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By a complaint dated 28th September 2012, the claimant’s claims against the defendant are as follows: 1. N160,000.00 being his unpaid salary for the months of April 2012 and May 2012. 2. N250,000.00 being damages for breach of fundamental terms of his contract of employment by not giving him the requisite 3 weeks’ notice before his employment was terminated. The complaint was accompanied by a statement of facts, list of witnesses, sworn testimony of the claimant, list of documents to be relied on by the claimant and the exhibits attached. The defendant with leave of court filed a memorandum of appearance, statement of defence, defendant’s witness statement on oath, list of witness and documents exhibited. The case of the claimant is that he is an accountant living at No. 4 Etegbidi Road. That the defendant is a Public Limited Company Incorporated in Nigeria and having its corporate office at No. 2, Akin Adesola Street, Victoria Island, Lagos. That on or about 2/1/2012, he was employed by the defendant as an accountant on a monthly entitlement of N80,000.00 and assigned to Nnewi/Awka Regional Outlet, Anambra State. That on or about 31/5/2012, the defendant by e-mail message sent to the claimant terminated his appointment with effect from 1/6/2012 without giving him the requisite 3 weeks’ notice as stipulated in his contract of employment. That at the time of the termination of his employment his salaries for the months of April and May 2012 had not being paid even though he worked diligently for the defendant in the months of April and May 2012. That even after his counsel wrote a demand letter to the defendant, demanding for his unpaid salaries for the said April and May 2012 and damages, the defendant failed to pay him the said outstanding salaries. The claimant therefore claimed against the defendant as per his complaint. The claimant’s testimony on oath is on all fours with the statement of facts stated above and so need not be repeated again. The case of the defendant as per its statement of defence is that the claimant was employed as an accountant on 2/1/2012. That upon his employment the claimant was trained on the job by the defendant’s Management Accountant along with one Mr. Ernest Adedeji for two months before he was posted to Nnewi/Awka as Regional Co-ordinator while Mr. Ernest Adedeji was posted to Abuja Region. That while the claimant was under training on the job for two months i.e. January and February 2012, his salaries were paid. The defendant averred that before the claimant was posted to Nnewi/Awka as Regional Coordinator he was given his job description and how to report the region activities under his control to the Head Office in Lagos. That as the Coordinating Officer the claimant was provided with all the facilities to enhance his job performance and staff strength such as the Cashier, Store Officer, Supervisor, Manager and Internal Auditor all reporting to him with all the information he needed to perform his job effectively. That the claimant while at the region could not produce any comprehensive report expected of him in the month of March he resumed and when he does, the report was full of blunders necessitating the defendant to incur losses. The defendant further stated that in order to avert the losses the defendant sent the Management Account again to the claimant to retrain him therein the claimant advised that the cost of sending the Management Accountant put at N64,588.00 be deducted from his salaries in two installments. That the claimant was also paid for the month of March 2012. Furthermore, that after retraining the claimant could not produce report for the months of April 2012 necessitating the defendant to put his salary on hold pending when he will submit the report to justify that he had worked for the month. That when the no report syndrome continued, in the month of May 2012 the claimant was asked to come to the Head Office in Lagos to defend himself and show proof of the functions of his job over the period of April and May 2012 to justify payment of salary but he has since refused to come. The defendant continued that the refusal of the claimant to obey the instructions to come to the Head Office in Lagos was viewed by the defendant as an act of gross insubordination to a constituted authority. That subsequent upon that the defendant in May 2012 advised the claimant to move on with his life with effect from 1st June, 2012. That the claimant was also advised to handover all the defendant’s properties in his possession to the Nnewi outlet Manager Mr. Ogechi Orji this the claimant did not do. The defendant averred that it will contend at the trial that the claimant was disrespectful to it and should refund all the money expended on him for training and retraining without producing any result. That upon the receipt of the letter of demand for salary from the claimant’s solicitors, it arranged a meeting for the claimant to prove that he worked for the months he was claiming but neither the claimant nor his solicitor honoured the invitation. The defendant therefore denied in its entirety all the claimant’s claims as same are ill- conceived, frivolous and vexatious and without merit whatsoever and should be dismissed with cost. The defendant’s witness statement on oath is also on all fours with its statement of defence and so will not also be repeated again. At the trial, the claimant testified for himself as CW1. He adopted his witness statement on oath deposed to on 28th September, 2012. Under cross examination, CW1 said he started working in January 2012. He also said he was working for the company at its Lagos Head Office. He said both himself and Ernest Adedeji worked in Lagos for two months and were trained before he was posted to Nnewi and Awka. He also responded that while in Lagos his salaries were paid. That while he was in Awka his salary for March was paid. He said no reason was given for the non payment of his April salary. He denied that the management accountant was sent to train him and that the management accountant came to Awka for his routine job. He denied owing the defendant any money. He said the N64,588 was debited to him because he was informed that the production materials were over used and so I would be responsible for it, that was why the said amount was debited against him. He said that he is an accountant. That he was trained for the job and he did his work diligently and that he did his job according to the specification given to him. He said he was never queried for not given any report. That he was not requested to come to Lagos and that there was no money given to him to come to Lagos. Under re-examination, CWI said the notification of his appointment was dated 31/5/2012 and he was asked to leave on the 1st June so there was no provision for him to handover to anybody. The defendant did not call any witness as counsel to the defendant applied to close the case of the defendant as its only witness took ill and has been taken to the village and he did not know when the witness might be back. The defendant’s counsel therefore closed the case of the defendant without calling its witness. Parties were therefore ordered to file their respective final written addresses in accordance with the provisions of Order 19 Rule 13 of the NIC Rules 2007 beginning with the claimant. The claimant’s counsel filed a written address dated 7th May, 2013 and filed on the same date raised one issue for determination: (i) Whether the claimant has proved his case and therefore entitled to judgment based on his written statement on oath and the documentary evidence admitted as exhibits in the case since the defendant called no witness. The claimant’s counsel submitted that the claimant is relying on his written statement on oath of 28/9/2012 and which he adopted at the trial and on all documentary evidence he tendered and which were admitted as exhibits. Learned counsel submitted that the claimant has proved his case and therefore entitled to Judgment based on the following proven facts, which are:- (a) That the letter of employment dated 6/1/2012 and which was admitted as an exhibit established that the claimant was employed by the defendant as an Accountant on a monthly entitlement of N80,000.00 and was also entitled to 3 weeks notice before termination. (b) But that the defendant terminated the employment of the claimant on 1/6/2012 by an e-mail sent to the claimant on 31/5/2012 i.e. one day notice, which is in breach of the term of the contract as stipulated in the contract of employment which expressly requires the defendant to give the claimant 3 weeks’ notice. (c) That the claimant’s written statement on oath, the e-mail message, the letter of 28/6/2012 demand for payment of the two months salaries and even the defendants’ response on 6/7/2012 refusing to pay show clearly that the claimant was in the employment of the defendant and worked for it in the months of April 2012 and May 2012 but was not paid by the defendant. Learned counsel therefore contends that the evidence of the claimant remains uncontroverted and unchallenged as the defendant called no witness and the cross-examination did not elicit any contradiction or inconsistencies from the claimant. The claimant’s counsel also submitted that this court is entitled to believe the evidence of the claimant as true and sufficient to prove the case of the claimant relying on the case of Linus Onwuka & Anor. v R.I. Omogui (1992) 3 SCNJ 98, and Obmiami Brick & Stone (Nig.) Ltd v ACB (1992) 3 SCNJ 1. To counsel the statement of defence filed by the defendant is a mere notice of the defendant’s case it intend to present at the trial but that it is not a substitute for evidence which the defendant failed to offer at the trial. The claimant’s counsel urged the court to grant the claimants all his claims. The defendant’s final written address is dated 15th May, 2013 and filed on 17/5/2013. Learned Counsel for the defendant raised two issues for determination i.e.: (1) Whether the claimant’s statement on oath of eight paragraphs dated 28/09/2012 being condition precedent of initiating this action before this court is competent having failed to comply with the clear provisions of Section 13 and the 1st schedule of the Oath Act Cap 333 LFN 1990. (2) If the answer to issue one is in the negative, whether the trial predicated on an incompetent statement on oath is not invalid in law in view of clear provisions of S.13 and 1st schedule of the Oaths Act, Cap 333 LFN 1990. Arguing the first issue, the defendant’s counsel began submission by quoting Section 13 of the Oaths Act Cap 333 LFN 1990 which states as follows: “It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by this Act to administer an oath, take and receive the declaration of any person voluntarily making the same before him in the form set out in First Schedule to this Act.” Learned Counsel submitted that the claimant’s witness statement on oath is not a valid statement on oath or affidavit evidence without the strict compliance with the clear provisions of the Oaths Act. That any such affidavit without strict compliance with the Oath Act, the Oath Act being a statutory provision, is a worthless document and therefore in gross conflict with the provisions of the statutes, citing the following cases, Obumeke v. Sylvester [2010] ALL FWLR (pt. 506) 1945 CA, New Nigeria Bank Plc v. IBW Enterprises Nig Ltd [1998] 6 NWLR (pt. 554) p. 454, paras E – G, Lawal-Osula v. UBA Plc [2003] 5 NWLR (pt. 813) pg. 388 para. G. The defendant counsel further submitted that in the instant case, it is patently clear from the claimant’s statement on oath of eight paragraphs sworn to on 28/09/2012 before the Commissioner for Oath Mrs. C.A. Duru does not comply with the 1st schedule of the Oaths Act and therefore incompetent. It is therefore inadmissible and cannot be held to be relevant because to counsel, such document is in the eyes of the law worthless and irrelevant and as such this court lacks jurisdiction to entertain the suit which is predicated on inadmissible statement on oath because to do otherwise will be exercise in futility. Citing the cases of Gwabro v. Gwabro [1984] 4 NWLR (pt. 544) 60 and Oseni v. Dawodu [1994] 4 NWLR (pt. 339) at 404. Learned Counsel therefore submitted on this issue that the claimant’s statement on oath is a condition precedent for commencing this action in the first place. That since there is no valid claimant statement on oath on which a valid trial can stand. And urged this court to so hold. On issue two, the defendant’s counsel submitted that arising from his argument in issue one that the claimant’s witness statement on oath has no leg to stand in law and so all the arguments and trial conducted in reliance on the said statement on oath is an exercise in futility being one predicated on the incompetent claimant statement on oath. Consequently the exercise of jurisdiction of this court in relation to an action before it, to counsel depends on certain conditions which Bairamian, F.J (as he then was) in Madukolu & Ors v. Nkemdilim [1962] 2 SCNLR 341. The defendant’s counsel further submitted that one of the conditions in the above case that can cloth a court with jurisdiction is that the processes must be by due process, and that due process entails that all the conditions precedent stipulated by statutes and regulations must be fulfilled before the court can assume jurisdiction. That in this case the claimant’s statement on oath having not been initiated by due process and have contravened the clear provision of the 1st schedule of the Oaths Act, this court lacks the jurisdiction to entertain the suit and urged this court to so hold and dismiss this suit in its entirety. Counsel cited the cases of UAC v. Macfoy [1961] 3 NWLR 1405 at p. 1410 and Adejumo v. Ayatuche [1989] 3 NWLR pt. 110 at p. 451. Counsel to the defendant therefore urged this court to reject and expunge the said statement on oaths of the claimant as it cannot support the case of the claimant being incurably bad in law. Counsel then urged this court to dismiss this suit in its entirety for want of jurisdiction. In reply on points of law, the claimant’s counsel submitted that this court discountenance the submission of the defendant’s counsel on the issues he raised on the following grounds. Firstly that the requirement of a written statement on oath of a witness is a matter of rule of practice and procedure of this court. That Order 5 Rule 1 of the NIC Rules 2007 states that failure to comply with any of the rules of this court may be treated as an irregularity and that Order 5 Rule 2 provides that an application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The claimant’s counsel therefore submitted that the defendant’s counsel cannot be allowed to raise the issue of no or invalid statement on oath being a procedural issue since he did not raise it within a reasonable time and before he took fresh step in the case after becoming aware of the irregularity. That the defendant’s counsel became aware of it upon service on him of the Originating Processes with the statement on oath attached and yet he filed the defendant’s processes and participated in the trial, and so it is too late for him to raise the issue now. Learned Counsel also submitted that it is erroneous and a misconception to argue that the issue of statement on oath is a condition precedent to initiating an action. That it is simply a procedural requirement to be complied with upon filing the Originating Processes of a case and so it is not a matter that goes to the jurisdiction of the court. The claimant’s also responded that it is misconceived in law and in fact the defendant’s counsel’s submission because only declarations, and not oaths are required to have the words to the 1st schedule of the Oaths Act attached to them. That declarations can be made under Section 10 (2) of the Oaths Act, Laws of the Federation, 2004, in cases where an oath is or has been abolished by an enactment or under Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004 where a person voluntarily makes a declaration it is not mandatory for an oath which is what the claimant made in this instant case. Also that the sworn statement of the claimant was admitted in evidence while he was in the witness box after an oath was administered on him, so it is a statement admitted in evidence under oath apart from the attestation of the Commissioner for Oaths, and so the cases cited by the defendant’s counsel are inapplicable and so distinguishable from this case. Thirdly the claimant’s counsel responded that Section 113 of the Evidence Act 2011 provides that a court may permit an affidavit to be used notwithstanding that it is defective in form, if the court is satisfied tht it has been sworn before a person duly authorized. Also that even Section 4 (2) (c) of the Oaths Act, 2004 states that no irregularity in the form in which an oath or affirmation is administered or taken shall render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. The claimant’s counsel also submitted that the requirement of filing sworn statement of a witness is a rule of practice and procedure formulated to facilitate speedy trial and the absence of words omitted in a sworn statement does not in any way impede speedy trial. Learned Counsel therefore urged this court to discountenance the submission of the defendant’s counsel for the reasons adduced above and give judgment in favour of the claimant as per his claims. I have carefully considered the submissions of both counsel, the processes filed and the evidence both oral and documentary. In my view the issues for determination in this case are: (1) Whether the claimant’s witness statement on oath before this court is competent. (2) Whether the claimant has proved his case and therefore entitled to Judgment. On the first issue, the defendant counsel had argued that the court should dismiss this suit in its entirety for lack of jurisdiction because the claimant’s witness statement on oath did not comply with the provisions of the Oaths Act, Cap 333 LFN 1990 and therefore incompetent. That the incompetency of the witness statement on oath makes the entire processes filed by the claimant to be incompetent and so deprive this court of the jurisdiction to hear this suit. The claimant’s counsel forcefully urged the court to reject and expunge the said statement on oath of the claimant because the proceeding founded on it is void since one cannot put something on nothing and expect it to stand. This is the totality of the defendant’s submissions in its final written addresses as the defendant did not advance any argument on the merit of the case. The claimant on the other hand had responded that the requirement of a written statement on oath of a witness is not an issue of substantive law but that of procedure and should be raised at the earliest opportunity that at best it is an issue of irregularity which cannot vitiate the entire proceedings. I agree with the submissions of the claimant’s counsel that the requirement of a written statement on oath of a witness is a matter of rule of practice and procedure of this court. The practice and procedure of this court is regulated by the National Industrial Court Rules 2007 as well as the National Industrial Court of Nigeria Practice Direction, 2012. Order 5 rule (1) of the National Industrial Court Rules 2007 provides as follows: (1) Failure to comply with any of these rules may be treated as an irregularity and the court may give any direction as it thinks fit. Rule 2 (1) also provides that – An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. Based on the provisions of Order 1 of NIC Rules 2007, this court has the discretion to decide whether or not to treat any non-compliance with the provisions of this rules and the practice direction as an irregularity. In that regards I therefore hold that the non-compliance complained of by the defendant is an irregularity which will not vitiate this proceedings. The claimant’s witness statement on oath is therefore not incompetent and I so hold. Moreover the defendant has failed to comply with the provisions of rule 2 (1) which is to the effect that an objection as to procedural irregularity ought to have been raised within a reasonable time before the party complaining takes steps in the proceedings after becoming aware of the irregularity. In the case at hand the said witness statement on oath complained of was served on the defendant when this suit was filed along with other processes in this suit. Yet the defendant who had ample opportunity to have raised the issue of non-compliance by way of an objection did not. Instead the defendant filed all its defence processes and participated in the trial without raising it until the stage of filling final written addresses. In my humble opinion, it is too late in the day for the defendant to complain now. This amounts to an ambush which is not allowed in litigation. Also the defendant has not shown that it was misled as a result of the irregularity. Neither has it shown that the non-compliance has resulted in a miscarriage of justice. In Eronini v. Eronini [2013] 14 NWLR (pt. 1373) p. 32, the Court of Appeal held: “The appropriate time at which a party to a proceeding should raise an objection to the competence of a suit based on procedural irregularity is at the time when the irregularity arises. If a party sleeps on that right and allows that proceedings to continue on the irregularity to finality, then the party cannot be heard to complain at the concluding stage of the proceedings or an appeal thereafter”. It is trite law that the only exception to the general rule stated eloquently above by the Court of Appeal is where the complainant can show that he had suffered a miscarriage of justice by reason of the procedural irregularity. In the case at hand, the defendant had not led evidence to show that it suffered miscarriage of justice as a result of the non-compliance with the rules of this court. I therefore resolved this issue in favour of the claimant, see Sande v. Abdullahi [1989] 4 NWLR (pt. 116) 387, Noibi v. Fikolati [1987] 1 NWLR (pt. 52) 619, Ezomo v. Oyakhire [1985] 1 NWLR (pt. 2) 195. Consequently I hold that the defendant’s submission on this ground is therefore untenable on the strength of the authorities referred to in this Judgment. In the circumstance I am of the view that the claimant’s witness statement on oath and all other processes are valid before this court, I so hold. Having held that the claimant’s witness statement on oath is valid, the next issue is to determine whether the claimant has proved his case. In this regards the claimant testified for himself and was cross examined by the defendant’s counsel. The claimant also tendered documentary evidence to support his claim against the defendant. The totality of his submission is that he be paid his unpaid salaries for the months of April and May 2012 at the N80,000.00 per month along with damages for breach of his contract and for mental distress and emotional trauma. As I stated earlier, the defendant did not call its witness to testify in defence of its case, and worst still, the defendant’s final written address did not in any way address the merit of this case. The defendant’s final address did not address the defendant’s defence in this case rather the defendant’s counsel spent his whole energy on challenging the competence of the claimant’s witness statement on oath and did not at all address the issues in this case on merit. In other words the defendant’s written address did not say a word on its defence of the issues or claims by the claimant. The resultant effect of this is that the defendant has no defence to this suit. This is more so that the defendant did not call its witness to testify and be cross examined. I am of the opinion that the evidence of the claimant remains uncontradicted and unchallenged as the defendant offered no defence to contradict the case of the claimant. I therefore hold that the claimant has proved his case as regards the non-payment of his outstanding salaries for the months of April and May 2012. A worker the Holy Books say is entitled to his wages. It is therefore inhuman to refuse to pay salaries to a worker after he has shown that he or she has worked only to turn around and terminate the said worker in order to deny him of his outstanding salaries, even when he has to face the harsh realities of the loss of his job. This court will surely not condone such indignation and injustice on a fellow human being. There should be human feelings in the way fellow human beings should be treated in a fair and just society so as to guarantee peace, security and social justice. I say no more. On the issue of notice, I have perused the claimant’s appointment letter which is the contract of employment binding on the parties. The said contract of employment provides for 3 weeks notice by either of the parties intending to terminate the contract. I have also perused the letter of disengagement or termination of the claimant via email which is captioned “Notification” dated 31 May, 2012 which termination took effect on 1st June, 2012. This shows that the said termination of the claimant’s appointment was without notice. This is contrary to the terms of his contract of employment. I therefore hold that the claimant is entitled to three weeks pay in lieu of termination. This should be calculated based on the claimant’s monthly salary and same be paid to him with immediate effect. The issue of damages for mental and emotional distress was not proved by the claimant and is hereby refused. On the whole the claimant’s claim succeeds and for the avoidance of doubt, I hold and order as follows: (1) The defendant shall pay to the claimant N160,000.00 being his two months outstanding salaries for the months of April and May 2012 at the rate of N80,000.00 per month. (2) The defendant shall also pay to the claimant 3 weeks’ notice in lieu of termination which should be calculated from his monthly salary. (3) The defendant shall pay N50,000.00 cost to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge