CORAM

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JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

JUSTICE JAMES SHEHU ABIRIYI

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PARTIES

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TAYLEK DRUGS COMPANY LTD

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PETER ONANKPA

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant as a Medical Representative under a written contract employed the Respondent, a Pharmacist, which was subject to confirmation after probation for a period of nine months. The letter of appointment stated the terms of employment in respect of remuneration, allowances and termination of the employment. In respect of the latter, it stated that either party could terminate the employment during the period of probation by giving two weeks’ notice or payment in lieu of notice. For reasons of poor performance, the Appellant declined to confirm the appointment of the Respondent after the expiration of nine months stipulated as agreed in the contract of employment, and instead wrote two letters to him stating her reasons for not doing so. Despite this, the Respondent continued to work with the Appellant and even received an upward review of his salary and allowances. Sometime after his confirmation had been deferred twice, the Respondent wrote a letter to the Appellant explaining his non-performance and asked for more time to improve. However, the Appellant failed to pay the Respondent his salaries for a period of seven months and so the Respondent handed in his resignation. The Appellant however refused to accept his resignation, alleging that the Respondent had misappropriated the funds of the Appellant. Consequently, the Respondent filed a suit before the National Industrial Court, Makurdi Division sitting at Makurdi claiming from the Appellant inter alia, his salary from April to November 2014. The Appellant denied the claim and counterclaimed for the sums of money, which she alleged was misappropriated by the Respondent. The Appellant in turn denied the counterclaim. At the end of the trial, the lower Court in its Judgment found in favour of the claim of the Respondent and dismissed the Appellant’s counterclaim. Aggrieved by this decision, the Appellant appealed against same by filing a Notice of Appeal complaining on five grounds.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the trial Court was right in holding that the Respondent’s employment was deemed to have been confirmed after 9 months from the date of his employment. Whether the Respondent is deemed to have accepted Appellant’s letter of deferment or has waived his right by not rejecting the letters of postponement of his confirmation. Whether the trial Court was right to have awarded the Respondent his annual salary when there is evidence that he received his salary up to the date he resigned his appointment. Whether the trial Court was right in dismissing the Appellant’s counterclaim.

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RATIONES DECIDENDI

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“PROBATION” AND “PROBATIONARY EMPLOYEE” – DEFINITION OF THE TERM “PROBATION” AND “PROBATIONARY EMPLOYEE”

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I agree with the definition of the word “probation” as given by the learned trial Judge in her Judgment as well as the definition given by the Appellant in the submissions in her Brief of argument. The International Student’s Edition of the Oxford Advanced Learner’s Dictionary at page 1167 defines probation inter alia as:
2. a time of training and testing when you start a new job to see if you are suitable for the work.
Similarly, the Tenth Edition of the Black’s Law Dictionary at page 639 says of a “probationary employee” thus:
“A recently hired employee whose ability and performance are being evaluated during a trial period of employment.”
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DOCTRINE OF ESTOPPEL BY CONDUCT – PURPORT OF THE DOCTRINE OF ESTOPPEL BY CONDUCT

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“The law as settled based on the doctrine of Estoppel and incorporated into Section 169 of the Evidence Act, 2011 is that:
“When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”

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ESTOPPEL BY CONDUCT – PRINCIPLE OF ESTOPPEL BY CONDUCT

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Indeed, his Lordship, Mustapha Akanbi, JCA (as he then was, and of blessed memory) in the case of OAU V Onabanjo (supra) stated as follows in the lead Judgment of the Court at page 566 of the Report:
It is evident from the above that if at the end of three years no re-appointment is offered and accepted, that will normally be the end of the appointment. But it would appear for all practical purposes in this case that the appellant related with the respondent as if the contract between them was still subsisting and had not lapsed. In those circumstances, can it be said that the respondent had not been led into believing that he had been re-appointed or that his appointment had not been confirmed?
Unfortunately, there appears to be no clear cut provision in the conditions of appointment for the situation that had developed in this case. However, I repeat what I said before that, while the probationary appointment subsisted or soon after it came to an end notice could have been given. If that had been done, the appellant would have known his position, would perhaps have decided to pack out bag and baggage and probably take some positive steps to find alternative employment elsewhere and not be left high and dry. Allowing him to continue to work and earn his salary, gave the impression that he was in for another term of office as an officer who has satisfactorily completed his probationary period and has been re-appointed.
His Lordship continued thus:
“Clearly, on the authorities no term will be implied in a contract unless there are grounds for doing so, and it is on that basis I approach the submission that the parties have manifested by their conduct that respondent’s appointment had been reviewed and renewed and he is now a confirmed officer. I think the principle of estoppel by conduct can rightly be founded upon in this case, having regard to all the facts I have highlighted above.”
In total support of the leading Judgment, Akpabio, JCA also stated as follows at page 570 of the Report:
“The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm the respondent’s probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppel by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats equity.”
The Court of Appeal in this decision relied on the decision of the Supreme Court in Iga V Amakiri (1976) II SC 1 at 11-12 wherein it applied this doctrine of estoppel.
Again, in the more recent decision of the Supreme Court in Chukwuma V Ifeloye (2008) 18 NWLR (Pt. 118) 204 at 237-238, the principle of estoppel by conduct was further elucidated as follows:
Where a person or one by words or deed or conduct made to another a clear and unequivocal representation of facts either with knowledge of its falsehood or with the intention that it should be acted upon, or has conducted himself that another would, as a reasonable man with his full faculties, intended to be acted upon, and that other person in fact acted upon the representation whereby his position was thereby altered to his detriment an estoppel arises against that person who made it and he will not be allowed to say that the representation is not what he presented it to be. This is known as estoppel by conduct or estoppel in pais.
In other words, where one by his words or conduct wilfully causes another to believe the existence of certain state of things and induces him to act on the belief so as to alter his own position, the former is precluded from asserting against the latter a different state of things as existing at the same time. Iga V Amakiri (1976) 11 SC 1; Ude V Nwara (1993) 2 NWLR (Pt. 583) 509; Ude V Osuji (1990) 5 NWLR (Pt. 151) 488; Nsirim V Nsirim (2002) 3 NWLR (Pt. 755) 697. See also the decision of this Court in Raji V OAU (2014) LPELR-22088(CA) at 50-52 per Owoade, JCA. –

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INADMISSIBLE EVIDENCE – WHETHER A COURT OF LAW CAN ACT UPON LEGALLY INADMISSIBLE EVIDENCE

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“Secondly, the law is trite that a Court of law cannot countenance or act upon legally inadmissible evidence, even where it has been admitted in evidence without objection or by the consent of both parties. Exhibits DW16, DW17 and DW21 are evidently and unarguably unsigned and undated documents. Thus, the lower Court was on solid ground when it declined to place any weight or act on them, and instead expunged Exhibits DW16 and DW17 from the Record. See Section 94(1) Evidence Act, 2011; Omega Bank Ltd V OBC Ltd (2005) 1 SCNJ 150; Global Soap & Detergent Ind. Ltd V NAFDAC (2011) All FWLR (Pt. 599) 1025; &Ikem V Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476. –

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EVIDENCE ON FACTS NOT PLEADED – STATUS OF EVIDENCE ON FACTS NOT PLEADED

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In addition to this, Exhibit DW19 also tendered in proof of the counterclaim titled “Summary” by which the Respondent was alleged to have admitted a debt owed to the Appellant, was neither pleaded nor was it addressed to anyone on the face of it. It is settled law that any evidence on facts not pleaded, goes to no issue. See Momoh V Umoru (2011) All FWLR (Pt. 588) 797; Agboola V UBA Plc (2011) All FWLR (Pt. 574) 74; &Buhari V Obasanjo 2005 AllFWLR (Pt. 273) 1. In addition to which, the letter said to issue from the Respondent but which was never pleaded to give the Respondent an opportunity to react to same, discloses no addressee. Thus, no nexus was established between the letter and the Appellant. Such vital information cannot be the subject of conjecture or speculation by the Court as it is incumbent on the Appellant to prove the facts he relies on to establish his counterclaim. –

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COUNTER-CLAIM – NATURE OF A COUNTER-CLAIM

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“It is the law that a counterclaim stands on the same pedestal as a claim. It is a separate and distinct action, and a counter-claimant like all other plaintiffs, must prove the claim against the person being counterclaimed against before he can obtain judgment on the counterclaim. This is a well-known principle of law. See Maobison Inter-Link Associated Ltd V UC Nig Ltd (2013) 20335(SC) 13; Ogiren V Amzat Olufunmilayo (2015) LPELR-24295(CA) 25; &Dabup V Kolo (1993) 9 NWLR (Pt. 317) 254. Therefore, a counter-claimant has the onus to adduce credible evidence to prove the assertions in his counterclaim. Where he fails to so prove, the burden of proof does not shift to the Respondent and he fails to prove his claim on a balance of probability as required by law. See Section 133(1) of the Evidence Act, 2011.-

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PROOF OF ALLEGATION OF CRIME – STANDARD OF PROVING AN ALLEGATION OF CRIME IN CIVIL OR CRIMINAL PROCEEDINGS

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“Additionally, the assertion of the Appellant in his counterclaim is that the Respondent fraudulently misappropriated the funds of the Appellant. That being the case, an allegation of a criminal offence was in issue and indeed the crux of the counterclaim. Therefore, since the allegation has to do with fraud, it must be pleaded with particularity. So, the Appellant was obligated to have pleaded and expressly set out the particulars of the fraud alleged. See UBA V Osok (2016) LPELR-40110(CA) 8-9; Eya V Olopade (2011) All FWLR (Pt. 584)28; & Olaleye V Trustees of ECWA (2011) All FWLR (Pt. 565) 297. This was not done.
Finally, the law is trite that if the commission of a crime by a party to a proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act. Thus, fraud being an allegation of a criminal nature, the standard of proof is proof beyond reasonable doubt. See Jua V State (2010) LPELR-1637(SC) 20, PARAS b-e; UBA V Osok (2016) LPELR-40110(CA) 8-9; Neka V Kunini (2015) LPELR-26031(CA) 52-54; Haruna V Modibbo (2004) 16 NWLR (Pt. 900) 487; &Adewale V Olaifa (2012) 17 NWLR (Pt. 1330) 478. –

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DOCTRINE OF ESTOPPEL BY CONDUCT – WHETHER OR NOT A PARTY IS ESTOPPED FROM DENYING THE WORDS OF THE CONTRACT BETWEEN THE PARTIES WHERE HE BY HIS WORDS OR CONDUCT WILFULLY CAUSES THE OTHER PARTY TO BELIEVE THE EXISTENCE OF CERTAIN STATE OF THINGS

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“Where there is a dispute between parties to a written agreement touching on the agreement, the only authoritative and legal source of information for the purpose of resolving same is the written document executed by the parties. See BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209 and JFS mv. Ltd V Brawal Line Ltd (2011) All FWLR (Pt. 587) 647. A perusal of the terms of the written agreement between the parties in this appeal (Exhibit CWA) shows that there is no provision for deferment of the confirmation of the appointment of the respondent. Therefore, the purported deferments of the confirmation of the appointment of the respondent by the appellant was not within the contemplation of the contract between the parties.
By failing to terminate the employment of the respondent within the period stipulated by the written agreement and increasing his salary long after the expiration of the period of probation, the appellant is deemed to have confirmed the appointment of the respondent.
The doctrine of estoppel by conduct does not allow the appellant to contend otherwise. See Section 169 of the Evidence Act, 2011 and the cases of Iga V Amakiri (1976) 11 SC 1 and OAU V Onabanjo (1991) 5 NWLR (Pt. 193) 549. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Evidence Act, 2011|

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