ANTHONY OGUEJIOFOR v. SIEMENS LIMITED (2007)

ANTHONY OGUEJIOFOR v. SIEMENS LIMITED

(2007)LCN/2173(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of January, 2007

CA/K/204/2004

RATIO

PLEADINGS: WHETHER PLEADINGS CONSTITUTES EVIDENCE

It is trite law that pleadings cannot constitute and does not tantamount to evidence. In International Bank of West Africa Ltd. v. Imano (Nigeria)Ltd. & 1 Or. (2001) 17 WRN 1 at 24, the Supreme Court, Per Iguh JSC states thus- “a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts in dispute as adduced in evidence by the plaintiff, notwithstanding the general traverse in his pleadings.” See also; F.C.D.A. v. Haibi (1990)3 NWLR (pt 130) 270 at 281, UBN Ltd vs. Ogboh (1995) 2NWLR (PT. 380) 647 Insurance Brokers of Nigeria v. A.T. M. Co. Ltd. U (1996)8 NWLR (PT. 466) 316 AT 327. However, it is equally trite, that the plaintiff must necessarily succeed on the strength of his case but not on the weakness of the defence, although he is entitled to rely on evidence revealed in such weakness to strengthen his case. See; Piaro v. Tenalo (1976) 12 SC 31, Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25, Otunba A. Lateef Owoyemi v. Prince Yinusa O. Adekoya & 2 Ors (2004) 7 WRN 1 at 22. PER OLUKAYODE ARIWOOLA, J.C.A

BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF

is trite that he who asserts the existence of a fact must prove that the fact exists. The burden of proof therefore lies on the appellant who asserts that he was entitled to be paid his claim to prove it. See; S. 135, Evidence Act,Igwe v. Alozieuwa (1990) 3 NWLR (pt. 141) 756,Kwasba (Nig) Ltd. v. Okonkwo (1992) 1 NWLR (Pt. 218) 407, Emeka v. State (2001) 6 SC 227, Chris Eigba v. Nigeria Union of Teachers (2006) 48 WRN 28 at 47 & 56. Where a plaintiff avers certain facts in his statement of claim which the defendant specifically denied in the statement of defence, issues are said to be joined on those facts and the onus of establishing those facts so averred lies on the plaintiff. See; Imoloame v. WAEC (1992) 9 NWLR (pt.265) 303 at 320. PER OLUKAYODE ARIWOOLA, J.C.A

JUSTICES

BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria

ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

Between

ANTHONY OGUEJIOFOR Appellant(s)

AND

SIEMENS LIMITED Respondent(s)

BABA ALKALI BA’ABA, J.C.A (Delivered the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court holden at the Kaduna State Judicial Division in suit No. KDH/KADJ/466/2003, delivered on the 19th day of March, 2004. The appellant herein as the plaintiff commenced an action against the defendant now the respondent by a writ of summons dated 16/7/2003, wherein he claimed the following reliefs as per paragraph 7 of his statement of claim:-
“(7) The sum of N138,937.50 being the entitlement as follows:
(a) Gratully
(b) Transport
(c) Housing Allowance
Special damages:
(a) Filing fees          N65:1.00k
(b) Professional fees-       N70,000.00
General damages                       N200,000.00
Total              = N409,588.50k”
Pleadings were ordered, flied and exchanged by parties.
At the hearing only the appellant as plaintiff testified at pages 32 – 33 of the printed record. The respondent did not cross-examine the appellant who testified as PW.1 because the learned trial judge closed the case for defence on 24/2/2004 because both parties were absent without any excuse, having adjourned the suit several times to enable the respondent cross-examine PW.1 and give evidence in support of its case.
After the close of the appellant’s case and address, the learned trial Judge, in a reserved and considered judgment contained at pages 43 – 46 of the printed record, held:
“It is clear from the foregoing that the plaintiff has not proved the claim before this court. It should therefore be dismissed. The claim for N651 (Six hundred and fifty-one Naira) filing fees cannot therefore stand.
The entire claim having failed same is hereby dismissed.”
Aggrieved and dissatisfied with the judgment of the lower court, the appellant by his notice dated 27/5/2004, filed on 20/7/2004, containing three grounds of appeal, appealed to this court. The notice and grounds of appeal are contained at pages 47 – 49 of the printed record and the grounds with their particulars are as follows:-
“GROUNOS OF APPEAL
1. The learned trial Judge Hon. Abiriyi, J, erred in law when he upheld the submissions of the respondent to the effect that the appellant cannot claim under Exhibit “2”, stating that “the claim under Exhibit 2 is a futile exercise, and is baseless.”
PARTICULARS OF ERROR
(1) That Exhibit “2” is dated 16-09-2002 does not vitiate the intention of the parties to the effect that “this AGREEMENT shall take effect from 1st day of August, 2002” precisely when the appellant was still a staff of the respondent.
2. The learned trial Judge misdirected himself when he found as a fact that “even if the plaintiff was still in the employment of the defendant at the time Exhibit 2 was made, it would not be binding on the parties.”
PARTICULARS OF ERROR
(i) By Exhibit 2, the agreement reached on 16th September, 2002 with retrospective effect from 1st day of August, 2002 was binding between STEMENS LIMITED NIGERIA being the management at the time and SEWUN SIEMENS BRANCH being the Union to which the appellant belonged, having regard to the fact that the agreement related essentially to the Basic Salary and allowances received by the staff at the time Exhibit 2 became operative.
3. The learned trial Judge Hon. Abiriye J, misdirected himself when he dismissed the entire appellant’s claim on the grounds that the plaintiff has not proved his claim before the court without adverting to the fact that the respondent abandoned her pleadings and led no evidence in support of same.
PARTICULARS OF ERROR
(1) The respondent did not adduce any evidence in court to contradict the appellant’s claim and the trial court ought to have believed the case of the appellant without further proof particularly as it related to monetary claims.
RELIEF SOUGHT FROM THE COURT OF APPEAL
To allow the appeal, set aside the judgment of the Kaduna State High Court delivered on 19th day of March, 2004:
Briefs of argument were filed and exchanged between the parties in accordance with the Rules of Practice and of Procedure of this Court.
The appeal came up before this court for hearing on the 19/10/2006. Learned counsel for the appellant, Johnson B. Okongor, Esq, who was in court adopted and relied on the appellant’s brief dated and filed on 26/7/2004, without advancing any oral argument. The learned counsel for the respondent was absent but was fully aware of the hearing date of the appeal, as he was in court when the appeal was fixed for hearing against the 19/10/06. However since the respondent has duly filed its brief, the respondent’s .appeal was deemed argued by virtue of the provisions of Order 6 rule 9(5) of the Rules of this Court.
At page 2 of the appellant’s brief, two issues were distilled for the determination of this appeal as follows:
“2.1. Whether the failure of the respondent to lead evidence in support of its pleadings and in rebuttal of the appellant’s claim can be substituted by counsel’s address?
2.2. What will be the effect of respondent’s failure to controvert appellant’s claim at the trial court?”
The respondent on the other hand at pages 4 of the respondent’s brief adopted the two issues  formulated by the appellant and still proceeded to formulate two additional issues at page 5 of the respondent’s brief as follows:
(A) “Whether Exhibit 2 being a collective agreement entered into between SIEMENS LIMITED NIGERIA MANAGEMENT AND SEWUN (SIEMENS BRANCH) can in law constitute the basis or bedrock upon which the appellant can base or sustain his claim against the respondent when he was never a party to collective agreement in person nor was the collective agreement ever incorporated into or formed part of his contract of employment.
(B) Whether the appellant having ceased to be an employer of the respondent’s company as at on the 1st day of September 2002, can again turn around to claim for any other benefit arising from a collective agreement entered into between the respondent company and SEWUN on the 16th day of September 2002 after the appellant has ceased to be an employer of the respondent company and when he was never a party to the said collective agreement and same having not been Incorporated into his contract of employment?”
The facts of this case as gathered from the printed record are short, simple and clear as follows: According to the plaintiff, he was employed by the defendant on the 11th day of March, 1997 and on the 1st day of September, 2002 he was given a redundancy paper Exhibit “1”. He tendered the collective agreement Exhibit “2” between the management and the workers union of the defendant company. When the plaintiff now appellant was served with the redundancy paper, he discovered that he was short paid his entitlement. According to the, appellant, from Exhibit 2, he was supposed to have been paid six weeks basic salary for five years as contained in his claim in the suit. After informing the defendant/respondent of the shortage of the payment of his entitlement, the defendant now respondent, responded by its reply, In a letter admitted in  evidence marked Exhibit “3”. As a result the appellant instituted an action against the respondent, leading to this appeal.
Although the respondent filed its statement of defence, it did not lead any evidence in support of its case.
The learned counsel for the appellant, in arguing his two issues, jointly in the appellant’s brief of argument submitted that the lower court was in error when it construed that the appellant cannot make any claim under Exhibit “2”, without adverting to the merit of the contents of the whole document. He contended that at page 3 of Exhibit “2” under “DURATIONAND EFFECTIVE”, it is stated thus: “It is agreed that the agreement shall take effect from the 1st day of August 2000 and shall last for one year and shall therefore remain in force until such a date that a new agreement shall be concluded to replace it. Learned counsel for the appellant, stated that the respondent did not call any evidence in support of its pleadings in reversal of the appellant’s claim and posed a question as to whether the respondent’s counsel’s address can be regarded as evidence in support of the respondent’s case. See NEKA & B.B. MANUFACTURING CO. LTD. v. A.C.B LTD. (2004) ALL FWLR (PT.198) 1175 and 1191.
That in the instant case all the respondent succeeded In doing through Its counsel was to show that the appellant’s case was based on a collective agreement between Siemens Ltd Nigeria Management and Sewun (Siemen’s Branch) contained in Exhibit 2. On the effect of unchallenged evidence, learned counsel for the appellant submitted that it was held In STRABAG CONSTRUCTIONNIGERIA LTD. v. ADEYEFA (2001) ALL FWLR (PT.60) 1538 all 556 that where an adversary or a witness called by a party testified on a material fact In controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross examine him on that fact, or at least show that he does not accept the evidence as true, otherwise a court can take his silence as an acceptance.
It is argued that the learned trial Judge of the court below was in error when he construed that Exhibit 2 was not embodied or incorporated in the condition of the appellant’s contract of service either expressly or by necessary Implication and as a result not binding on the parties. Learned counsel for the appellant stressed that Exhibit “2” is binding on the parties having regard to the fact that the effective date is 1st day of August, 2002 when the appellant was still in the employment of the respondent’s Company as Exhibit “2”, reviewed the Workers’ basic salary and fringe benefits/allowances. According to the learned counsel for the appellant, the review was by implication, incorporated in the condition of the appellant’s contract of service.
In conclusion, learned counsel for the appellant urged the court to allow the appeal.
In his response to the argument of the learned counsel for the appellant, learned counsel for the respondent, commenced his submission, by stating that it is true from the printed record in this appeal, that the respondent did not lead evidence in respect of his defence but duly joined issues with the appellant by duly filing its statement of defence, denying all the averments contained in the appellant’s statement of claim, thereby placing the evidential burden of proof on the appellant to establish his claim against the respondent on the preponderance of evidence as provided for under Sections 135(1), 137(1) of the Evidence Act. Relying on the case of MAJOR 1.2 UMORU (LTD) & ANOR. v. ALH. ABUBAKAR ZIBIRI & ORS (2003) 11 MJSC 109 at 126 Paras. G, learned counsel for the respondent argued that the onus of proof Is on the plaintiff, so the appellant as plaintiff has the burden of proving the averments contained in his pleadings. See also BANK OF BARODA v. IYALABANI CO. LTD. (2002) 13 MJSC 102 at 127 Paras. F – G. He pointed out that the appellant in paragraph 4 of his statement of claim based his claim solely on the collective Agreement entered into between SIEMENS LTD NIGERIAN MANAGEMENT AND SEWUN (SIEMENS BRANCH).
Learned counsel for the respondent further submitted that it is trite law that where a plaintiff claim is founded on a collective agreement as in the instant appeal, the burden of proof Is on the plaintiff to show that he is either a party to the collective agreement or that the agreement was subsequently Incorporated into his contract of employment, placing reliance on FRIDAY U. ABALOGU v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA (2003) Vol. 10 MJSC 60 at 83 – 84.
It is contended that the appellant never tendered his letter of employment for the court to decide what constituted the terms or conditions of the appellant’s employment with the respondent’s company, nor was any terms and conditions of the appellant’s employment tendered in evidence during the hearing of the case.
Learned counsel for the respondent, in conclusion, urged the court to dismiss the appeal.
On Exhibit 2, the collective agreement relied upon by the appellant, the learned trial Judge, held, “The claim under exhibit 2 is a futile exercise; and is baseless.
Even if the plaintiff was still in the employment of the Defendant at the time Exhibit 2 was made it would not be binding on the parties. Where a collective agreement is not embodied or incorporated in the conditions of a contract of service either expressly or by necessary implication, it will not be binding on the parties.”
I have earlier in this judgment reproduced the claim of the appellant as the plaintiff, the respondent as defendant filed its statement of defence contained at pages 5 – 6 of the printed record, paragraphs 3, 4, 5, 6 and 7 of the statement of defence which I consider relevant, are hereby reproduced below:-
“3. The defendant denies paragraphs 4, 5, 6 and 7 of the plaintiff claim and puts the plaintiff to the strictest proof of the averments therein contained.
4. That is reply to paragraph 4 of the plaintiff claim, the defendant aver that the plaintiff Is not entitled to any claim under the said agreement between SIEMENS LTD NIGERIA MANAGEMENT AND SEWUN (SIEMENS BRANCH) since services came to an end on the first day of September 2002 before the coming into existence of the said agreement.
5. In reply to paragraph 5 of the plaintiff claim the defendant re-affirm the position as stated in paragraph 4 of this statement of defence that the plaintiff is not entitled to claim under the said agreement which came into existence on the 16th day of September 2002 and the said agreement “AGREEMENT BETWEEN SIEMENS LIMITED NIGERIA MANAGEMENT AND SEWUN (SIEMENS BRANCH) dated the 16th day of September, 2002 is hereby pleaded and same shall be found and relied upon at the hearing of this suit and Notice is hereby given to the plaintiff to produce the original copy of same now in his possession and custody.
6. That the defendant in further response to paragraph 5 of the plaintiff claim avers that the plaintiff has been duly paid all his entitlement in accordance with the company rules and regulations and shall find and rely on plaintiffs last payment voucher to that effect.
7. The defendant in reply to paragraph 6 of the plaintiff claim aver that the plaintiff is not entitled to any claim or a simple kobo against the defendant.”
Having examined the two issues formulated by the appellant from his three grounds of appeal, I am of the view that the two Issues are not in effect challenging the judgment of the lower court, but merely raising academic issues which has no bearing In this regard, I propose to formulate only one Issue for determination in this appeal as follows:
“Whether or not the trial Judge was right in dismissing the appeal having regard to the evidence adduced by the appellant?”
It is true that in civil cases, the burden of proof is on a plaintiff to prove his case and when he fails to do so, he cannot rely on the weakness of the defendant’s case. In that sense the defendant bears no burden to adduce any evidence or satisfactory evidence. See KODILINYE v. MBANEFO ODU (1935) 2 WACA 336.
But where a plaintiff has produced evidence in support of his case which prima facie will entitle him to judgment, the defendant will need to lead some evidence to enable the court to consider on whose side the case preponderates. See AROMIRE v. AWOYEMI (1972) 2 S.C. 1 at 1 See ADELEKE v. AYINDA (2001) 13 NWLR (PT.729) 1 at 21 – 21
Taking Into considerations the evidence adduced by the appellant and his reliance on the collective agreement, Exhibit 2, I agree with the learned trial Judge, that reliance of the appellant on the collective agreement is a futile exercise. Even though the appellant is not complaining against the termination of his employment, I still hold the view that the letter of his employment which contains the conditions of service ought to be the basis of his claim and his failure to tender the said letter of employment, is fatal to his claim. As it is now, there is no link whatsoever between the collective agreement, Exhibit “2” relied upon by the appellant and his letter of employment that is the contract of service, which ought to have been tendered in evidence in proof of the conditions of service claimed by the appellant in the suit before the trial court.
There can be no doubt that where a collective agreement is incorporated or embodied in the conditions of a contract of service whether expressly or by necessary Implication, it will be binding on the parties but not otherwise. See CHUKWUMA v. SHELL DEVELOPMENT OF NIGERIA LTD (1993) 4 NWLR (PT.289) 512 at 543 – 544. In the present appeal, however, the collective agreement has not been proved by evidence to have been incorporated in the appellant’s condition of employment which was In fact not even tendered in evidence at all as a result the collective agreement Exhibit “2” on its own without relating it to the letter of employment containing the conditions of service does not serve any useful purpose in the determination of the action before the trial court.
It is well settled that a trial Judge who sees and hears the witnesses giving evidence before him, has the exclusive right to assess their demeanour so as to determine whether they are telling the truth or not. He can, in this way, determine the credibility or otherwise of the testimony of every witness who testified before him. If this is done properly, it is not for the appellate court to Interfere in any way possible.
In the instant appeal, I am of the view that the trial Judge exercised his power correctly and I am in full agreement with his judgment. See UMORU v. ZIBIRI (2003) 11 NWLR (PT.832) 647 at 665. I therefore resolved the sole issue framed by me against the appellant in favour of the respondent.
In sum, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Kaduna State High Court in suit No. KDH/KAD/466/2003 delivered on 19/3/2004 by J.S. Abiriyi, J, is hereby affirmed by me, with costs assessed at N5,000.00 in favour of the respondent against the appellant.

ABUBALAR ABDULKADIR JEGA J.C.A: I have read in advance the Judgment of my learned brother, Ba’aba, JCA, just delivered. I agree with his reasoning and the conclusions reached therein and find that there is no merit whatsoever in the appeal.
I therefore dismiss it and abide by the consequential orders made therein including the order as to costs.

OLUKAYODE ARIWOOLA, J.C.A: I have read before now the lead judgment just delivered by my learned brother, Sa’aba, JCA and I agree with his reasoning and conclusion that the appeal lacks merits.
As clearly shown on the records, the appellant was relieved of his employment on the 1st September, 2002, for reason of being redundant. He did not challenge or contest the decision of the Respondent in declaring him redundant. He however based his claim on certain entitlements including (a) Gratuity (b) Transport (c) Housing allowance totaling N138,937,50.00. He pleaded and relied on his letter of employment and conditions of service. He also relied on an agreement dated 16/09/2002 which was entered into between Siemens Ltd. Nigeria Management and Sewun (Siemens Branch).
On the exchange of pleadings, issues were joined and the case proceeded to trial. Only the plaintiff appellant testified and closed his case while the defence was forced to close its case without calling any evidence. Judgment was therefore based on the evidence adduced by the plaintiff only. In the judgment of the trial court, the plaintiff’s case was dismissed which led to this appeal.
The only issue that can be deduced from the entire records as rightly formulated in the leading judgment is –
“Whether or not the trial Judge was right in dismissing the appeal having regard to the evidence adduced by the appellant.”
There is no doubt that the defendant/respondent did not call evidence to support the averments in the statement of defence. It is trite law that pleadings cannot constitute and does not tantamount to evidence. In International Bank of West Africa Ltd. v. Imano (Nigeria)Ltd. & 1 Or. (2001) 17 WRN 1 at 24, the Supreme Court, Per Iguh JSC states thus-
“a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts in dispute as adduced in evidence by the plaintiff, notwithstanding the general traverse in his pleadings.”
See also; F.C.D.A. v. Haibi (1990)3 NWLR (pt 130) 270 at 281, UBN Ltd vs. Ogboh (1995) 2NWLR (PT. 380) 647 Insurance Brokers of Nigeria v. A.T. M. Co. Ltd. U (1996)8 NWLR (PT. 466) 316 AT 327.
However, it is equally trite, that the plaintiff must necessarily succeed on the strength of his case but not on the weakness of the defence, although he is entitled to rely on evidence revealed in such weakness to strengthen his case. See; Piaro v. Tenalo (1976) 12 SC 31, Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25, Otunba A. Lateef Owoyemi v. Prince Yinusa O. Adekoya & 2 Ors (2004) 7 WRN 1 at 22.
It is note worthy that the plaintiff duly pleaded the letter of employment and conditions of service but this were not produced in court. It was therefore not made available for the trial court to examine and see whether or not he was indeed entitled to the claim of Gratuity, Transport and Housing allowance as contained in his pleadings.
Similarly, the appellant in his pleadings also averred clearly that he ceased to be in the employment of the respondent with effect from 1/09/2002, yet he wanted to benefit from the terms of the agreement executed and which came into force on 16/09/2002. It is clear that issues were joined by parties on these points, therefore the appellant was expected to prove his entitlement to the claim by adducing credible oral and or documentary evidence.
It is trite that he who asserts the existence of a fact must prove that the fact exists. The burden of proof therefore lies on the appellant who asserts that he was entitled to be paid his claim to prove it. See; S. 135, Evidence Act, Igwe v. Alozieuwa (1990) 3 NWLR (pt. 141) 756, Kwasba (Nig) Ltd. v. Okonkwo (1992) 1 NWLR (Pt. 218) 407, Emeka v. State (2001) 6 SC 227, Chris Eigba v. Nigeria Union of Teachers (2006) 48 WRN 28 at 47 & 56.
Where a plaintiff avers certain facts in his statement of claim which the defendant specifically denied in the statement of defence, issues are said to be joined on those facts and the onus of establishing those facts so averred lies on the plaintiff. See; Imoloame v. WAEC (1992) 9 NWLR (pt.265) 303 at 320.
The trial court was therefore right to have concluded that the appellant did not prove that he was entitled to his claim notwithstanding that the respondent did not call evidence nor cross examine the appellant on his oral testimony.
It is for the above and more detailed reasons contained in the lead judgment of my learned brother Ba”aba, JCA that I also hold that the appeal is not meritorious, it is accordingly dismissed. I abide by the orders made including order on costs.