Austoma Enterprises Nigerian Limited-VS- Mr Ernest Osu & 2

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.

DATE: 3RD DECEMBER, 2019 SUIT NO. NICN/MKD/17/2019

BETWEEN:

AUSTOMA ENTERPRISES NIGERIA LIMITED ………………………………….CLAIMANT

AND

MR. ERNEST OSU
AUGUSTINE UKENE ………….……………………………..DEFENDANTS
DAVID INYANG

REPRESENTATION:

Parties absent

B.E. Eyibio for the Claimant.

No appearance for the Defendants.

JUDGMENT

By a complaint accompanied by a statement of facts dated and on filed 11^th March 2019, the Claimant seeks the reliefs as set down below against the Defendants;

“1. The sum of N3, 053,916.08 being proceeds of sale of Claimant’s petroleum products had and received by the 1^st Defendant which the 1^st Defendant could not account for thereby occasioning loss to the Claimant.

Cost of filing and prosecuting this suit assessed at N600, 000.00.
An order for payment of interest on the judgment sum at the rate of 10% from the date of judgment until the entire sum is fully paid.”

The Defendants never entered appearance nor filed a defence but were represented by Peter Atuba, Esq on 5^th April 2019 and 24^th June 2019 respectively. On 24^th June 2019, the Defendants were absent from court but Peter Atuba, Esq who appeared on their behalf informed the court that they were yet to file their defence because the Defendants wanted to approach the Claimant for settlement. The matter was thereafter adjourned to 24^thOctober 2019 for definite hearing. However, on 24^th October 2019, the Defendants were absent from court and also unrepresented by counsel while the Claimant proceeded to open its case by calling CW1 in the person of Remigius Nnadili who testified and tendered the following documents;

Exhibit AEN1A and AEN1B- Guarantor’s forms of the 2^nd and 3^rd Defendants.
Exhibit AEN 2- Copy of minutes of meeting dated 7/10/2016.

iii. Exhibit AEN 3- Copy of debt payment undertaking dated 13/10/2016.

Exhibit AEN 4- Copy of audited report.
Exhibit AEN 5- Minutes of meeting dated 2/08/2018.
Exhibit AEN 6A and 6B- Demand letters 27/08/2018.

vii. Exhibit AEN 7- Copy of receipt dated 7/2/2019.

Claimant thereafter closed its case and upon application of counsel made pursuant to Order 38 Rule 2 (1) of the National Industrial Court (Civil Procedure) Rules 2017, the Defendants were foreclosed and the matter was adjourned for judgment.

CASE OF THE CLAIMANT

The pleading of the Claimant reveals that the Claimant is a Limited Liability Company that deals in petroleum products marketing and as such employed the 1^st Defendant as manager of the Claimant’s subsidiary, Toniset Filling station along Gboko-Makurdi Road for sale of her petroleum products. The Claimant stated that in October 2016, the company discovered the that 1^st Defendant was selling products but diverting the monies realized from such sales amounting to N1,126,257.83 (One Million One Hundred & Twenty- Six Thousand Two Hundred and Fifty- Seven Naira, Eighty- Three kobo). After a reconciliatory meeting between the parties, the 1^st Defendant undertook to pay half of the above sum totaling N563, 137.92 within 2 years. The 1st defendant continued working and between January and July 2018, the 1st defendant still could not explain the disappearance of N3, 053, 916.68 (Three Million, Fifty Three Thousand, Nine Hundred and Sixteen Naira, Sixty-Eight kobo) only, upon an audit report carried out.

The failure of the 1^st Defendant and his guarantors (2^nd and 3^rd Defendants) to offset the sums of monies embezzled by the 1^st Defendant has given rise to this suit.

The Defendants however, have never attended court in this suit nor filed pleading.

DECISION OF THE COURT

I have carefully considered the pleading filed by the Claimant along the evidence presented by CW1 and exhibits tendered. The issue to be determined is; whether the claimant is entitled to the reliefs claimed from the defendants.

This is a trial conducted in accordance with Order 38 Rule 2 of the National Industrial Court (Civil Procedure) Rules 2017 which provides that “where a cause fixed for hearing is called and the Claimant appears in court but the Defendant is absent in court and has not filed any defence to the claim in accordance with these Rules, the Claimant shall be entitled to judgment as far as he can prove his case”.

Since this suit was instituted on 11^th March 2019, none of the Defendants have attended the court. However on 5^th April 2019 and 24^th June 2019, the Defendants were represented by counsel, Peter Atuba, Esq who without filing their defence asked for a date to explore an out of court settlement. Interestingly, neither counsel to the Defendants nor the Defendants were in court on 24^th October 2019 and the matter proceeded to trial based on Order 38 Rule of the rules of this court.

The Claimant is a registered Limited Liability Company and her claim against the Defendants is basically for the sum of N3,053,916.08 (Three Million Fifty Three Thousand, Nine Hundred & Sixteen Naira Eight kobo)only, being proceeds from sale of petroleum products which the 1^st Defendant as its staff could not account for.

It is trite law that facts pleaded by one party and not denied by another requires no further proof. See the case of Mobil Producing Nig. Unltd V. Monokpo (3002) 18 NWLR (pt. 582) 346 at 405.

Equally in the case of Unity Life & Fire Insurance Co. Ltd V. Int. Bank of West Africa Ltd (2001) LPERL- 3412 (SC), the court held, “where evidence given by a party to any proceeding was not challenged by the opposing party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it”.

I would go along with the decisions in Nseigbe& Anor V. Mgbemena& Anor (2007) 10 NWLR (pt.1042) 364, (2007) LPELR- SC. 119/2000 and Agboola V. UBA Plc & 2 Ors. (2011) LPELR- SC-.86/2003 that pleadings are the foundations of each claim of a litigating party thus a party cannot adduce evidence on facts not pleaded as such facts not pleaded go to no issue.

The Defendants in this suit neglected and or failed to join issues by way of pleading or give evidence thereto. In the case of Esoho V. Asuquo (2007) All FWLR (pt. 359) 1355, the court held thus;

It is the responsibility of the Defendant to join issues with those aspects of the plaintiff’s pleading he disputes or considers that Plaintiff ought to establish. Where the Defendant declined to do so and does not join issues on such matters, the facts so pleaded would be deemed to have been admitted.

In the case of Egesimba V Onuzuruike (2002) LPELR – 1043(SC), where the only pleading filed is the statement of claim, absence of statement of defence means that no issue is joined.

Similarly, in Emodi V Emodi (2013) LPELR – 21221(CA) where the plaintiff files his statement of claim raising an allegation of fact against the defendant or one of them, such defendant who does not admit the truth of the allegation must file a defence to contradict, challenge or deny the allegation. Where no defence is filed, the Defendant is deemed to have admitted the assertion and the court may peremptorily enter judgment against the Defendant. See also Malie V. Abubakar (2007) All FWLR (pt. 360).

From the foregoing, it can be seen that the failure of the Defendants to file their statement of defence and join issues with the Claimant and call witnesses robes this court of the powers to evaluate any evidence they might have had as the court is bound only by the facts pleaded by the Claimant and evidence adduced there from. Where evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the court should accord credibility to such evidence. See the cases of Gana V. FRN (2018) LPELR-44344 (SC) and Okoebor V Police Council (2003) LPELR – 2458(SC)

On the whole, there is nothing placed before the court that is contrary to the case of the claimant and by virtue of Order 38 Rule 2 of the National Industrial Court (Civil Procedure) Rules 2017, I make the following others;

That the Defendants shall jointly and severally pay to the Claimant the sum of sum of N3,053,916.08 (Three Million Fifty Three Thousand, Nine Hundred & Sixteen Naira Eight kobo) only, which represents proceeds from sale of petroleum products which the 1^st Defendant as its manager could not account for within 30 days.
The claim for solicitor’s fees is hereby refused and accordingly dismissed.

Judgment is entered accordingly. N50, 000 cost is awarded in favour of the Claimant against the defendants.

_________________________________

HON. JUSTICE S.H. DANJIDDA

(PRESIDING JUDGE).