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Fraud being an allegation of a criminal nature, must be proved beyond reasonable doubt


ONANKPA (2018) LPELR-45882(CA)

SUIT NO: CA/MK/60/2017





The Respondent, a Pharmacist was employed by the Appellant as a Medical Representative under a written contract, 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, other 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 week’s 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 and alleged instead that the Respondent had misappropriated the funds of the Appellant.

Consequently, the Respondent as Claimant filed a suit before the National Industrial Court, Makurdi Division claiming from the Appellant as Defendant, 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 Respondent in turn denied the counterclaim. The trial Court in its judgment found in favour of the Respondent as Claimant, while the counterclaim of the Appellant as Defendant/Counter-claimant was dismissed. Aggrieved by this decision, the Appellant filed an appeal at the Court of Appeal.

The Court considered the appeal on the following issues:
1. 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.
2. 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.
3. 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.
4. Whether the trial Court was right in dismissing the Appellant’s counterclaim.

On issues one and two, the Appellant submitted that at the time she issued the first letter deferring the confirmation of the Respondent’s employment, the Respondent had worked for almost eight months outside the period of probation without complaining. Even thereafter, the Respondent did not resign or terminate his contract of service. When the Respondent’s salary was reviewed upwards, he accepted it and continued working. The Appellant submitted that by the first letter, the Appellant found the performance of the Respondent unsatisfactory. However, instead of sacking him, she gave him an extension of time to improve. It was further contended that even though the Appellant for the second time deferred the Respondent’s confirmation of employment, she reviewed the Respondent’s salary upwards on the same date. The Respondent did not reject the offer or resign, but still continued working with the Appellant. It was therefore submitted that it is reasonable to presume that the Respondent waived his right to complain about the deferment.

Under issue three, the Appellant placed reliance on Ekenna V Mkpakar (1997)5 SCNJ 70 where it was held that damages are not proved when the evidence offered in proof is contradictory and in conflict with the pleadings. The Court was therefore urged to resolve issue three in the negative.

On issue four, the Appellant contended that in her counterclaim, she pleaded that the Respondent misappropriated the Company’s money and that he agreed to refund the sum of N2,800,632. To buttress this, she tendered in evidence Exhibit C5 signed by the Respondent as debtor. Therefore, it was submitted that Exhibit C5 is an admission against the Respondent’s interest. Thus, that by Sections 20 and 24 of the Evidence Act, the Respondent is estopped from denying that he owes the Appellant money.

In response to issues one and two, the Respondent submitted that when parties enter into a contract, they are bound by the agreed terms of the contract. Thus, if any question should arise with respect to the contract, the terms of the contract are the guide to its interpretation. Consequently, where parties to an employment contract agree that the probationary period shall be for a specified period or length of time, it shall be so and none of the parties can unilaterally abridge or extend this period. It was contended that the employment letter of the Respondent embodying the contract between the Respondent and the Appellant, expressly spelt out the terms of the contract; one of which is that the Respondent was offered appointment as a Medical Representative on probation for nine months. It was the case of the Respondent that at the expiration of the probationary period on, the Appellant unilaterally postponed the confirmation of his appointment outside the terms of the contract.

In response to issue four, the Respondent submitted that the Appellant failed to prove her counterclaim with credible evidence and same was rightly dismissed by the trial Court. It was submitted that since the Appellant contends that the basis for the counterclaim is fraud and/or misappropriation by the Respondent, it borders on the commission of a crime. It was therefore directly in issue in the counterclaim. In such a case where fraud is pleaded, the particulars of the fraud must be specifically set out and proved. The Appellant contended that the Appellant did not meet this legal requirement, that where an allegation of crime is directly in issue in civil proceedings, the standard of proof is proof beyond reasonable doubt.

Resolving issues one and two, the Court stated that it is evident that for reasons not readily evident but best known to the Appellant, she was not willing to abide by the terms of the contract of employment between the parties and only intended to keep the Respondent perpetually in limbo uncertain about his fate in the Appellant company, with all the attendant insecurities as to tenure, etc that are attendant to her actions. The Court held that it is indeed an unfair labor practice as much as it is a breach of the contract entered into by the parties, and the Appellant was therefore estopped from denying that the Respondent’s employment is deemed confirmed under the terms of the contract, having kept him in her employment long past the period of probation and testing.​ Therefore, the Respondent cannot, by any reverse reasoning as suggested by the Appellant, be deemed to have accepted Appellant’s letters of deferment or waived his rights by not rejecting the said letters. The Court stated that, that is not the law. Issues one and two were resolved in favour of the Respondent.

On issue three, the Court found that the award made by the lower Court was completely in tandem with the credible evidence adduced before the lower Court which established the Respondent’s entitlement to his salaries and allowances for a period of seven months from April to November, 2014. The issue was also resolved in favour of the Respondent.

Considering issue 4, the Court held that 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. The Court further held that in the absence of any other credible and admissible evidence as to the exact sum of money said to have been fraudulently misappropriated by the Respondent, the document does not assist the Appellant’s counterclaim in any way.​ Additionally on the assertion of the Appellant in his counterclaim that the Respondent fraudulently misappropriated the funds of the Appellant, the Court held that 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. SeeUBA V Osok (2016) LPELR-40110(CA) 8-9. Finally, the Court held that 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. However, was clearly nowhere close to attaining the requirement/standard of proof beyond reasonable doubt. Thus, on all counts, the Court held that the lower Court rightly dismissed the counterclaim on the ground that same was not proved.

In the result, having resolved all four issues in favour of the Respondent, The Court found no merit in the Appeal. It is accordingly dismissed.


R.C. NDEFO ESQ. with him, E.G. YAJI, ESQ. – For Appellant
A.A. CHUKWUMA, ESQ. – For Respondent

Compiled by LawPavilion

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