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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: OCTOBER 9, 2014 SUIT NO: NICN/LA/78/2013 BETWEEN Yahaya Okai - Claimant AND 1. Ankor Pointe Integrated 2. Timi Aladetimi - Defendants REPRESENTATION C.O. Ogbonna for the Claimant. Alfred Akinjo with U.H. Amugo (Miss) for the Defendants. JUDGMENT The Claimant in this case approached this Court on 19/2/13 for the following reliefs against the Defendants: 1. The sum of N6,993,000.00 (Six Million, Nine Hundred and Ninety Three Thousand Naira) only, being amount due the Claimant on 2% commission from the Defendants. 2. Interest on the amount found due to the Claimant at the rate of 21% per annum from December 17, 2011 until final payment. 3. Cost of this action. Claimant's General Form of Complaint was accompanied by Statement of Facts, Witness written statement on oath, List of witness, List and copies of documents to be relied on at trial. The 1st and 2nd Defendants filed a joint Statement of Defence and Counter-claim dated 3rd of December 2013 and the Claimant subsequently filed Reply and Defence to Counter-Claim dated 9th December 2013. The 1st Defendant Counter-claimed against the Claimant for the following: i. The return of the laptop in a good and working condition and the associated company data therein which was given to the Claimant on his employment with the 1st Defendant. OR Alternatively, the sum of N150,000.00 being the current market value of the laptop in the event that the Claimant cannot produce the laptop. ii. An Injunction restraining the Claimant/Defendant to Counter-claim from divulging or using or exploring in any means whatsoever the 1st Defendant/Counter-Claimant company information on the laptop. The case for the Claimant is that the 1st Defendant was at all material times the employer of the Claimant (See Exhibit D1 and 2/YO1) until the Claimant was placed on Forlough employment via the 1st Defendant’s letter dated 16th December 2011 (See Exhibit YO2) effective from the 19th of December 2011; that the Claimant immediately instituted an action against the 1st and 2nd Defendants at the High Court of Lagos State in suit No. LD/1355/2012 for redress; that the Claimant subsequently discontinued the suit at the High Court of Lagos State in view of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 that gave exclusive jurisdiction to the National Industrial Court on labour matters. The Claimant thereafter filed this suit as constituted in this Honourable Court. It is the Claimant’s case that he is entitled to a commission oscillating between 2% and 5% for jobs he attracted to the 1st Defendant during his employment with the 1st Defendant and that the payment of this commission was agreed upon orally between himself and the 2nd Defendant herein after he has accepted the letter of employment and its terms dated the 7th of January 2009. On the 18th of December 2013, trial opened and the Claimant – Mr. Yahaya Okai gave evidence. He adopted his Written Statement on Oath dated 19th February 2013 and tendered four documents that were admitted and marked Exhibits YO1, YO2, YO3 and YO4 in support of his case. Under cross examination, witness testified that he was employed at managerial level by the Defendant because of his qualifications and skills; that all the terms of his employment were stated in his letter of offer of employment - Exh. YO1; that he accepted the terms; that there were agreements on commission on job secured for the Company but that there was no agreement on the percentage; that Exh. YO1 and its contents were meant to sustain him regularly and that he adhered strictly to the Company's conditions of employment. The Claimant was not re-examined and he closed his case accordingly. The case for the Defendants is to some extent in tandem with the case as put forward by the Claimant safe in only on respect. It was the case for the Defendants that the 2ndDefendant who is the Chief Executive Officer of the 1st Defendant did not orally agree with the Claimant on behalf of the 1st Defendant to pay him commission for jobs at any time whatsoever. Rather the Defendants averred that the terms of employment of the claimant and his entitlements were clearly stated in his letter of employment dated the 7th of January 2009. On the 3rd of March 2014, the Defendants opened their case by calling the 2nd Defendant - Timi Aladetimi the Chief Executive Officer of the 1st Defendant as their witness. He adopted his Written Statement on Oath dated 3rd of December 2013 and tendered the Claimant’s employment letter dated the 7th of January 2009 which was admitted and marked Exhibit D1. Under cross examination, witness testified that at the time of issuing termination letter to claimant, Defendants had reviewed his performance; that since 16/12/11 when claimant was suspended he has not been recalled; that the policy is to review the situation of each employee to see whether they would be recalled; that he sought to review the Claimant's entitlement, salaries and outstanding benefits and that the alleged commission was not part of the proposed reviews. The matter was then adjourned for adoption of Final Written Addresses. This Final Written Address is written on behalf of the Defendants. Defendants final written address was filed on 27/3/14. In it learned Counsel raised three main issues for determination as follows: 1. Whether the 2nd Defendant who was at all material times the CEO of the 1st Defendant ought to have been made a Defendant in this action. 2. Whether the Claimant was able to prove from the totality of his evidence before this Honourable Court that there was any agreement either orally or in writing which entitled him to the commission claimed for jobs he attracted to the 1st Defendant during his employment with the 1st Defendant. 3. Whether the 1st Defendant is entitled to its Counter-claim. Arguing issue 1, learned Counsel pointed out that 1st Defendant is a limited liability Company and registered under the laws of Nigeria while the 2nd Defendant was at all material time the Managing Director/Chief Executive of the 1st Defendant. Counsel submitted that 2nd Defendant is not personally answerable for alleged wrongful acts against the Claimant and that there is no legal nexus between the claim and the conduct of the 2nd Defendant, citing Rinco Construction Co. v. Vepee Industries Limited (2005)9 NWLR (Pt. 929) 85. Counsel submitted that from the evidence adduced by the Claimant he was employed by the 1st Defendant and not the 2nd and his employment was also terminated by the 1st Defendant and not the 2nd; and that 2nd Defendant at all material time acted as the managing Director/Chief Executive Officer of the 1st Defendant. Counsel submitted that 2nd Defendant was not liable for his act in that capacity citing Palmer's Company Law, 24th Edition at p. 922, Company Law and Practice in Nigeria, 5th Edition by Dr. Olakunle Orojo, FBN Plc v. Aboko (2007)1 NWLR (Pt. 1014) 129, Bello v. INEC (2010)8 NWLR (Pt. 1196) 342. Learned Counsel urged the Court to hold that the 2nd Defendant who is a Director of the 1st Defendant acted in the capacity of an agent of the 1st Defendant and cannot be held liable for the actions or inaction of the 1st Defendant. On issue 2, learned Counsel stated that it was a fact that Claimant became an employee of the 1st Defendant by virtue of letter of employment dated 7/1/09 - Exh. D1 and that the said letter clearly stated the terms of the employment; that Claimant was never employed as ''Consultant Employee'' but rather employed as a full time employee to occupy the position of a ''Business Development Manager''. Counsel submitted that throughout the trial, Claimant failed to show from his letter of employment or any other document that there was any agreement as to payment of commission to him for jobs secured on behalf of the 1st Defendant. Counsel submitted that he who asserts must prove, citing Ohochukwu v. A.G. Rivers State & Ors (2012) LPELR-7849 (SC) and that it is a basic principle of law that where an agreement between parties has been reduced into writing, it is the business of the court to interpret it and give meaning to its ordinary and grammatical meaning and not to re-write the contract of agreement for the parties, relying on Akubuiro v. Mobil Oil (Nig.) Plc (2012)14 NWLR (Pt. 1259) 417 at 470. Counsel further noted inconsistencies in the testimony of Claimant vis-a-vis his pleadings. Counsel pointed out that in his written deposition on oath claimant deposed that he orally agreed with 2nd Defendant that he would be paid a commission oscillating between 2% and 5% for job secured on behalf of the 1st Defendant whereas under cross examination he admitted that they did not agree on percentage to sign off. Learned Counsel submitted that CW1 was not a credible witness, citing Nnajofo v. Ukonu (1988)4 NWLR (Pt. 36) 505 at 523, and urged the court to discountenance his evidence. Counsel urged the court to hold that oral evidence of the Claimant would not be allowed to contradict, alter, add to or vary the contents of Exh. YO1 and that the 2nd Defendant did not agree on behalf of the 1st Defendant to pay any commission to the claimant for job attracted to the 1st Defendant by the Claimant. Regarding issue 3, Counsel urged the court to hold that Claimant had admitted that the 1st Defendant handed a Laptop computer to him to assist him in the discharge of his duties and has failed and/or refused to return same after leaving the services of the 1st Defendant. Counsel further urged the Court to hold that the Claimant's defence to the 1st Defendant's Counter claim that the Laptop was given to him unconditionally is an afterthought and not tenable and that facts admitted need no further proof citing Eresia-Eke v. Orikoha (2010)8 NWLR (Pt. 1197) 421 at 444. Finally learned Counsel urged the Court to dismiss the claims of the Claimant and grant the counter claim of the Defendants. Claimant's final written address was dated 29/4/14 and filed 30/4/14. In it, learned Counsel set down three issues for determination as follows: 1. Whether having regard to the pleadings and evidence in this matter, the 2nd Defendant is not a necessary and proper party in the just, effectual and complete determination of the issues in dispute between the parties. 2. Whether from the circumstances of this case, it has been established that there was a contract agreement between the Claimant on one hand and 2nd Defendant as the directing mind of the 1st Defendant for the payment of commission for jobs attracted to the 1st Defendant Company. 3. Whether the 1st Defendant is entitled to its counter claim. Arguing issue 1, learned Counsel pointed out that Claimant had stated in his pleadings and evidence that pursuant to paragraph 4 of Exh. YO1, that further discussions did in fact hold between himself and the 1st Defendant through the 2nd Defendant as its Managing Director and Chief Executive Officer, alter ego, moving spirit and directing mind; that 1st Defendant is an abstraction and can only act through its principal officers and in this case the 2nd Defendant, and is contractually bound by such action and cannot turn round now to seek to distance himself from any contractual liability. Counsel submitted that in deciding whether 2nd Defendant is contractually liable in an oral agreement or contract as pleaded by the Claimant, 2nd Defendant is in fact a necessary party in order that he may be bound by the result and pronouncement made by the Court thereto. Counsel relied on Peenok Investment Limited v. Hotel Presidential Limited (1983)4 NCLR 122 and Bebeji Oil & Allied Prod. Limited v. Pancosta Limited (2007)31 WRN 163; that the burden of proving that the 2nd Defendant is not the directing mind and moving spirit of the 1st Defendant is that of the 2nd Defendant, citing Tanksale v. Rubec Medical Centre (2013)12 NWLR (Pt. 1369) 548 and that there is nothing before the Court indicating that the 2nd Defendant either expressly or impliedly negative his liability in the contract with the Claimant. Counsel urged the Court to resolve this issue in favour of the Claimant. Respecting issue 2, Counsel reiterated the fact that paragraph 4 of Exh. YO1 did in fact state that further conditions of service will be discussed with the Claimant. Counsel submitted that the law is trite that where words of a contract agreement or document are clear, the operative words in it should be given their simple and ordinary meaning, citing UBN Ltd v. Sax (Nig.) Limited (1994)8 NWLR (Pt. 361) 150. According to Counsel, claimant's claim is not in respect of outstanding salaries, benefits and emoluments because same have been paid but rather the claim is respecting the unpaid commissions. According to learned Counsel, DW1 is not a witness of truth his evidence being an afterthought to evade his contractual liability; that 2nd Defendant never denied the claim for payment of commission nor did he deny the fact that such a contract existed between himself and the 1st Defendant on one hand and the Claimant which ought to be natural spontaneous reaction if there was never such a contract. Counsel submitted that the evidence of DW1 could not be trusted, citing C & C Construction Co. Limited v. Okhai (2003)12 SC (Pt. 1) 133. Learned Counsel urged the Court to discountenance the evidence of DW1 accordingly. On issue 3, Counsel pointed out that there were mere averments in the pleadings of the Counterclaimant as to the counter claim and that there was no material evidence before the court in proof of the fact that a Laptop was given to the Claimant as a condition of his employment and that the said Laptop being specifically designated a company property was to be returned to the 1st Defendant/Counter claimant upon cessation of employment of the Claimant. Counsel submitted that the burden of proof of the counterclaim has not been discharged by the Counter claimant. Counsel relied on Olonade v. Sowemimo (2006)2 NWLR (Pt. 963) 30 and Sections 131 & 132, Evidence Act, 2011. Finally, learned Counsel urged the Court to enter judgment in favour of the Claimant and dismiss the counterclaim of the 1st Defendant/Counterclaimant. Defendants' Reply on points of law was dated 14/5/14 and filed 21/5/14. I read and understood the contents of the 5-page document. I find nothing new in same that warrants inclusion in this judgment. I have read all the processes filed in this case, the pleadings, the final written addresses as well as the reply on points of law by the Defendants. I have also reviewed the evidence adduced before me and exhibits tendered and admitted in addition to the opportunity to watch and assess the demeanor of the witnesses who testified in this case. Having done so, l have come to the conclusion that the determination of two main issues will resolve this case. These issues are as follows: 1. Whether the Claimant in this case is entitled to the reliefs sought; and 2. Whether the 1st Defendant is entitled to the counterclaim sought against the Claimant. The first claim of the Claimant is for the sum of =N=6,993,000.00 only being amount due to Claimant on 2% commissions from the Defendants. There is consensus on the existence of employer/employee relationship between the parties as evidenced by Exh. YO1 and Exh. D1.That exhibit contains the terms of the contract of employment between the parties. I have read the said exhibit with maximum understanding. There is no mention of any commission payable to the Claimant stated therein. There is also no mention of any percentage of whatever sum as commissions payable. That document, l dare say, is the basis of contractual relationship between the parties. That document is clear and unambiguous. The duty of the Court in a situation as this is to give effect to agreement voluntarily entered into by the parties baring any illegality or other vitiating elements. It is not for the Court re-write for parties their contract. The basis of the Claimant's claim for commission is an oral agreement allegedly reached between Claimant and 2nd Defendant. Learned Counsel has drawn the attention of the Court to paragraph 4 of Exh. YO1 as supporting the existence of the oral agreement on payable commission. Paragraph 4 of Exh.Y O1 states thus- ''You are required to adhere strictly to the company conditions of employment, which will be discussed and made available to you. You are required to give the company four weeks notice, if you choose to terminate your employment with Ankor Pointe. The company at its discretion may choose to waive the notice period''. The submission by learned Counsel that the above paragraph supports the alleged oral agreement between the Claimant and 2nd Defendant acting on behalf of 1st Defendant is far from being correct. It seems that the learned Counsel for the Claimant would rather import words into the above paragraph 4 of Exh. YO1 so as to suit his case and the claim of his client. In paragraph 6 of his Statement of Claim, learned Counsel stated: 'That it was a term explicit in paragraph 4 of the said Offer Letter that further conditions of employment will be subsequently discussed and availed the Claimant''. The truth of the matter as could be seen from the quoted paragraph of Exh. YO1 is that it was never stated therein that further conditions of employment will be subsequently discussed. At least the word further was not used in the said paragraph. It appears to me and l dare say it is appropriate to state that the confusion as to the entitlement of the claimant on the basis of the alleged oral agreement was caused by his Counsel importing the word further into paragraph 6 of Exh. YO1. The phrase used in that paragraph is ''which will be discussed and made available to you''. Even if the submission of Counsel were to be correct, the phrase ''to be made available to you'' presupposes reduction of the said discussion in to writing and given to the Claimant. Again, there is no evidence of such reduction into writing before me. Claimant tendered none. Probably because there was none available to tender. The law is trite and well established that oral or parole evidence is not allowed to vary, add to or alter the content of a document. See Akubuiro v. Mobil Oil Plc (2012)14 NWLR (Pt. 1319) 42. Secondly, while under cross examination on 18/12/13, Claimant as CW1 stated as follows: ''We agreed on commission on job secured for the Company but did not agree on the percentage''. Again in Exh. YO3, an electronic mail sent by the Claimant to 2nd Defendant, the latter had written that- ''You incidentally reminded me of our inability to agree on a percentage and sign off. This l admit was true and as such no figure in percentage was agreed upon''. Yet in his claim, Claimant claimed 2% commission from the Defendant. Again, in paragraph 7 of his Statement of Claim, leaned Counsel had averred, inter alia, that - ''... that an amount as commission, oscillating between 2% and 5% but not below 2% was to be paid the Claimant additionally by the 1st Defendant for jobs attracted to the 1st Defendant through the Claimant's effort, on a consultancy basis, as further job motivation''. These averments are certainly not in tandem with the contents of Exh. YO3 particularly paragraph 4 of same as well as the testimony of Claimant under cross examination. No Court can, on the basis of the available evidence in this case, find in favour of the Claimant. This Court also cannot and does not find in favour of the Claimant. I therefore find and hold that the Claimant has failed to prove his claim 1 and hence not entitled to judgment in his favour. Claims 2 and 3 are predicated on claim 1. They are for interest on the amount found due to Claimant at the rate of 21% per annum from December 17, 2011 until final payment, and cost of this action respectively. These two reliefs cannot stand on their own. They are indeed structures built on claim 1 as foundation. If claim 1 collapses as it has done in this case, then these two reliefs must equally collapse like park of cards. For, it is trite that a house built on a weak ground foundation will collapse. The legendary Lord Denning expressed the same point more succinctly in UAC v. MacFoy (1962) AC 142 when his lordship stated that you cannot put something on nothing and expect it to stay there. It will collapse. l thus find and hold that claim 1 having failed, claims 2 and 3 which owe their existence to claim 1 must also fail. Issue 2 is as to whether the 1st Defendant is entitled to the counterclaim sought. The counterclaims are two-fold. The first which is in the alternative is for the return of the laptop in a good and working condition and the associated company data therein which was given to the Claimant on his appointment with the 1st Defendant. The alternative to this as sought by the 1st Defendant is the sum of =N=150,000.00 being the current market value of the laptop in the event that the Claimant cannot produce the laptop. In paragraph 22 of their Statement of Defence and Defence to Counterclaim, the 1st Defendant averred that 'when the Claimant left its employment, he failed, refused and or neglected to hand over the laptop and associated company data therein given to him'. Aside from this averment, there is no evidence before me to back up the assertion of the 1st Defendant/Counterclaimant. The law is trite that averments in pleadings are not evidence and cannot be so construed. They are merely to set out the evidence that a party is likely to present so that the other side would not be caught unaware or unprepared. They must be proved be admissible and credible evidence, except admitted by the other party. See Nigerian Advertising Services Limited & Anor. v. United Bank for Africa Plc & Anor. (2005) LPELR-2009 (SC); (2005)14 NWLR (Pt. 945) 421. However, in paragraph 4.40 of his final written address, learned Counsel for the Defendants urged the Court to hold ''... that the Claimant had admitted that the 1st Defendant handed a laptop computer to him to assist in the discharge of his duties and he failed to and or refused to return same after leaving the services of the 1st Defendant''. Now, was there an admission along the line as put forward by learned Counsel to the Defendants? The answer to that question must certainly be in the negative. The defence to counterclaim is very clear and unambiguous. Paragraph 5(3) of Claimant's Reply to 1st and 2nd Defendants Statement of Defence and Defence to Counter claim states thus - 3. That in sympathy with the Claimant whose laptop broke down as a result of usage in the performance of his contractual relationship with the 1st Defendant/Counter- Claimant the 2nd Defendant replaced the laptop for the Claimant UNCONDITIONALLY and NOT as a property of 1st Defendant/Counter- Claimant'. I find this averment not as an admission by the Claimant that he has in his custody a laptop belonging to the 1st Defendant/Counter Claimant. The content of that averment is clear and calls for no aid of interpretation. The law is settled that to be able to decide whether there was an admission in the pleadings of the respondents which could have entitled the appellants to the judgment of the Court, one must look at the respondent's pleadings as a whole and not just to consider each paragraph in isolation. See Titiloye & Ors. v. Olupo & Ors (1991) LPELR-3250 (SC). When the whole of the 5 paragraphs of the Claimant's Reply to 1st and 2nd Defendants statement of defence and defence to counter claim are read together, it is apparent that there was no admission in the line as suggested by the learned Counsel for the Defendants. If at all any of the Defendants is to make a counter claim on the issue of Laptop, the 2nd Defendant may be the person rather than the 1st Defendant. The first relief under counter claim is thus refused same not having been proved. The second relief under counter claim is for ''an injunction restraining the Claimant/Defendant to Counter claim from divulging or using or exploring in any means whatsoever the 1st Defendant/Counter-claimant company information on the laptop''. The first relief sought under counter claim having failed, this relief must also fail. There is no proof of the 1st Defendant's ownership of or right to the said Laptop. That issue has been disposed off. There is also no proof of the entitlement of the 1st Defendant/Counter-Claimant to the content of the laptop which was given, according to Claimant, to him by the 2nd Defendant unconditionally. I note that that point was not in any way contradicted by the Defendants in course of hearing this case. I therefore find and hold that the injunctive relief sought cannot be granted by this Court. It is refused accordingly. Finally and for the avoidance of doubt, the claims of the Claimant are dismissed as lacking in merit. The counter claims by the 1st Defendant/Counter Claimant are also dismissed for the reasons as stated in this judgment. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J.D. Peters Presiding Judge