IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 20th day of May, 2019
SUIT NO: NICN/PHC/120/2018
BETWEEN:
- DOUGLAS TYONGI IORTYER
- CHRISTOPHER HINDAN
- KINGSLEY NDUKWE
- FRANCIS FRANK OGEMDI
(for themselves and on behalf of the
drivers disengaged by the Defendants as
listed in the schedule attached to this writ) ………………………………………………..CLAIMANTS
AND
- POWER ASSETS RESOURCES MANAGEMENT COMPANY (PARMC)
- MR. OBI ORAKWUE…………………………………………………………….…………………….DEFENDANTS
Representations:
Donald Atogbo with Gloria Damien for the Claimants.
U.M. Amajoyi for the Defendants.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 25th of October, 2018 along with a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
Arising from the complaint and statement of fact, the Claimants claims against the Defendants jointly and severally as follows:
- The sum of N78,200,000.O0 (Seventy eight million, two hundred thousand naira) representing the salaries, pension refunds, and bonuses owed the Claimants by the Defendants from July 2015 – October 2016, before their appointments were terminated in October, 2016 by the Defendants.
- N20,000,000.O0 (Twenty Million Naira) as general damages.
iii. The sum of Five Million naira (N5,000,000.00) as professional fee as cost of litigation.
Reacting to the Claims, the Defendants entered appearance on the 8th of February, 2019 and on same date filed a statement of defence along with a list of witnesses and written statement on oath.
Trial of the case commenced on 14th of January, 2019. In opening their case, the Claimants called a sole witness in person of Douglas Tyongi Iortyer as CW1 and he adopted his witness statement on oath marked as C1. Through the CW1, 48 documents were tendered and admitted in evidence as Exhibit C2 (i) – C2(XLvii) and C3.
Arising from the statement of claim and witness statements on oath of the Claimants, the case of the Claimants is that at different times in 2015, the 2nd Defendant employed them as drivers under the company name of MBONNY TECHNICAL SERVICES LTD and their services were later transferred to the 1st Defendant under whose control and authority they were later relieved of their appointments, while some of the Claimants were employed directly by the 1st Defendant. They posited that the Defendants in the course of the employment seconded them to the Port Harcourt Electricity Distribution Company (PHEDC) as drivers although they remained employees of the Defendants. The Claimants further averred that by their letters of employments, they were entitled to N60,000 as monthly salaries and by the same letter, they were entitled to be given one month notice or salary in lieu where their employment is to be terminated. They contended that the Defendants did not give them notice hence they are entitled to one month salary in lieu of notice. They also contended that the Defendants defrayed part of the salaries owed the Claimants but failed to pay two (2) months salaries of September and October, 2016, which amounted to N120,000.00 (One Hundred and twenty thousand naira) in addition to the one month salary in lieu of notice thereby making it N180,000.00 (One Hundred and eighty thousand naira). They contended that in the course of their employment, they made mandatory pension contributions. However, since their appointment was terminated in October, 2016, the Defendants have failed to make pension refund to them in respect of the pension scheme they made contributions to and each Claimant is entitled to the sum of N240,000 (two hundred and forty thousand naira). They added that the Defendants also failed to pay overtime bonuses to the Claimants in the course of their employment in the sum of N500,000.00 (Five hundred thousand naira) each.
During cross examination, CW1 posited that the Defendants stopped them from work in October 2016. He stated that they were employed in batches and not at the same time. He maintained that he does not know everything that applies to the employment of other Claimants. He added that his salary is N60,000 and subject to deductions of income tax and contributory pension. He confirmed that the Claimants have taken up jobs with PHEDC immediately after their employment ended and that some of the Claimants wrote letters stating that they are leaving.
Upon re-examination, CW1 posited that he and other Claimants were disengaged at the same time.
Upon the discharge of the CW1, the case of the Claimants was closed while the Defendants opened theirs by calling one Obinna N. Chukwu as DW1. The said DW1 adopted his witness statement on oath which was marked as D1.
Arising from the statement of defence and witness statement on oath, the Defendant admitted that some of the names listed by the Claimants are the employees of 1st Defendant but not the 2nd defendant. They added that some of the names on the list are duplicated which increased the names to 85 while the 73rd name was never an employee of the Defendants. The defendants admit that the Claimants whom were their employees were rightly seconded to PHEDC and that their salaries was N60,000.00 monthly. They however posited that by the letters of employment, either party is at liberty to terminate the employment with one month notice and in this case some of the employees terminated their employment in writing while others simply went away without leave as some directly took up jobs with the PHEDC. The Defendants deny owing salaries and stated that while at a point there was a slight issue of unpaid salaries but same was resolved except for those who left without giving notice whose salaries were cancelled out of the unpaid salary in lieu of notice. The Defendants also deny owing the Claimants or anybody pension. With regards to claim for overtime bonus, the defendants posited that the practice as regards overtime work and payment as it relates to 1st defendant’s work with PHEDC is that once an issue of overtime is called into question, the employee involved will disclose and make full representation with the proper facts and figures about the overtime in writing with a witness in corroboration to the 1st defendant who in turn puts forward the overtime claim to PHEDC for such money to be recovered from PHEDC and paid to the employee. But incidentally, nothing of such was done by the claimants in this case. The defendants posited in conclusion that the case of the Claimant is gold-digging, lacks merit and should be dismissed.
Upon cross examination of DW1, he posited that he manages the project between the 1st Defendant and PHEDC and drivers are part of the project. He posited that he joined the 1st Defendant on 1st of March 2016 and he met some of the Claimants as he joined while other were employed after he joined. He stated that he would not be able to identify the ones who joined after he was employed as they are many. He stated that the 2nd Defendant is the MD of the 1st Defendant. He posited that he did not work for Mbonny Nig Ltd. he stated that he is not in accounts so he doesn’t know the documents prepared for payment of salaries of the Claimants but he was informed by the management that the Claimants have been paid salaries. He stated that he does not have the exact number of the Claimants that resigned. He stated that he was not asked to bring the resignation letters. He also posited that he does not know where the process of payment of overtime is and does not know when pension contribution is paid.
Upon the discharge of DW1, the defendants closed their case and the matter was adjourned for adoption of final written address. The Defendant filed their written address on the 3rd of April 2019 and counsel to the Defendant U.M. Amajoyi Esq. adopted same on the 29th of April, 2019.
Arising from the Defendants’ final written address, counsel to the Defendants formulated a lone issue for determination to wit:
“whether the Claimants have proved their case based on the preponderance (of) evidence for judgment to be entered in their favour.”
In arguing the lone issue, counsel contended that the law is that whoever desires any court of law to deliver judgment in his favour as to any right or liability dependent on existence of facts which he asserts must prove that those facts exist. He cited section 131 of the Evidence Act 2011 as amended and the case of ARASE V. ARASE (1981) 5 SC.
Counsel added that “the averments in pleadings must be proved by evidence, except where they are admitted by the other party and cited the case of NIGERIA ADVERTISING SERVICES LTD & ANOR VS. UNITED BANK OF NIGERIA PLC (2005) All FWLR (Pt. 677) page 275 at 277 Ratio 3.
He contended thereon that in the instant case, the Claimants averred in their pleadings that the Defendants owed them salaries, terminated their employment without proper notice or salary in lieu of notice, refused or neglected to make pension refund to them as well as owes them overtime payment. He added that the Defendant vehemently denied these allegations in concrete terms, thereby squarely and stoutly rooting the burden of proof on the Claimants.
Counsel further contended that the Claimants have failed woefully in discharging the onus of proving the assertions in their pleadings particularly as the uncorroborated testimony of Claimants’ CW1 was discredited during cross examination. He cited the case of IDESOH V. ORDIA (1997) 3 NWLR (Pt. 491) 17 at 27; SALUBI V. NWARIAKU (1997) 5 NWLR (Pt. 505) 442 at 473.
Counsel further posited that the claims of the Claimants fall within the realm of special damages which must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence, and without such proof, no special damages can be awarded. He cited the case of TAYLOR VS. OGHENEOVO (2012) 13 NWLR (Pt. 1316) 46 at 65 paragraph C — D and GARBA VS. KUR (2013) 22 NWLR (Pt. 831) 280.
Counsel submitted in addition that Special damages have to be strictly proved and if various items are claimed for, the plaintiff is entitled to be awarded any of those items of which sufficient evidence is available even if he is not able to prove all the items. He added that where a plaintiff sets out to adduce evidence in proof of the special damages claimed by him and the evidence being deficient or unsatisfactory is rejected by the court, that should put an end to that claim as the trial judge is not entitled to embark upon his own assessment of the special damages using his own conceived parameter in place of evidence. He cited the case of GANIYU BADMUS & ANOR. v. A. 0. ABEGUNDE (1999) 71 L.R.C.N page 2912 at P2925 Ratio 1 S.C.
Counsel concluded that based on the preponderance of evidence, the claimants have failed to place sufficient evidence to warrant judgment in their favour and cited the case of ELIAS v. OMO — BAVE (1982) 5 S.C. 25. He also urged the court to dismiss the Case for lack of sufficient evidence.
Reacting to the final written address of the Defendants, the Claimants filed their final written address on the 3rd of April, 2019 and counsel to the Claimant, Donald Atogbo Esq, adopted same on the 29th of April, 2019.
Arising from the final address of the Claimants, counsel to the Claimants formulated two issues for determination to wit:
- Whether, the statement of defence, filed by the Defendants is competent having not being sealed with the legal practitioner’s seal?
- Whether, on the preponderance of evidence led, if the claimants are not entitled to the reliefs sought.
In arguing issue one, counsel posited that it is the law that every legal practitioner entitled to practice in Nigeria must affix his seal to any process authored by him and for use in court. He cited the case of SARKIN YAKIN BELLO VS SENATOR BAGUDU (2015) 17 NWLR (PT. 1491) PG. 288 and submitted that the defendant’s statement of defence dated 7th of February, 2019 and signed by one R.C. EZE, Esq. of Anyim Chimaroke and Associates is incompetent having not been sealed with the NBA seal as required by Law and same goes to the foundation of the defendant’s case.
Counsel added that since the said process being relied upon by the defendant does not comply with the Law, it goes to show that the defendant has no defence before the honourable court.
With regards to issue two, counsel contended that the Claimants in proof of their case called one witness and tendered Exhibits (2 -XLVII) which is their employment letters and cited the case of OSAFILE VS ODI (1990) SC (PT.11) PG.1 @ 11 R. 5-10.
Counsel posited that the Claimants were able to succinctly put forward their case without any contradiction while it was the defendants who was prevaricating without putting up a credible defence as their sole witness contradicted himself severally. Counsel restated the testimony of DW1 and highlighted what he considered to be contradictions from the said testimony in relation to staff management; when DW1 joined the 1st Defendant as against when the Claimant joined; evidence relating to Mbonny Technical Services and Payment of Claimants’ salaries.
Counsel contended that that a calm review of the Defendant’s pleadings and the evidence led, particularly the evidence elicited under cross examination by their sole witness shows the weakness of the Defendant’s case and the defence put forward could not dislodge claimant’s case. He cited the case of ITA EFFIONG EKANG VS THE STATE (2001) 11 NWLR (PT. 725) PG. 1 @ 34.
Counsel further posited that the Claimant fulfilled the requirement of the law in proof of their claim while the Defendants failed to prove the case they had made out in their pleadings. He added that the failure to lead credible evidence to prove their pleadings had damaged their defence.
Counsel also contended that the Defendants are bound by their pleadings which contained facts that could not be substantiated and Counsel’s written address cannot take the place of pleadings and evidence. He cited the case of NIGER CONSTRUCTION C-ID VS OKUGBENI (1987)4 NWLR (PT. 67) PG. 787 @792.
Counsel concluded by urging the court to discountenance the arguments of Defendants’ counsel and resolve the issue in Claimants’ favour including granting the reliefs sought.
By way of reply on point of law, while adopting their final address, counsel to the Defendant cited case of Emechebe v CETO INT’L (2018) 11 NWLR (Pt.1631) P.520.
In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the lone issue for determination by this court is to wit:
“Whether having regards to the evidence before this court, the Claimants have proved their case and entitled to the reliefs sought”.
Before addressing the lone issue, I find it appropriate to deal with the contention of counsel to the Claimant with regards to the Statement of defence filed by the Defendant which is alleged to be without the requisite NBA seal. I consider same to be a preliminary issue and should be treated as such outside the lone issue formulated above.
Counsel to the Claimant through the Claimant’s final written address had contended that the statement of defence filed by the Defendants dated the 7th of February, 2019 is without the NBA seal of the Legal practitioner as required by law, therefore, the said statement of defence is incompetent and should be discountenanced by the court.
Reacting to the forgoing contention, counsel to the Defendant cited the case of Emechebe v CETO INT’L (2018) 11 NWLR (Pt.1631) P.520.
In resolving the foregoing contentions, I have taken a look at the said statement of defence dated the 7th of February, 2019 and filed on the 8th of February 2019 and find that indeed there is no legal practitioner’s NBA seal of the said process.
The question that naturally arises is what is the effect of the absence of a legal practitioner’s NBA seal on a process filed before this court? There is no gainsaying that this issue of the effect of failure to append the NBA seal on processes filed before courts has been variously dealt with by the appellate courts. The origin of the requirement is the provision of Rule 10 of the Rules of Professional Conduct, 2007 which provides that:
(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department or Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If, without complying with the requirements of this rule a lawyer signs or files any legal document as defined in sub rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed.”
As rightly cited by counsel to the Claimant, the Supreme Court had course to consider the foregoing provisions in the case of YAKI & ANOR v. BAGUDU & ORS (2015) LPELR-25721(SC); (2015) 18 NWLR (Pt.1491) 288 SC. In the said case, the court pronounced on the effect of failure to affix on a document, a seal and stamp approved by the Nigerian Bar Association for legal practitioners who sign and file such documents in their capacities as legal practitioners.
Although Counsel to the Claimant quoted certain portions of the judgment to come to the conclusion that the statement of defence which has no seal is incompetent. I must point out that that is not the conclusion reached by the Supreme Court in the said case. Rather, the court held that:
“What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that “… the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) SC 521… The document, in terms of the rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the court.” Per NGWUTA, J.S.C. (Pp. 6-7, Paras. F-E)
From the foregoing, it is more than obvious that the Supreme Court stated that the said process is not incompetent but is deemed not to have been properly filed. The implication of which is that the Defendant can regularize it by simply applying to the court either orally or formally to regularize the process by affixing the missing seal.
Perhaps learned Counsel to the Defendant failed to appreciate the holding of the court in the case of Yaki v Bagudu (supra) upon receipt of the Claimant’s Final address wherein Counsel to the Claimant raised the issue of failure to append the seal. The Claimants’ final address was filed on the 3rd of April, 2019 at about 2:50pm, a little over 4 hours after counsel to the Defendant filed his written address. This means that from the 3rd of April, 2019, Counsel to the Defendant had the opportunity of appreciating the said authority and complying with same by making an application for regularization of the process before the date fixed for adoption of final written address which was 29th of April, 2019. Rather than making application to regularize, counsel to the Defendant merely referred this court to the case of Emechebe v CETO INT’L (2018) 11 NWLR (Pt.1631) P.520.
I have considered the case cited by learned counsel to the Defendant, the case is distinguishable from the instant case as the issue in the case cited has to do with the counsel in that case affixing an expired seal. In fact, the court in the said case reiterated that failure to append seal is an irregularity and the process is not void. This means from the case cited by counsel to the Defendant, he was hinted as to what to do, yet he failed to do same.
Consequent upon the foregoing, it is the holding of this court that the statement of defence filed by the Defendant on the 8th of February, 2019 which does not bear the mandatory NBA seal, is irregular having not been properly so signed and filed and upon failure of the Defendant to apply for regularization, the said process remains irregular and is discountenance for the purpose of this judgment.
Having said that, I then turn to the sole issue for determination which is “whether having regards to the evidence before this court, the Claimants have proved their case and entitled to the reliefs sought”.
In addressing the sole issue, I reckon that in the event that the statement of defence put up by the Defendant is not to be given cognizance, it remains the obligation of the Claimants to prove that they are entitled to the Claims sought. This is because facts stated in pleadings which are not backed by evidence goes to no issue.
In earning their Claims, the Claimants are to succeed on a preponderance of evidence in view of the burden of proof which they bear. For avoidance of doubt, it is the position of the law that the burden of proof is on the party who would fail if no evidence were adduced on either side. For want of emphasis, the court in the case of OLUDE v. ADEESO (2015) LPELR-25587(CA) held that:
“Further to the foregoing Section is Section 133 (1) which dictates the party on whom the burden of proof lies. I reproduce herein below Section 133 (1) of the Evidence Act.
“In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading”.
It therefore suffices to say that in civil cases, the phrase “Burden of Proof” has two distinct connotations. The first is that it may mean the burden of proof as a matter of law and pleadings. This is called the legal burden – See Kala v. Potiscum (1998) 3 NWLR (Pt. 540) 1. This first condition has been satisfied by both parties in that pleadings were settled and the matter was instituted in compliance with the law. The second aspect is the burden of proof which would come by way of evidence. This is what is referred to as Evidential Burden – See the cases of Ezemba v. Ibeneme (2004) 7 SC (Pt. 1) 45, Daodu v. N.N.P.C. (1998) 2 NWLR (Pt. 538), Itauma v. Akpe-Ime (2000) 7 SC (Pt. 11) 24, Audu v. Guta (2004) 4 NWLR (Pt. 864) 463 and Mani v. Shanono (2006) 4 NWLR (Pt. 969) 132. It is trite that this onus of proof placed on the plaintiff never shift until he has discharged the burden then the onus would now shift on the defendant to defend what has been asserted. See the cases of Iman v. Sheriff (2005) 4 NWLR (Pt. 914) 80 and Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65.” Per ONIYANGI, J.C.A. (Pp. 22-23, paras. C-D).
With regards to the standard upon which the burden is to be discharged, the court in the case of UBN PLC. v. ONUORAH & ORS. (2007) LPELR-11845(CA) held that:
“The standard of proof in civil cases is on the preponderance of evidence. It is incumbent on a party who is claiming a relief against his opponent to prove what he asserts, for he has to provide good and credible evidence to discharge the burden of proof placed on him by law.” Per OMOLEYE, J.C.A (P. 29, paras. C-F)
In view of the foregoing, what necessarily follows is to evaluate the evidence placed before this court by the Claimants in support of their claims and in relation to the assertions made against the Defendants.
For avoidance of doubt, the Claims made by the Claimants is for unpaid salaries both for work done and in lieu of notice of termination, unpaid overtime bonus and refund of pension contribution. In addition, the Claimant seeks general damages and cost of action.
The Claim for unpaid salaries, refund of pension contribution and overtime bonus are without doubt special damages which are to be specifically pleaded and strictly proved. In this regard, the court in the case of Egom v. Eno (2008) 11 NWLR (Pt.1098) held that:
“In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A)
Before I proceed to evaluate the evidence placed before this court by the claimants, I also find it apposite to reckon that this suit was instituted in representative capacity as the four named Claimants instituted this suit on behalf of themselves and other drivers disengaged by the Defendants as listed in the schedule attached. The said attached list has 85 names and the claims of the Claimants is computed for the said 85 persons listed.
The foremost incongruity with the claims of the Claimants as constituted and computed is that 7 names on the schedule of listed names attached are duplicated. The names of Sunday Bassey Daniel on column 17 and 76, Orji Riman E. on column 19 and 77, James S. Edet on column 20 and 78, Iorwuse Yershima Mark on column 21 and 79, Idongesit Edem Umoh on column 22 and 80, Aso Bassey Ijo on column 23 and 81 and Desmond S. Ukpon on column 24 and 75.
The implication of the forgoing is that the Claimants are not 85 but 78 upon the subtraction of the duplicated names. That said, I must state that to come to a conclusion that the Claimants are 78 can only be reached if this court is empowered in the first place to carry out such deletion of the other 7 names on the assumption that they are mere duplications. However, it is trite that courts do not speculate nor assume. The Court of Appeal in the case of IBACEHM LTD. v. VISA INVESTMENT & SECURITIES LTD. & ANOR. (2009) LPELR-4273(CA) posited that:
“The law is trite and needless to emphasize that the court is not to speculate and make assumptions as that would amount to straying on a frolic of its own. “Per OGUNBIYI, J.C.A. (P. 27, para. G).
The preclusion of the court from speculating or assuming leaves this court with the question of whether there are 85 or 78 Claimants?
In addition to the forgoing, the facts relating to the claims is simply that the Claimants alleged that the Defendants had their employments terminated while owing them two months salaries for the months of September and October, 2016 and the Defendant having failed to give them a month notice in accordance with the letter of employment, also failed to pay them the salary in lieu of notice. In addition, they alleged that they made pension contributions while in employment which the Defendant did not refund and that the Defendant failed to pay their overtime bonus. The salaries is put at N60, 000 for each Claimant, N240,000 as pension contribution for each Claimant and N500,000. Upon the computation for the 85 Claimants, the total claim came to N78,200,000.00.
The Claimants regarded the total sum as monies owed and that is the harbinger of the burden to prove that the Defendant is indeed indebted to them to the tune of the computed sum.
In discharging the said burden, the evidence adduced before the court by the Claimants are the letters of employment of 47 of the listed Claimants admitted as exhibits C2 (i) to C2 (XLvii).
I have taken a careful look at the said exhibits, confirming the names of the said 47 persons on the exhibits. I also find that while some of the letters of employment were issued by Mbonny Technical Services Limited, others were issued by the 1st Defendant. The difference is explained in the averment of the Claimant that they were employed under the company name of Mbonny Technical Services Limited before their employment was later transferred to that of the 1st Defendant.
I also find that by the letters of employment, the ones issued under the name of Mbonny Technical Services Limited bears N38,000 as Monthly payment (salary) while those issued under the name of the 1st Defendant bears N60,000 as monthly payment (salary). In addition, some of the letters issued under the name Mbonny Technical Services Limited, have attached to them a notice of salary review from N38,000.00 to N60,000. Eight out of those whose letter of employment came under the name Mbonny Technical Services Limited which bears N38,000 as Monthly payment, do not have the attachment of a salary review to N60,000.
The foregoing finding also faces this court with more questions such as where are the letters of employment of other Claimants since there are only that of 47 Claimants before the Court? Also, for the Claimants whose letter of employment reads that their Monthly payment is N38,000.00 and for whom there is no notice of review of salary, do they still claim N60,000 or N38,000.00? If the claim is for N60,000, on what basis is such claim made for those 8 persons, is it simply predicated on the fact that others have the notice of salary review?
I have taken a careful consideration of the testimony of CW1 both on examination in chief and on cross examination and the answers to the forgoing questions are still not found.
In addition to the foregoing, I must point out that Exhibits C2(i) – (XLvii), which are the only set of documents tendered by the Claimants, does not by themselves establish the fact that the Defendant is indebted to the Claimants in respect of the sums claimed, that is notwithstanding the incompleteness of the documents to cover all the Claimants.
The best of what the exhibits did was to establish the fact that the named persons in each of the letter was employed by the 1st Defendant and entered an agreement to be paid certain sum as salaries. Counsel to the Claimant through the written address filed, acknowledged this when he contended that “The Claimants in proof of their Claims tendered their employment letters to show that they were engaged by the Defendants”.
In view of the fact that the letters of employment stated that “salary remittance is done by the Company at the end of a month for the current month into contract staff bank account”, to successfully claim for the salaries that are unpaid, Claimants should have attempted to prove when salary was last paid to them either by pay slips or even by bank statements of the account into which the Defendants usually pay their salaries. That will not only establish the sum, it would also establish when the salary was last paid in respect of each claimant.
Going further, I reckon the contention of the Claimants that their employments were terminated without payment of salary in lieu. There is no gainsaying that the same means of proof for unpaid salaries i.e. pay slip/bank statement, would have also established the fact that the Defendants failed to pay a salary in lieu of notice.
In addition to lack of proof, I reckon that although CW1 during cross examination testified that the Defendants did not give them termination letters, he added that some of them wrote to the Defendants that they are leaving. In other words, some of the Claimants terminated their employments with the Defendants on their own volition, yet, the Claims before the court covers the salary in lieu of notice for all the Claimants as though the employments of all of them were terminated by the Defendants.
It must be said that a contract of employment is personal and what transpired between the employer and one employee cannot be taken to automatically apply to another. In other words, those who left the employment without being properly terminated by the Defendant cannot be absorbed by the those whose employment were terminated by themselves. In view of the foregoing, it is uncertain whose employment was terminated without notice and who amongst the Claimants terminated his/her employment by self.
It must also be stated that although CW1 posited that the Claimants were not given letters of termination, it must be reckoned that the burden of proof of wrongful termination is on the employee who complains of same. The court in AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR. (2010) LPELR-3824(CA) held that:
“It has been firmly established that when an employee complains that his employment was wrongfully terminated, he had the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. Okomu Oil Palm Co. V. Iserhienrhien (2001) 5 NSCQR 802.” Per Odili, JCA (as she then was) (P.23, Paras B-D).
With regards to the claim for overtime bonus, I reckon that the letters of employment issued under the name Mbonny Technical Services Limited does not make mention of Overtime payment/bonus while the second paragraph of the letters of employment issued under the name of the 1st Defendant states that “overtime payment is applicable for work done outside the normal official working hours, Sundays and Public Holidays.” The paragraph makes no mention of any sum and the Claimants did not tender any evidence to prove how the sum of N500,000 accrued for each claimant.
With regards to the Claim of N240,000 as pension refund, while the letters of employment under the paragraph for monthly payment stated to the effect that the sum to be paid to employee per month will be “subject to statutory deductions of income tax and contributory pensions”, no mention is made of the percentage to be deducted particularly for pension contribution. Hence, it is unclear, uncertain and puzzling how the Claimants came about the sum claimed for each Claimant.
On the whole, it is needless to state that the Claims of the Claimant is bereft of evidence and the Claimants are far from meeting the standard of preponderance of evidence in proof of their Claims. It must be stated that the averments of the sums owed without proof remains facts without proof as the pleadings cannot take the place of evidence. The court in the case of Makanjuola v. Ajilore (2001) 12 NWLR (Pt.727)416 posited that:
“It is trite that mere averment in pleadings without proof by evidence of the pleaded facts cannot take the place of the proof required by law and that pleadings are not a substitute to evidence.” Per ADAMU, J.C.A. (P. 32, paras. E-F)
While I reckon that Counsel to the Claimant expended effort at bringing to bear the weakness of the Defendants’ case, it must be said that the Claimants failed to make effort at building their own case as same lacks the strength to stand on its own. The court in NONGU V. LOCAL GOV. SERV. COMM. & ANOR (2011) LPELR-4851(CA) posited in this regard that:
“The general rule is that a plaintiff succeeds on the strength of his case and not on the weakness of the defence. In cases of termination of appointment, the claimant who seeks declaration that the termination of his appointment was wrongful has the onus to prove the terms and conditions of his employment. It is not in principle for the employer who is a defendant to an action brought by the employee to prove this. See Nigerian Gas Co. Ltd. Dudusola (2005) 18 NWLR (Pt.957) 292.” Per ONYEMENAM, J.C.A. (P. 29, paras. C-E).
In view of the foregoing, the court in CHIEF ADEOYE ADIO FAGUNWA & ANOR. V. CHIEF NATHANIEL ADIBI & ORS. (2004) LPELR-1229(SC) posited that:
“It is trite law that where a plaintiff fails to prove his relief or reliefs, the action stands dismissed…” Per Tobi, JSC. It is consequent upon the forgoing that this court finds no hesitation in coming to the irresistible conclusion that the claims for the arrears of salaries, salary in lieu of notice, overtime bonus and pension contribution refund for 85/78 employees all fail for dearth of proof.
Having said that, I must then consider the claim for General damages put at N20,000,000 and cost of litigation sought by the Claimants.
With regards to general damages, the court in the case of SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA) said of the nature of general damages that:
“General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. Stirbug Astaldi Ltd. (1977) 11 – 12 SC and ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288.” Per OMOKRI, J.C.A. (P.28, Paras.E-A).
In view of the forgoing, it is without doubt that the award of general damages in the instant case is dependent on the proof that the Defendants violated the legal rights of the Claimants as general damages is hinged upon the maxim that where there is a wrong, there is a remedy (ubi jus ibi remedium). See BFI GROUP CORPORATION v. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR-9339(SC).
In addition, the court held in the case of SAIDU H. AHMED & ORS V. CENTRAL BANK OF NIGERIA (2012) LPELR-9341(SC) that:
“The law is that the claimant must prove that it was the action of the respondent that led to the loss for which he is seeking recompense. Failure to link the act of the respondent conclusively to the loss for which damages is being claimed can only lead to a dismissal of the claim for damages. Acme Builders Ltd. v. K.S.W.B. & anor (1992) 2 NWLR (pt. 590) pg.288. Victoria Laundry (Winsor) Ltd. v. Newman Industries & anor (1949) @ KB 528 Per ADEKEYE, J.S.C.
In the face of the forgoing authorities, it is clear to all and sundry that the Claimants have woefully failed to prove that the Defendants wronged them in any way. Consequently as the Claimants failed to prove their claims, the claim for general damages automatically fails. The Claimants are not entitled to general damages and same is accordingly refused.
With regards to cost of action, I must state that cost in a suit is in most cases awarded to a successful party in a suit and same is at the discretion of the court. The court in the case of EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) held that:
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wrong party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).
In consideration of the entirety of this suit and in consideration of the fact that the Claimants have failed to prove that they are wronged by the Defendants, the award of cost of litigation is accordingly, refused. Each party should bear their respective cost.
In the final analysis, the sole issue formulated is resolved against the Claimants to the effect that the Claimants, for lack of concrete, cogent, credible and convincing evidence have failed to prove their case on preponderance of evidence and they are therefore not entitled to the reliefs sought.
Consequently, it goes without saying that the case of the Claimants is lacking in merit in its entirety and same is accordingly dismissed.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
