Barrister Jerome Lucky Simon VS Barrister Moses Okosun

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: APRIL 25, 2018

SUIT NO. NICN/LA/78/2016

BETWEEN

Barrister Jerome Lucky Simon-Claimant

AND

Barrister Moses Okosun

(Trading under the Name & Style of Moses Okosun & Co.) -Defendant

REPRESENTATION

The claimant appeared in person.

O. Egejuru, for thedefendant.

JUDGMENT

The claimant commenced this action vide a complaint filed on 12th February 2016. By the statement of facts, the claimant is claiming against the defendant the following reliefs:

The sum of N655,000 (Six Hundred and Fifty-Five Thousand Naira only) being he unpaid outstanding salary from July 2012 to 6th February 2015 with interest at rate of 21%.
The cost of this action.

Accompanying the complaint and statement of facts are the claimant’s written statement on oath, list of witnesses, list of documents and copies of the documents.

In reaction, the defendant filed his defence processes but out of time with a motion on notice praying to regularize the said defence processes. The defendant, however, never moved the said motion. The defendant had filed a preliminary objection as to jurisdiction on the ground that he was not served the originating processes. On record, the Court found that the originating processes were actually served on the defendant and were received by the defendant’s Secretary on 17/2/2016. The preliminary objection was accordingly dismissed on 13th December 2016 and a cost of N300,000 was put on the defendant to be paid to the claimant before the next adjourned date. The defendant did not pay the cost ordered; as such, the defendant was barred from taking further part in the proceedings of this suit (in accordance with Order 38 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017) including the cross-examination of the claimant who testified on his own behalf as CW and tendered Exhibits C1, C2 and C3. Given that the motion to regularize the defence processes was never moved, it is hereby struck out. What all of this means is that the defendant did not defend this action.

At the close of trial, the claimant filed his written address on 4th July 2017. The defendant did not file any written address given that he still did not pay the cost awarded against him on 13th December 2016. This suit is accordingly undefended but this does not absolve the claimant from the burden of proving his case (Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69,Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247 and Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC) especially as what he is claiming for is special damages. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC).

The case of the claimant is that he was employed on an initial agreed monthly salary of N30,000.00 by the defendant from 7th September 2009 up till 6th February 2015 when he stopped work given that the defendant failed to pay him his unpaid outstanding salaries from June 2012 till 6th February 2015. That even though there was no written letter of employment, the fact that the claimant was indeed an employee of the defendant can be ascertained from the contents of Exhibits C1 and C2, and the evidence led in paragraphs 3 to 5 of the statement of facts and statement on oath respectively. That sometime in September 2010, his salary was increased to N40,000.00 monthly upon his letter seeking for salary review as can be seen in Exhibit C1. That shortly after the nationwide subsidy protest in January 2012, the salary was increased to N50,000.00 monthly and has remained so until the claimant decided to stop work with the defendant.

The claimant continued that sometime in July 2012 when the defendant commenced construction work of his house in Lagos, the defendant complained of having some financial difficulties and for that he will not be able to pay full salary for the month including that of secretary but promised to pay off whatever is the outstanding later. That from the records kept in the office by the secretary as directed by the defendant, from July 2012 till 2015, the defendant has been paying the claimant and the other staff part-payments with the understanding that he puts a property (house) on sale and that with the proceeds from the sale he will be able to offset all the outstanding salaries. Meanwhile, that the defendant completed the house he was building, a 19-room duplex in Gbagada where he presently resides, within 3 months and he also acquired for himself a 470 Lexus Jeep; yet he still refused to pay staff salaries. To the claimant, together with his January 2015 salary, as at 6th February 2015 when he stopped work, his total unpaid outstanding salary with the defendant came up to N655,000.00 as contained in Exhibit C2. That the Court will find from the record (Exhibit C3) that January 2015 salary was not reflected because the claimant stopped work on 6th February 2015 and so had no access to endorse the records. That the Court will also find that the claimant even decided to forfeit the six days he worked with the defendant in February 2015. That notwithstanding that Exhibit C2 was duly served on the defendant, the defendant failed to pay the said outstanding sum hence this suit.

The claimant submitted two issues for determination:

Whether from the evidence before the Court and the circumstances of this case, the claimant has been able to prove to the Court with credible evidence that he was an employee of the defendant.
Whether from the evidence led, exhibits tendered and the position of the law, the claimant has been able to prove his case to be entitled to the relief sought.

On issue (i), the claimant referred to paragraphs 3, 4 and 5 of both the statement of facts and the written statement on oath as the unchallenged evidence he relies on for his claim. That the evidence in these paragraphs coupled with Exhibits C1 and C2 suggest that there was indeed an employer and employee relationship between the defendant and the claimant. The claimant went on that a closer look at Exhibit C1 shows that the address on it is care of the same address of the defendant who is also the recipient of Exhibit C1. That the evidence before the Court is that the defendant who acted on the said Exhibit C1 by increasing the claimant’s salary from the initial N30,000.00 to N40,000.00 without any complain is an indication that indeed there was an employer-employee relationship between the defendant and him. That evidence that is not countered is deemed admitted, citing Chief Ufikairo Efet v. INEC [2011] All FWLR (Pt. 565) 203 SC, FAAN v. Wamal Express service (Nig.) Ltd [2011] All FWLR (Pt. 574) 42 at 46, Mrs Oluwaseun Agboola v. UBA Plc [2011] All FWLR (Pt. 574) 74 at 83 and Kopek Construction Ltd v. Ekisola [2010) All FWLR (Pt. 519) 1035, Citing Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki [2003] 7 SC 1, the claimant urged the Court not to be rascally in refusing to act on his unchallenged evidence and give him judgment and then prayed that issue (i) be resolved in his favour.

For issue (ii), the claimant submitted that from the pleadings and the evidence led in support and the exhibits he tendered, there is no doubt that he has proved his claim before this Court as his evidence was not in any way controverted. On Exhibit C3, the claimant submitted that it is the records of how the claimant was paid from July 2012 up to January 2015, showing the dates, amount paid, the balance and cumulative outstanding balance. To the claimant, regarding the issue of admissibility of Exhibit C3, that admissibility is governed by relevancy. That if a document is to be admitted, then it must be relevant, material and competent. That Exhibit C3 might not have any nexus with either of the parties, but the contents have nexus with the fact in issue and as such remains relevant and will certainly assist the Court in no small measure to arrive at a just and fair conclusion. That the content of Exhibit C3 essentially corroborates the uncontroverted evidence before the Court contained in paragraphs 9, 100 and 13 of both the statement of facts and the claimant’s written statement on oath respectively. Again the claimant reminded the Court not to be rascally by referring to Kopek Construction Ltd v. Ekisola. He then went on that Exhibit C3 not being signed cannot render it useless and invalid as that merely borders on technicality, arguing that the era of technicality is long gone, citing Baker v. Hands [2007] EWCA civ 869, Consortium MC v. NEPA [1992] 6 NWLR (Pt. 246) 132 at 142 and Falobi v. Falobi [1976] 1 NMLR 169. That even if Exhibit C3 is irrelevant and so is invalid, there are other sufficient facts and Exhibit C2 before the Court where the outstanding sum can easily be deduced or inferred and ascertained. In conclusion, the claimant reiterated that this suit is undefended; as such judgment should be entered in his favor.

COURT’S DECISION

The claimant is claiming the sum of N655,000.00 being unpaid salaries plus interest at 21% and cost. This makes the claimant’s case one for the claim of special damages. It is for the claimant to, therefore, prove his claim for the unpaid salaries and how he came by the sum of N655,000.00. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. Because the claimant is claiming for unpaid salaries, he must show that he was an employee of the defendant. As Honk Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA puts it, as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is when the employee discharges this burden that the burden shifts to the employer who is then required to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. In proving that he was in an employment relationship with the defendant, the claimant submitted that even though there was no written letter of employment, the fact that he was indeed an employee of the defendant can be ascertained from the contents of Exhibits C1 and C2, and the evidence led in paragraphs 3 to 5 of the statement of facts and statement on oath respectively. A look at paragraphs 3, 4 and 5 of both the statement of facts and written statement on oath will show that the claimant averred about the defendant placing an advert in September 2009 at the Ikeja High Court’s Notice Board, he responded to the advert vide email, he was invited for an interview in consequence of his response to the advert and he was offered employment by the defendant. The problem is that all of these facts, which should be evidenced by some documentary evidence or at least corroborated by some other form of evidence even if oral but from other than the claimant, are all unsubstantiated or not supported by any other evidence. This aside, there is no gainsaying that an employment contract may be oral or by conduct, but even the Labour Act Cap L1 LFN 2004 in section 7(1) stipulates that within three months the employer must give the employee a written statement containing the specified terms and conditions regulating the employment. The claimant is a lawyer. Did he ask for and was refused the written terms and conditions of his employment? There is no evidence before the Court that this was done.

Exhibits C1 and C2, also relied on by the claimant as proof of his employment relationship with the defendant are letters written by the claimant (on the claimant’s letter-headed paper) to the defendant. Exhibit C1 is dated 16th September 2010, while Exhibit C2 is dated 21st April 2015. In particular when Exhibit C1 was written by the claimant, he was still an employee of the defendant as the claimant alleges. It needs to be noted that the claimant by Exhibit C1 resumed work with the defendant on 7th September 2009, yet by 16th September 2010 be had his Law Firm, Lucky Simon Jerome & Associates (the claimant’s Exhibit C1 was written on the letter-headed paper of the claimant), and was in spite of that applying for salary review. The question is: since the claimant’s Exhibit C1 was written on the letter-headed paper of the claimant suggesting that he has his Law Firm although using the defendant’s physical address, how come the claimant was at the same time an employee of the defendant? An employee in the true sense of the word, cannot be an employee and at the same time run his private business in the premises of the defendant who should be his employer. If the relationship between the claimant and the defendant is one wherein the claimant was allowed to take his private briefs but work now and then for the defendant, then that relationship is not one of employment for which this Court has jurisdiction. There is thus no convincing evidence before the Court showing that the claimant was an employee of the defendant to warrant the claim for unpaid salaries. I so find and hold.

Even if there was an employment relationship between the claimant and the defendant, Exhibit C2 dated 21st April 2015 is a letter of demand by the claimant to the defendant for N655,000.00 being the unpaid outstanding salaries from June 2012 to 6th February 2015. Exhibit C2 is written on the letter-headed paper of the claimant although the physical address on it has changed from that used in Exhibit C1. As a letter of demand, Exhibit C2 can only be proof of a demand, not proof of entitlement to what is demanded. It is proof of the demand for outstanding salaries, but not proof of the entitlement to the outstanding salaries; it is not even proof of the salaries themselves. I so find and hold.

In proof of his outstanding salaries, the claimant referred to Exhibit C3. Exhibit C3 is undated, not signed and bears no nexus with either the claimant or the defendant. It consists of entries of sums of money which the claimant argues evidences what the defendant paid to him as his salaries and the outstanding indebtedness of the defendant to him in that regard. I find this argument of the claimant curious. The paper on which Exhibit C3 was written on is a sheet of paper torn off from a notepad made to honour one Mrs Fatomi Olubola Titilayo on her 50th birthday, the kind of takeaway gift item one is given for attending the ceremony. In the claimant’s own words, the defendant completed within 3 months a 19-room duplex in Gbagada where he presently resides and also acquired for himself a 470 Lexus Jeep. For someone who could do this, is it on a torn-off sheet from a notepad that salary entries of an employee would be written on? Secondly, there is nothing on Exhibit C3 indicating who the said payments were made to; nothing also as to who made the said entries. The claimant himself is a lawyer who appeared for himself all through the hearing of this case. Is he in all honesty expecting a neutral person to believe him that the sheet of paper that Exhibit C3 was written on is the kind of paper that salary entries will be made? I must here borrow from James Hadley Chase: “Believe This [and] You’ll Believe Anything”. Thirdly, in Mr. Godwin Agbone v. Nulec Industries Limited unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered on 2nd February 2014, this Court held that it is a notorious fact that salaries are in the main paid and evidenced by pay slips. Exhibit C3 is not such a pay slip or even close to one. Lastly, by Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), it is the law that unsigned and undated document has no evidential value. And Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130 held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. Exhibit C3 is a document that ought to be signed. The argument of the claimant that the requirement of signature for Exhibit C3 is a technicality that can be dispensed with is baseless. Exhibit C3, even by the argument of the claimant, indicates indebtedness, and it is this indebtedness that this suit is about. How can the claimant say that such indebtedness should not be evidenced by the signature of the defendant or his agent? I must note that even the secretary said to have kept Exhibit C3 was not called as a witness by the claimant. There is no other corroborating evidence from anyone conversant with the operations of the defendant to testify that that is how the defendant keeps his indebtedness as to salaries or that Exhibit C3 was actually the defendant’s document. What the claimant called as corroboration is his own write-up as per Exhibit C2. This is nothing different from his sworn deposition. As it is, being unsigned and undated, Exhibit C3 is worthless and has no evidential value whatsoever. I so find and hold. This being the case, the claimant did not prove the indebtedness to him by the defendant in the sum of N655,000.00. I so find and hold. The claimant’s case remains unproved. I so hold.

I cannot end this judgment without a word of two regarding a submission of the claimant. The claimant, citing Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki [2003] 7 SC 1, had urged this Court not to be rascally in refusing to act on his unchallenged evidence and give him judgment. The claimant had cited some case law authorities to the effect that unchallenged evidence is to be deemed as admitted; forgetting that his claim is one for special damages where even an admission is not sufficient to dispense with the burden of proving by credible evidence the claim for special damages. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC). From what I have said all though this judgment, where is the credible evidence of the claimant upon which he hopes for recompense and so is threatening this Court with case law authorities cautioning against judicial rascality? Advocacy is not about citing case law authorities especially when they are irrelevant. Hear the claimant: “As of now any attempt to deviate from the said decision will amount to judicial rascality and serious judicial insubordination”. And then he proceeded to submit that this Court should “hold and accept and act on the unchallenged evidence before the Court and hold that the Claimant has proved with cogent and credible evidence that he was an employee of the Defendant from 7th day of September, 2009 till the 6th day of February, 2015 when he stopped work…” Where is the cogent and credible evidence showing that the claimant is an employee of the defendant? And why would the claimant threaten this Court with the words: “any attempt to deviate from the said decision will amount to judicial rascality and serious judicial insubordination”? Does the claimant think that his threats can give him judgment? The lack of seriousness on the part of the claimant can be seen in his argument that this Court should take judicial notice of the preliminary objection of the defendant on the baseless ground that he was not served the originating summons. That by this act, the defendant dented his credibility given that in truth he was served. How is all of this proof that the defendant is indebted to the claimant in the sum of N655,000, the claim in this suit? Cases are won not on sentiments or emotions, but on proof of the material facts in issue. Counsel must know this.