final addresses of counsel. I start with that of the 1<sup>st</sup> defendant, which is first in time. In arguing this written address, counsel to the 1<sup>st</sup> defendant: <b><u>Rotimi Fasogbon, Esq. and Olanrewaju Oliyide, Esq.</u></b>, who jointly settled the final written address formulated the following issues:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l2 level1 lfo4"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whether Exhibit CLW1A – E (the Statement on Oath of the Claimant) is competent in law. [sic]<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l2 level1 lfo4"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whether Reliefs 34(c), (e) and (g) in the Statement of Facts, which pertain to the 1<sup>st</sup> Defendant, are sustainable in law and fact. [sic]<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center"><b><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">ISSUE 1<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center"><b><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">Whether Exhibit CLW1A – E (the Statement on Oath of the Claimant) is competent in law?<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel cited section 117(4) of the Evidence Act, 2011 to the effect that, it is compulsory that an affidavit must be signed or otherwise initialed by the maker. Counsel argued that since Exhibit CLW1A – E was admitted to be signed by the husband to the claimant, who was not the deponent, it amounts to perjury on the part of the claimant for her to assert before the Court that she deposed to the affidavit in question. Counsel cited <b>Lawal-Osula v. U.B.A. PLC (2003) 5 NWLR (Pt. 813) 376 at 388, paras. E – F</b>, to the effect that any affidavit in violation of the Oaths Act and section 90 [now 117] of the Evidence Act becomes grossly incompetent in law. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel also cited <b>Onujabe & Ors. v. Idris (2011) LPELR – 17, paras. G – A </b>and<b> Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 546 at 608 – 609, paras. G – D </b>on the same issue, particularly the latter, on the fact that saving grace provided in sections 84 – 85, now sections [113 and 114] of the Evidence Act 2011, would not save an affidavit that is defective in substance, but only those that are defective in form. Counsel submitted that for the claimant to take refuge under section 113 of the Evidence Act, she must have sworn by herself to the affidavit, and since she failed in this respect, the defect is fundamental and renders the affidavit in question useless. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel submitted that the effect of this is that there is no evidence before the Court to substantiate the case of the claimant. Counsel cited <b>Idesoh & Anor. V Ordia & Anor. (1997) 3 NWLR (Pt. 491) 17 at 27, paras. A – D; Ochin v. Ekpechi (2000) 5 NWLR (Pt. 656) 225 at 240, paras. F – G; and Abe & Anor. V. Damawa & Anor. (2011) LPELR – 5007 (CA) 28, paras. D – E</b>, to the effect that averments contained in pleadings without evidence led in support amount to naught. Counsel therefore urged the Court to come to the conclusion that the Statement of Fact of the claimant is bereft of evidence and should therefore be adjudged useless and abandoned. On the basis of these, counsel urged the Court to dismiss the case against the 1<sup>st</sup> defendant. Thereafter, counsel moved to issue No. 2.<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center; text-indent:.5in"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">ISSUE 2<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center"><b><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">Whether Reliefs 34(c), (e) and (g) in the Statement of Facts, which pertain to the 1<sup>st</sup> Defendant, are sustainable in law and fact?<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel reacted to relief 34(c) of the claimant, which he said was based on allegations of unprofessional conduct of the 1<sup>st</sup> defendant alleged to stigmatize the claimant. Counsel argued that the claimant admitted under cross-examination that she was not under any medication which could affect her reasoning nor coerced or forced or objected when her blood sample was taken and submitted that the implication of these is that she voluntarily submitted to the test conducted on her. Counsel argued that on the contrary, evidence is before this Court that the wife of the 2<sup>nd</sup> defendant who brought the claimant to the 1<sup>st</sup> defendant informed DW1 in the presence of the claimant that she wanted HIV I & II and other tests conducted on the claimant. Counsel referred the Court to paragraph 6 of Exhibit DW1C and paragraph 8 of Exhibit DW2A – B. Counsel also referred to paragraphs 8 and paragraph 10 of DW2A – B, to the effect that, the result sheet of the medical test (Exhibit CLW3) was given to the 2<sup>nd</sup> defendant in a sealed envelope. Counsel equally argued that there is evidence before the Court from DW1 under cross-examination that Exhibit CLW3 was transmitted to the wife of the 2<sup>nd</sup> defendant who paid for the test. Counsel argued that it is very much proper for the employer of a maid, who paid for a test on the maid, to be given the result of the test. Counsel argued that these pieces of evidence were not controverted under cross-examination. On the basis of the foregoing, counsel submitted that relief 34(c) is baseless and unsustainable.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel thereafter moved to the issue of relief 34(e), (f) & (g). Counsel argued that these reliefs are consequential on relief 34(c) and that in the light of the submissions in relation to relief 34(c) hereof, these reliefs ought to fail. Counsel submitted that he who asserts must prove, and that claimant has failed woefully to substantiate her assertions in these regards. Counsel referred the Court to section 131 of the Evidence Act and <b>Kure v. The Kaduna State Local Government Service Commission & Ors. (2003) 3 NWLR (Pt. 807) 322 at 335, paras. F – G</b>, to support his submissions. Counsel also argued that the claimant has therefore totally failed to prove the assertions contained in paragraphs 7, 9, 27 and 28 of the Statements of Facts, and that this misadventure stemmed from of the fact that the claimant mistook the test conducted on her, which was an HIV Screening Test, which merely confirmed that her blood sample was reactive to be an HIV Confirmatory Test, confirming her status as HIV Positive.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel argued further that Exhibit DW1C shows that the claimant was admitted to the 1<sup>st</sup> defendant’s Laboratory for HIV I & II Screening Test and that DW2 & 3 testified that the 1<sup>st</sup> defendant only conducted an HIV Screening Test on the claimant. Counsel argued further that the 1<sup>st</sup> defendant is even incapable of conducting HIV Confirmatory Test as it lacked the equipment for same and that this is depicted in paragraphs 11 – 18 of Exhibit DW2A – B and paragraphs 13 – 19 of Exhibit DW3A – C. Counsel argued further that under cross-examination, DW2 confirmed that when the result of an HIV Screening shows that the patient’s blood is reactive, it means the patient must go for an HIV Confirmatory Test to ascertain if he/she is indeed HIV positive. Counsel argued that since a comparison of exhibits CWL3 and CLW5 shows that the former report on the claimant’s blood sample was reactive and the latter shows that it was negative, it proves that HIV Screening Test is different from HIV Confirmatory Test. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel argued further that the mischief of the claimant is shown when it is realized that claimant admitted under cross-examination to have seen Exhibit CLW3 for the first time in September, 2013, about a year and four months after it was released to the 2<sup>nd</sup> defendant by the 1<sup>st</sup> defendant. Counsel submitted that this proved that the claimant did not even know the contents of Exhibit CLW3, yet proclaimed to the whole world that the 1<sup>st</sup> defendant had issued a report declaring her HIV Positive. Counsel submitted that the frivolity of claimant’s case is further proved by the fact that the claimant admitted in her relief 34(e) that the blood test conducted on her by the 1<sup>st</sup> defendant was ‘an unconfirmed test’, showing that, as at the time of filing this suit, the claimant knew that Exhibit CLW3 did not declare her as HIV positive. Counsel submitted that arising from all the above, it becomes evident that the prosecution of this case is nothing but vexatious abuse of court’s process. Counsel then urged the Court to resolve issue 2 in his favour.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel finally urged the Court to dismiss this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">The next thing in line is the final written address of the Claimant. In arguing this address, counsel to the claimant: <b><u>Musa Bolaji Yusuf, Esq</u></b>., who settled the brief formulated two issues, which go thus:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whether the Claimant’s employment was wrongfully terminated by the 2<sup>nd</sup> Defendant, discriminated against and stigmatized by asking her to go home having received the test result sent by the 1<sup>st</sup> Defendant without any resort for the confidentiality of the information?<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:.5in; margin-bottom:10.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify; text-indent:-.25in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Whether the Claimant is entitled to the damages claimed against the Defendants jointly and severally?<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel said before arguing the issues formulated, he would first react to the issues formulated by the 1<sup>st</sup> defendant’s counsel. Counsel proceeded to respond to the 1<sup>st</sup> defendant’s issue 1. Counsel submitted that an affidavit could be used notwithstanding its defect by virtue of section 117(4) of the Evidence Act, 2011. On this submission, counsel commended <b>UBA v. Mode (Nig.) Ltd (2011) FWLR (Pt. 40) 1664</b> to the Court. Counsel argued that even for the sake of argument, <u>if it is agreed that the claimant confusingly agreed that she was not the deponent to Exhibit CLW1A – E</u>, the fact that the contents of the exhibit are relevant is enough for the Court to make use of them, as the modern trend is that a court of law would not allow technicality to becloud substantial justice. On this, counsel relied on <b>Aniggata v. Obi (2011) 51 WRN 134 and Abubakar v. Yar’Adua (2008) 14 WRN 1</b>. Counsel urged this Court to rely on section 12(2)(b) [of what he did not mention] to disregard the provisions of the Evidence Act in favour of substantial justice. Counsel thereafter moved to the issues he formulated. <o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center; text-indent:.5in"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">ISSUE 1<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center"><b><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">Whether the Claimant employment was wrongfully terminated by the 2<sup>nd</sup> Defendant, discriminated and stigmatized by asking her to go home having received the test result sent by the 1<sup>st</sup> Defendant without any resort for the confidentiality of the information?<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel argued that it is an accepted fact between the parties that the 2<sup>nd</sup> defendant sent away the claimant after receiving the test result from the 1<sup>st</sup> defendant, but that what is in contention is the defence of the 1<sup>st</sup> defendant that because it had a contract with the 2<sup>nd</sup> defendant, it was obliged to hand over the said result to her. Counsel cited Code 44 of the Rules of Professional Conduct for Medical and Dental Practitioners of Nigeria 1990 [RPCMDPN] to the effect that, the law is that any information about a patient gotten in the course of patient/doctor relation must not be divulged to a third party. Counsel referred to the Seventh Edition of the Black’s Law Dictionary on the meaning of a third party. Counsel submitted that, on this score, the act of the 1<sup>st</sup> defendant in giving the result of the test to a third party is not excusable in law.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel also cited the World Medical Association International Code of Medical Ethics adopted by the 3<sup>rd</sup> Geneva Assembly of World Medical Association, London, October 1949 as amended by 22<sup>nd</sup> World Medical Assembly Sydney, Australia, August, 1968, and the World Medical Assembly Venice, Italy, October, 1983. Counsel argued that Nigerian medical profession and practice is bound by the rules of these conventions, and that the duties of the physicians include respect to rights of patients and safeguarding of patients’ confidences. Counsel submitted that on this basis, the act of the 1<sup>st</sup> defendant in sending the result of the claimant to the 2<sup>nd</sup> defendant is culpable and negligent. Counsel also argued that by this act, the 1<sup>st</sup> defendant has breached the Hippocratic Oath that was taken. Counsel also cited the Australian Health Operational Circular on Patients’ Confidentiality, to the effect that, patients’ secrets must not be divulged without patients’ consents. Counsel argued that it is only public interest that is recognized as an exception to the rule that patients’ confidence must be kept secret by medical practitioners.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel conceded that when confidential information is shared between healthcare workers, consent is taken as implied. Counsel however argued that the alleged HIV status of the claimant was shared between the 1<sup>st</sup> and 2<sup>nd</sup> defendant, who is not a healthcare worker. Counsel submitted that apart from the fact that the alleged medical information concerning the claimant was divulged unlawfully, the implication of terminating the appointment of the claimant as a result of this information is discriminatory. Counsel relied on the definition of discrimination contained in the Seventh Edition of the Black’s Law Dictionary. Counsel argued that this sort of discrimination based on health status of the claimant is frown at all over the world. Counsel cited the foreign case of <b>Mahindra Lekha (IRC 277 OF 2004)</b>, a Malawian case on discrimination, to the effect that, it was held that the respondent who terminated the appellant’s appointment because of the HIV status violated the appellant’s right to equality and right to fair labour practice, and that the dismissal was thus unfair. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel further cited a South African case: <b>Hoffman v. South African Airways (CC17/00) ZACC 17; 2001 (1) S.A. 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365 [CC] (28 September, 2000)</b>, to the effect that, it was held on appeal that the denial of employment to the appellant because he was HIV positive impaired his dignity, constituted unfair discrimination, and consequently violated the appellant’s right to equality guaranteed by section 9 of the South African Constitution. Counsel also cited an Indian case: <b>MX of Bombay Indian Inhabitants v. M/S. ZY and another on 3<sup>rd</sup> April [year not stated]; also AIR 1997 Bom 406, 1997 (3) BomCR 354, (1997) 2 BOMIR 504</b>, to the effect that, the employer of a casual worker who was laid off because of his HIV Status was ordered to take him back and to pay 40 months wages which the employee was supposed to have made during the period he was out of job. Counsel further cited a Canadian case: <b>Fontaine v. Canadian Pacific Ltd [without further citation details] </b>and<b> </b>another case:<b> Sarah Diau v. Botswana Building Society, 19 December 2 003. No. IC 50/2003</b>. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">In <b>Sarah Diau v. Botswana Building Society</b> [supra], counsel submitted that in spite of the fact that there was no HIV policy in place in Botswana, the Botswana Labour Court relied on a combination of the Botswana Constitution, which forbids discrimination at workplace, Convention 111 of the ILO, which Botswana has ratified and the international obligations of Botswana thereat, to come to the conclusion that the requirement of submitting a document showing the HIV status was a violation of the right to liberty and held that the termination of employment was unfair and therefore unlawful. Counsel submitted that since the termination of the claimant was based on the result of her HIV status, following the above cited foreign authorities, this Court must come to the conclusion that the termination was unlawful in line with section 34 of the 1999 Constitution of Nigeria and Article 5(1) of the African Charter on Human Rights and People’ Right. Thus, issue no. 1 was brought to a conclusion.<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center; text-indent:.5in"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">ISSUE 2<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="margin-right:.5in;text-align:center"><b><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">Whether the Claimant is entitled to the damages claimed against the Defendants jointly and severally?<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel submitted that if issue 1 is resolved against the defendants, it follows that the claimant is entitled to all the reliefs claimed against the defendants personally, jointly and severally.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel finally urged the Court to grant the claimant’s prayers. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">I shall now move to the 1<sup>st</sup> defendant’s reply on points of law settled by <b><u>Segun Adaranijo Esq</u></b>. Counsel argued that the reliance on section 12 of the NICA cannot avail the claimant as section 12 of the NICA is geared towards avoidance of reliance on undue technicality and not to cure a fundamental defect of the claimant taken a deposition she did not sign as her own. Counsel also argued that the references to the Hippocratic Oath and the Rules of Conduct for Dental and Medical Practitioner are misplaced as the 1<sup>st</sup> defendant’s Laboratory is not a hospital and there was no evidence of the claimant being attended to by a doctor to warrant the application of the rules pertaining to the medical profession. Counsel also disagreed with the claimant’s description as a patient and argued that only those who received medical treatment, counseling or consultation could be called a patient. Counsel submitted that the actual client of the 1<sup>st</sup> defendant was the wife of the 2<sup>nd</sup> defendant who paid for the test. Counsel argued that the privity of contract was between the 1<sup>st</sup> defendant and the wife of the 2<sup>nd</sup> defendant, to whom the 1<sup>st</sup> defendant rightfully gave the result of the test.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Counsel finally urged the Court to dismiss the case of the claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">I have painstakingly summarised the written addresses of counsel to the opposing parties as depicted above. I have also carefully read all the processes relating to this suit and digested them. The next task is to apply law to the facts of the case and arrive at a decision. In doing this, it is necessary to address the issue of alleged defective witness statement on oath relied upon by the claimant in anchoring this suit. Counsel to the 1<sup>st</sup> defendant has argued that the claimant cannot take as her own nor rely on an affidavit she did not sign by herself but by another person. Counsel submitted that the attempt to take this witness statement on oath as her own by the claimant was perjury on the part of the claimant when she claimed that she was the deponent to a witness statement on oath attested or signed by her husband. Counsel also was of the view that this defect was a fundamental defect and goes to the root of the action in that, there is no evidence before the Court to grant the claimant’s relief. On the other hand, counsel to the claimant, while not contending the fact that it was the claimant’s husband that signed the witness statement on oath, however argued that such a defect could be glossed over by reliance on section 12(1)(b) of what he did not mention [but which I assumed to be] the National Industrial Court Act, 2006, to bypass the Evidence Act and do substantial justice instead of reliance on technicality. Counsel also submitted that the claimant must have confusingly admitted that the husband signed the witness statement on oath. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">It is a common ground by the parties and their respective counsel that the husband of the claimant signed the witness statement on oath. What is however in contention is the effect of this on the case? A good starting point is to know the essence of signature on a document. In answering this question, I found the following dictum of the Supreme Court in <b>Obidiozo & Ors. v. The State (1987) LPELR – 2170 (SC) 26, paras. B – C</b>:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:1.0in;margin-bottom:10.0pt; margin-left:.5in;text-align:justify"><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">The admission by an accused person of his signature to a confessional statement is without anything more evidence that he is the maker of the document in the sense that either he writes it or accepts or agrees with its contents.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">I will also like to make reference to: <b>Adefarasin v. Dayekh & Anor. (2006) LPELR – 7678 (CA) 31, paras. C – F. </b>The Court of Appeal observes that:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:1.0in;margin-bottom:10.0pt; margin-left:.5in;text-align:justify"><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">In the case of: Tsalibawa v. Habiba (1991) 2 NWLR (pt. 174) 461 at 480 – 481 H – A, His Lordship Ogundare, JCA (as he then was) had this to say on the importance of a signature on a document…<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:1.0in;margin-bottom:10.0pt; margin-left:.5in;text-align:justify"><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">“It is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds himself out as bound or responsible for the contents of such a document: R v. Kent Justices L.R. 8 Q.B. 305. In Morton v. Copeland 16 C.B.535, it was held that signature does not necessarily mean writing a person’s Christian and surname, but any mark which identifies it as the act of the party.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">From the foregoing cases, it is evident that the essence of signature is that it holds a person out as being responsible for the contents of a document. That is, the person is the maker of such document and vouches for the veracity of its contents. It follows that it is only a person who signed a document, being the maker that could be held responsible for its contents. Now, the witness statement on oath in the present suit was signed not by the claimant but by the claimant’s husband who was not a party to the case and was never called as a witness in the case. By being signed by the claimant’s husband, it goes without much ado that the claimant’s husband holds himself out as the maker. No explanation was offered for this bizarre event. Counsel to the claimant did no deem it fit to re-examine the claimant on this important issue: meaning that he accepted, hook, line and sinker, the outcome of the cross examination unearthing the fact of the witness statement on oath being signed, not by the purported maker, but by an outsider to it. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">Though, counsel to the claimant had cursorily stated in his address that the claimant confusingly said it was the husband that signed the witness statement on oath. But let me point out that this assertion is a mere ipsi dixit of counsel to the claimant, which verges on speculation and does not therefore qualify as an explanation or evidence on the issue at hand. Counsel who knew nothing first-hand about the stories surrounding the case is not and can never be in a position to give evidence on something not within his knowledge. Besides, it is even strange that counsel would offer this feeble excuse at all. Like I said, this is mere speculation; and a court of law cannot act on speculation but real and live evidence. I say this because counsel was not privy to what was going on the mind of the claimant when she answered a very clear question and categorically stated that it was her husband that signed the document in question and not herself. If counsel felt at that stage that the claimant was confused in giving the clear answer to a very clear question, that was the signal for him to re-examine the witness on the point to clear the alleged confusion. If this was not done, the Court is bound to take the evidence as it is and act on it. More important is the fact that it is not shown that the issue at hand comes under any of the exceptions to the requirement of signing an affidavit under section 119 of the Evidence Act.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">To me, the whole conduct goes beyond issue of mere form. It goes into the root of the case. For, if the claimant who testified before the Court is not actually the maker of the affidavit in question but another person who was not called, it follows that all what was said in the affidavit, even if admitted, amounts to hearsay evidence. In the second place, if the person who signed a document is deemed to be the maker, it means the lawful maker of the document is not before the Court for the defendant to cross-examine. Counsel must realise that witness statement on oath is the core evidence in the case and that issues of cross-examination and re-examination are the litmus tests by which the veracity of evidence-in-chief is tested and attested. These are all part of fair hearing. I think counsel to the claimant must be made to know that the requirement that a document must be signed or that signing a document signifies that the signer is the maker goes beyond affidavit and goes to the root of all documents: it signifies attestation. Thus, it is not only affidavits that signatures authenticate but also, all documents. An unsigned document is thus valueless. The Court of Appeal, in <b>Dantiye & Anor v. Kanya & Ors. (2008) LPELR – 4021 (CA) 32, paras. D – F</b>, says:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:1.0in;margin-bottom:10.0pt; margin-left:.5in;text-align:justify"><span style="font-size:14.0pt;line-height: 115%;font-family:"Times New Roman","serif"">It must be stated here that a written statement of a witness on oath is akin to an affidavit which is required by section 90(i) of the Evidence Act to be signed by the deponent or witness. Failure to sign such a document will not only render it worthless but will also render it inadmissible in evidence.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in"><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman","serif"">From the foregoing, it is evident that even if admitted, as is the case here, the witness statement on oath would be worthless, precisely because it was made or vouched by someone who is different from the claimant who purportedly has custody of the evidence therein contained or because it was not made by the primary person who had the knowledge of the facts. How and why the claimant’s husband came to be the signer of the witness statement on oath continues to baffle me. It raises the questions of maintenance and champerty. Like I have held before now, the issue of this defect goes beyond mere form to the root of the evidence in the case. This is mainly a declarative case, which must be supported by evidence from the claimant to succeed. The claimant cannot rely on the weakness in the defendant’s case thereof. More so, it involves the issue of fair hearing, for the rules relating to cross-examination and hearsay evidence are all geared towards ensuring fair hearing in a case. It should also not be forgotten that issue of substantive justice over technicality must be anchored on fair hearing and justice to all the parties in a case. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in;tab-stops:6.0in"><span style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman","serif"">Section 12 of the National Industrial Court Act, 2006 though potent in deserving cases, to override the provisions of the Evidence Act, like I have said earlier, this issue even goes beyond the Evidence Act and goes to the issue of attestation and veracity of the document in issue. I have observed equally that no explanation is offered by the claimant through re-examination to clear this very germane issue and the claimant categorically stated under cross-examination that it was the husband that signed the witness statement on oath. Is the Court expected to use section 12 of the National Industrial Court Act to change what the claimant said or to say that was not what the claimant said?! This is not the duty of the Court. Then, it follows that this is not an instance of reliance on technicality but a substantive issue and it is therefore inappropriate to rely on section 12 of the National Industrial Court Act, 2006 to escape the consequence of a very fundamental defect in the instant case, and I so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in;tab-stops:6.0in"><span style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman","serif"">The implication of my holding above is that there is no piece of evidence on which this case could be anchored, and I also so hold. The case is therefore dismissed in its entirety for lack of evidence. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-right:.5in;text-align:justify;text-indent: .5in;tab-stops:6.0in"><span style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman","serif"">I order no cost. <o:p></o:p></span></p> <p class="MsoNoSpacing" align="center" style="margin-right:.5in;text-align:center; tab-stops:409.5pt"><b><span style="font-size:14.0pt;font-family:"Times New Roman","serif""> …………………………………….<o:p></o:p></span></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><span style="font-size:14.0pt;font-family: "Times New Roman","serif"">Hon. Justice B.A. Adejumo, OFR<o:p></o:p></span></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><span style="font-size:14.0pt;font-family: "Times New Roman","serif"">President,<o:p></o:p></span></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><span style="font-size:14.0pt;font-family: "Times New Roman","serif"">National Industrial Court of Nigeria<o:p></o:p></span></b></p>