MR. ALFRED ALEGBE -VS- NATSANA NIGERIA LIMITED & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 9^TH DECEMBER, 2019 – SUIT NO: NICN/KN/07/2017

BETWEEN

MR. ALFRED ALEGBE – CLAIMANT

AND

NATSANA NIGERIA LIMITED
ALHAJI AUWALU ALIYU ETOKHANA – DEFENDANTS

REPRESENTATION:

Claimant Present in Court

Defendant absent

APPEARANCE:
Felix Jones Osimerha, Esq. the Defendant.

JUDGMENT

The claimants commenced this action by the writ filed on an 27^th of January, 2017 in which he seeks the following reliefs:

A DECLARATION that between January, 2014 and March, 2016 the Claimant was in the employment of the 1^st Defendants as the General Manager of its project site at Okpella, Edo State on a monthly salary N100,000:00 (One Hundred Thousand Naira Only), Daily Feeding Allowance of N3,000:00 (Three Thousand Naira Only) and 5% of N350,000:00 as annual rent allowance.
AN ORDER of this Honourable Court directing the defendants to pay the claimant, the sum of N1,109,000:00 (One Million and Nine Thousand Naira Only) being his monthly salaries for the months of January, 2015 until March, 2016 while in the employment of the 1^st defendant herein and which sum the defendants have since failed, refused and/or neglected to pay despite repeated demands.
AN ORDER directing the defendants to pay the claimant, the sum of N312,000:00 (Three Hundred and Twelve Thousand Naira Only) being his outstanding feeding allowance from January, 2015 until March, 2016 at the rate of N3,000:00 per day while working as the 1^st defendant’s General Manager at its project site at Okpella, Edo State and which sum the defendants have since failed, refused and/or neglected to pay claimant despite repeated demands.
AN ORDER of this Honourable Court, directing the defendants to pay the claimant, the sum N175,000:00 (One Hundred and Seventy Five Thousand Naira Only) being his outstanding rent allowance for 2015, payable to the claimant while working as the 1^st defendant’s General Manager and which sum the defendants have since failed, refused and/or neglected to pay despite repeated demands.
GENERAL DAMAGES in the sum of N5,000,000:00 (Five Million Naira Only) for hardship, psychological and emotional trauma suffered by the claimant as a result of the acts of the defendants in the unjustly refusing and/or failing to pay the claimant his legitimate and earned entitlements whilst in the service of the 1^st defendant.
ANY OTHER consequential orders or further orders as this Honourable Court may deem fit to make in the circumstances of this matter.

At the close of hearing in which the claimant called two witnesses who were Cross Examined by the Defendants. The Defendants opted to rest their case on that of the Claimant and the matter was adjourned for Adoption of Written Addresses.

The Claimant in his Final Written Address formulated a sole issue for determination being:

“Whether by virtue of pleadings filed and testimony led, the Claimant has not proved his claims on the preponderance of evidence places before this Honourable Court, to be entitled to Judgment?

The Defendants on the other hand formulated Five issues for determination as follows:

Whether there was evidence by the Claimant as CW1 as contained in his adopted purported Witness Statement on Oath sworn on the 27^th day of January, 2017, upon his admission of not being the signatory of the said Witness Statement on Oath to sustain his claims in this suit and whether same can be amended.
Whether the failure of the Claimant to adopt the Amended Witness Statement on Oath sworn on the 19^th day of February, 2018 renders it inchoate and therefore not evidence before this Honourable Court to sustain his claims in this suit.
Whether this Honourable Court can grant the Claimant’s reliefs in the absent of evidence to establish the Claimant’s claims as contained in his point of Claim.
Whether the failure of the Defendants to proffer any evidence in their defence of the Claimant’s action renders the Claimant’s claims proved without any cogent evidence by the Claimant.
Whether the 2^nd Defendant that is pleaded as being the Chairman of the 1^st Defendant that is a disclosed principal can be liable to the Claimant on his claims, if it is found that the 1^st Defendant is liable to the Claimant in his Claims.

CASE OF THE CLAIMANT

It is the Claimant from his amended points of claim (Statement of Facts) that he was formerly in the employment of the Defendants between December, 2013 and March 2016. The 1^st Defendant is a Limited Liability Company duly incorporated in Nigeria to carry out the business of Mining Industrial Minerals with its Head Office in Kano with a Project Site as Okpella Edo State and was his employer. He identified the 2^nd Defendant Alhaji Aliyu Etokhana, as the alter ego and operating mind of the 1^st Defendant with whom he transacted throughout the duration of his employment with the 1^st Defendant.

It is his case that he was employed sometime in December, 2013 in Kano as the General Manager of three (3) of the 2^nd Defendant’s Companies. Natsana Nigeria Ltd (1^st Defendant), Uralo Petroleum Group and Natsana (Nigeria) Limited (Customs Licence Agents). That upon commencement of his duties in January, 2014 he was specifically redeployed to the 1^st Defendant’s Mining Project Site at Okpella, Edo State on the instructors of the 2^nd Defendant to whom he was reporting for which he tendered exhibits A. a Natsana Ltd complimentary card as Customs Agent, Exhibit A1 , his Uralo Petroleum Ltd ID card.

He averred that as General Manager of the 1^st Defendant he was entitled to the sum of N100,000;00 (One Thousand Naira Only) as his monthly salary, the sum of N3,000: (Three Thousand Naira Only) as feeding allowance per day 2^nd the sum of N175,000:00 (One Hundred and Seventy Five Thousand Naira Only) per annum being 50% of the sum of N350,000: (Three Hundred and Fifty Thousand Naira Only)as rent allowance for which he tendered exhibit B1 his Uralo Nigeria Ltd payslip for September, 2014.

The Claimant averred that before during and after the commencement of his employment contract with the 1^st Defendant. He severally requested for a formal employment letter containing terms and conditions of his employment which he for reasonings best known to the 2^nd Defendants he was not given an employment letter but was initially paid his agreed salaries, entitlements and allowances for some time. And when he contained to persist on issued with his employment letter, the 2^nd Defendant asked him to be patient and to keep doing his work, so long as he was being paid his salaries and entitlements. He maintains that in the course of his employment at the 1^st Defendants Mining’s Project site at Okpella, Edo State he helped to process and obtained 1^st Defendant’s Mining Licences from the Minning Cadastral Office at Abuja in November, 2014 amongst other duties for which he tendered exhibit B a letter of introduction dated 14^th November, 2014. Also in PW of his employment as General Manager of the 1^st Defendant’s Corporation Profile.

The claimant maintained further that he was paid his salaries of N100,000:00 monthly effective from January 2014 until the end of March, 2016 and his rent allowance of N175,000:00 (One Hundred and Seventy Five Thousand Naira Only) per annum for the year 2014 on or about 7^th March, 2014. He maintained that his rent allowance for 2015 has not been paid by the Defendants despite repeated demands, even though he worked for them throughout the year and payment was due to him. That between January, 2015 until March, 2016 he was not paid his feeding allowance of N3,000: per day resulting in an unpaid balance totalling N312,000:00 (i.e N426,000 less N144,000 I.O.U for feeding severally paid to him at Okpella, Edo State. That the sum of N312,000:00 is still due and owing to the Claimant by the 1^st Defendant).

He averred that some time at the end of March, 2016 the 2^nd defendant recalled him back to Kano from his duty post at Okpella, Edo State for no just cause or reason and stopped paying his salaries, entitlements and allowances. That the Defendants continued in their default in paying the said salaries and entitlements. He tendered exhibit D to D2 a 3 page letter of demand from his Solicitors dated 29^th December, 2016 written to the Defendants.

In addition, the Claimant called CW2, one Alhaji Abdullahi Baba Yahaya who in his adopted witness statement on oath told the court that he knows the parties in the suit by virtue of his long standing relationship with the claimant and 2^nd Defendant, who were both his friends. He said that he knows the 2^nd Defendant who were his friends. He said that he knows the 2^nd Defendant as the Chairman of the 1^st Defendant, a Company engaged in the business of Mining of Industries Materials with Head Office at Kano and Project Site at Okpella. Edo State at all material times between 2013–2016. That the Claimant was in the employment of the 1^st Defendant as its General Manager and was stationed at Okpella. That when the Claimant returned to Kano sometime in March, 2016 at the instance of the 2^nd Defendant, he contacted him severally to help resolve the outstanding differences he was having with the 2^nd Defendant in respect of his unpaid salaries and entitlements. And he made several effort to intervene but the 2^nd Defendant could not resolve the matter as a result of which the suit was instituted and that two other mutual friends.

THE CROSS – EXAMINATIONOF CW1 and CW2

In the cross examination of the claimant he told the court that he was employed by the Uralo Nigeria Limited in January, 2014 and the 2^nd Defendant is its Chairman. He told the court that he was not given a letter of employment. He admitted that the terms of his employment was oral.

He insisted that the salary fixed for him was N100,000:00 per month not N80,000:00 monthly salary and N40,000:00 house rent as suggested to him.

He told the court that from exhibit B1 his housing allowance was N10,000:00 (Ten Thousand Naira) per month.

And he admitted that this is what was paid to him per month and that it amounted to N120,000:00 per year. He said that he was not being paid housing allowance twice a year. He said that his claim for housing allowance was not false because the 2^nd Defendant promised to pay 50% of his house rent which was paid in 2014.

Under further cross examination the claimant was made to sign a specimen of his signature which was admitted in evidence as exhibit E. After this, when asked who had signed his witness statement on oath dated 27^th January, 2017, he told the court that he did not know, that he was sick that someone else whom he did not know signed it for him for him. He also went on to tell the court that at Ukpella there were 23 staff there and He gave further information about other Management Personnel of 1^st Defendant.

In the Cross Examination of CW2, he told the court that he was not a staff of the 1^st Defendant. That he did not remember the date and year the claimant was employed but that as soon as he was employed the claimant was sent to him. He said he did not sign the claimant’s employment letter and he did not know the terms of employment of the claimant with the 1^st Defendant, and he could not also tell the claimant’s salaries and entitlements and that he did not know the shareholders of the 1^st Defendant.

THE WRITTEN ADDRESS OF THE PARTIES AND DECISION OF THE COURT

At the close of the claimant’s case as noted earlier, the Defendants opted to rest on the case of the claimant and written addresses were subsequently filed and adopted and the matter adjourned for Judgment.

I have already laid out the various issues the parties set up for determination in their final written addresses and I shall proceed to determine the sole issue by the claimant against the 5 issues set out by the Defendants. The Claimant had raised the sole issue:

“Whether by virtue of pleadings filed and testimony led the claimant has not proved his claims on the preponderance of evidence placed before the court to be entitled to Judgment”.

It was submitted for the claimant that by virtue of the pleadings filed and the testimony led by the claimant alone, the claimant had proved his claims on the preponderance of evidence led and on the balance of probabilities to be entitled to the Judgment of this court without much ado citing the cases of OBASI V. MERCHANT BANK (2005) 21 NSCQR 275 and CIVIL DESIGN LTD V. SCOA (2007) 29 NSCQR 1298. The claimant through counsel pointed out that when matter came up on 18^th day of June, 2019 and CW2 testified and established unequivocally that he knew the claimant to have been in the 1^st Defendant’s employment between 2014 and 2016, that the 2^nd Defendant who filed a 52 paragraph witness statement on oath and was scheduled to testify in support of the Defence did not testify as Counsel announced the Defence was resting its case on that of the claimant.

Flowing from this position it was submitted for the Claimant that by electing not to led evidence in support of the Defence, their statement of Defence would be deemed as unproved and abandoned. That the Law is that evidence must be led or adducted in support of averments contained in a pleading relying on ABUBAKAR V. JOSEPH (2008) 34 NSCQR 1195, NWOKOLOBIA V. NWOGU (2009) 38 NSCQR 142, OKOLI DIM V. ENEMUO (2009) 38 NSCQR 873 and the case of IFETA V. SHELL LTD (2006) 26 NSCQR 605 at 614.

It was submitted further that the decision of the Defendants not to adduce evidence in support of their statement of Defence dated 13^th February, 2017 is fatal to their defence of this matter as the claimant never admitted to any of the facts contained in the now abandoned pleadings and the court was urged to deem the Claimant’s claim as contained in the Amended points of claim dated 16^th February, 2019 as undefended.

In response the Defendants in their written address at paragraph 1.02 re capped some essential aspects of the trial stating that on the Claimant had filed a 17 paragraph points of claim dated the 26^th day of January, 2017 which was subsequently emended by the claimant by adding a new paragraph 17 and amending the old paragraph 17 as paragraph 18, with the witness statement on oath also amended by the addition of new paragraph 15 and substituting the former paragraph 15 and 16 with the new paragraphs 16 and 17 respectively. The Defendants maintained the statement of Defence filed on the 13^th February, 2017 with the 2^nd Defendant’s witness statement on oath.

The Defendant stated further that on the 31^st day of October, 2017, the claimant, testified as CW1 and was Cross Examined wherein he admitted that the signature in his witness statement on oath was not his that he was Sick and did not know who signed the witness statement on oath for him. That it was after this testimony that the claimant sought to amend his point of claim and witness statement on oath which the court granted overruling the Defendants objection to the amendment.

The Defendant stressed that upon being granted leave by the court in the ruling delivered on the 6^th of July, 2018 the claimant filed an amended statement on oath sworn to on the 19^th day of February, 2018. That it is pertinent to note that the claimant was never recalled to adopt his amended witness statement on oath, which he may have signed to cure the defect in his earlier adopted witness statement on oath which he denied signing.

In summarising the claimant’s evidence the defendants also pointed out the admissions made by both witness for the claimant CW1 and CW2 respectively which I had highlighted earlier in the Judgment.

In the legal argument in respect of issue one as formulated by the Defendants, it was submitted that the claimant having admitted that he did not sign the witness statement on oath sworn on the 27^th day of January, 2017, it therefore meant that the purported witness statement on oath was not adopted by its maker or deponent thereby rendering it worthless citing the case of MR. DANJUMA ISMAILA V. OLAOLUWA MATHEW (2007) ALL FWLR (Part 891) 824 at 840 paras D-H-841.

Similarly at issue 2 it was submitted for the Defence that the claimants witness statement on oath was not adopted by the claimant after he was allowed by the court to amend his purported WSO Sworn on 27^th day of January, 2017 constitutes evidence which the court can rely on to grant the claimants claim.

This with regard, with regards to the 2^nd issue formulated for determination whether the failure of the claimant to adopt the amended witness statement on oath sworn on the 19th day of February, 2018 renders it in choate and therefore not evidence before the court to sustain the claimant’s claims.

It was argued for the defence, following the provisions of Order 1 Rules 10 (2) of the NICN Civil Procedure Act Rules, 2016 and Order 3 (1) (i) Rule 9 (c) of the same Rules of Court, that the facts deposed to in the witness statement on oath only become evidence if the witness statement on oath is adopted by the witness. And it was submitted for the defence that the facts in the frontloaded witness statement on oath do not become evidence until it is adopted by the deponent or witness therefore and with the claimants witness statement on oath sworn on the 19^th day of February, 2018, he was never recalled to adopt the said witness statement on oath sworn to the 19^th day of February, 2018.

Now, it is trite law, even as stated by the claimant at paragraph 1.2 of his written address, and reiterated by the Defence at paragraph 5.08 of their address that upon an amendment of court processes the old processes are no more alive and the court can only make reference to the amended process now before the court. See AGBOLADE OSINEYE V. ALH NOFIU OLORODE LAWAL, (2018) ALL FWLR (Part 936) 1456 and AGBAHOMOL V. EDUYEGBE V. IZUNASE (No. 2) (2011) 17 NWLR (Part 1275) 28 at 88.

Now, I have looked through the records of court as courts are entitled to in consideration of any matter before it. See AGBAREH V. MMRA (2008) ALL FWLR (pt. 409) 559 @ 589 para D –F. And I have come to the conclusion, having no doubt as follows.

That upon grant of the application to amend the claimants point of claim and witness statement on oath on the 10^th day of October, 2018 by the Ruling of the Court the claimant filed a fresh one.
By the records of the 31^st day of October, 2017 just after the claimant had been Cross Examined and 5^th December, 2017 when the Defence Counsel Mr. Osimerha told the court that he had no further question for the claimant who had been recalled and reminded of his oath. His Counsel Mr Asekome told the court that he had some question but did not intend to go on and the matter adjourned to 20^th day of February, 2018, by which date an application to amend the points of claim and witness statement on oath of the claimant had been filed as told the court by Counsel to the Claimant.
From the records of proceedings of the court for the 26^th day of April, 2018 and 16^th day of June, 2018, when the Motion for Amendment was heard, up to 11^th October, 2018 when the Ruling was delivered granting the amendment and up to the 5^th day of November, 2018, and 20^th March, 2019 and 7^th of May, 2019 up to the 16^th May, 2019 and 18^th June, 2019 when CW2, the Second witness for the Claimant was called, testified and was Cross Examined. I find and do hold that the claimant was never recalled to be examined by his Counsel and neither was he called to adopt his witness statement on oath as his evidence before the court.

As to the legal effects of not having the claimant or a witness adopt his witness statement on oath before the court. It has the effect amounting to having place nothing before the court. See case of MAJEKODUMI V. OGUNSEYE (2017) LPELR – 425 47 (CA) where the Court of Appeal had this to say; “To determine this issue, I find it necessary to state the legal status of a written statement on oath. It should be noted that unlike an affidavit perse, a written statement on oath filed in court is not evidence, unless it has been duly adopted by a witness at the trial…” at page 41 of the LPELR.

From the above principle it becomes clear that failure of the claimant to adopt his Amended statement on oath especially where the one initially adopted had been rendered moribund by the amendment, has the effect of unhinging the claim of the claimant because the Defendants would have no averments or adopted evidence to cross examined upon. The further effect being that the claimant’s case have no legs to stand upon and must fail as a consequence.

In the circumstances, the sole issue formulated for determination by the claimant is determined against him. All issues formulated for determination by Defendants are resolved in their favour.

The Case of the Claimant fails and is consequently, dismissed. Parties to bear their own costs

Judgment is entered accordingly.

__________________________

HON. JUSTICE E. D. E. ISELE

JUDGE