IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDENT AT CALABAR
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED 5TH OCTOBER 2017 SUIT NO: NICN/CA/42/2015
BETWEEN
ENGINEER UDOM WILLIAMS PETER – CLAIMANT
AND
NKRAH MARINE (NIG) LIMITED- DEFENDANT/COUNTER CLAIMANT
REPRESENTATION
No Appearance for the Claimant
EFFIOM AYI with FRANCISCA OKOYE for the Defendant
JUDGEMENT
The claimant in this case brought this suit on the 12th day of August 2015 vide a complaint wherein he sought the following reliefs;
A Declaration that the action of the defendant by relieving the claimant ofhis services indefinitely since December, 2014 without any formalityconstitutes a breach of the terms and conditions of the contract ofemployment as contained in the letter of Employment dated 1st May, 2012and therefore null and void, as well as unconstitutional and unlawful.
A Declaration that the claimant’s employment is still subsisting.
An Order that the claimant is entitled to part of his salaries and all
due allowances from December, 2014 till judgment is given.
The sum of N10,000,000.00 (Ten Million Naira) as general damages for,breach of contract.
After several adjournments, at the instance of the claimant, the court struck out the matter for want of diligent prosecution on the 25th day of May 2016.
The defendant having filed a statement of defence and counter claim, dated 11th day of November 2015, prior to the striking out order by this court was however allowed to prove same.
The defendant/counter clamant claimed against the claimant/respondent as follows:-
1) $23,7862 special damages for the repair of the bow thruster.
2) N770.000 special damages for the repair of the gear box.
3) $472,500 special damages for the loss of contract with Mobil Producing Nigeria Unlimited.
SUMMARY OF FACTS
It is the case of the defendant that the claimant was employed as a chief engineer, upon a false representation of the claimant to be a professionalengineer and fraudulently tendered to the defendant, a certificate of competence, to which they discovered to be forged. The attention of the claimant was however drawn to the alleged forgery, the claimant reproduced another certificate.
Meanwhile, the claimant was engaged and sent to Singapore to take delivery of the defendant’snewly built vessel (MV QUEEN of Calabar). Due to the incompetence of theclaimant at work, according to the defendant, which caused avoidable damage to the defendants’ vessel to thetune as stated in the defendant’s counter-claims, the defendant again began averification of the claimant’s second certificate with the issuingbody (Nigerian Maritime Administration and Safety Agency, NIMASA).
Unfortunately and quite regrettably, it was discovered that the second certificateNo 003592 presented by the claimant was forged and actually belonged to one MrEnesiAdinoyi T. The claimant was expressly informed of this fact and being unableto give a satisfactory response, his employment was terminated and he signed off inDecember, 2014. The claimant appealed via his e-mail messages of Monday,February, 23, 2015 for the termination to be rescinded oncompassionate grounds. This appeal was rejected owing to the avoidable damage suffered by the vessel as a result of the claimant’sfalse representation and incompetence and the defendant’s loss of contract withMobil Producing Nigeria unlimited.
TRIAL AND EVIDENCE.
After several adjournments at the instance of the claimant to enable him prove hiscase, his claims were struck out on the 25th day of May, 2016 leaving this court with the defendants counter claim.
The defendant/counter claimant through one Bishop EwamaTuku (Esq) testified onOath on the 18th day of July, 2016. Adopted his statement on oath which wasmarked Exhibit DC 1 and tendered nine (9) other exhibits marked Exhibits DC 2 -DC 10) respectively.
This matter was however severally adjourned for cross examination with hearing notices served on the claimant, yet the Claimant was unable to make any input, nor defend the counter claim, irrespective of the hearing notices, served on him.
FINAL ADDRESSES.
DEFENDANT
In their final written address, Learned counsel to the defendant , formulated a lone issue for determination, which is;
“whether from the totality of the facts before this honourable court, the defendant/counter claimant has made out a case to be entitled to the judgment of this honourable court as per her counter claim filed on the 12th day of November, 2015″,
ARGUMENT
In resolving the above issue submitted for determination. Learned counsel, on behalf of the defendant, found it imperative to note the following;
- That the claimant’s claim before this honourable court as demonstrated on his statement of facts filed on the 12th August, 2015 were struck out on the 25th May, 2016 for lack of diligent prosecution.
- That the defendant/counter claimant’s claims as set out in her statement of defence/counter claim filed on the 12th of November, 2015 were challenged, undisputed and materially uncontroverted.
On that note, Counsel submitted that the failure of the claimant to file areply/defense to the defendant’s counter-claim to dispute, discredit and challengesame is fatal and such omission, refusal or neglect implies admission of the claimsof the defendant/counter claimant. On the consequences of not filing a reply to the statement of defence/counter claim, learned counsel to the defendant/counter claimant, referred the court to thecase of Balogun v E.O.C.B (Nig) Ltd (2007)5 NWLR (Pt1028) 584 @ 600 Para E-F where Okoro JCA reiterated this settled position of theLaw as follows:
“All matters not denied in pleadings whether raised in the statement of claim or statement of defence are taken as admitted”.
Counsel also reffered this court to the decision of the Supreme Court in the case ofOranezi v Chris Ngige (2014) All FWLK (pt 760) pg 1350 pt 1380-1381 where it was held that;
“where a defendant fails to file a defence, he will be deemed to have admitted the claims or reliefs in the statement of claim except the paragraphs of the statement of claim are notoriously false to the common knowledge of the court like 10th of July is Nigeria’s Independence Anniversary. Such paragraph is inadmissible because of the obvious untruth”. The net effect of the failure to file pleadings is that the averment of the claimant (in the instance case counter claimant)in his pleadings stands unchallenged and are deemed admitted and established”.
Applying the above principle to the instant case, learned counsel submitted that the legal and practical implicationof the claimant’s failure to file a reply to the defendant’s statement of defenceanddefence to counter claim is that the defendant counter claim has been proved andestablished.
He however urged this court to act and pronounce on it by granting thedefendant/counter claimant’s reliefs as demonstrated in his counter claim andfurther recited in paragraph 21 of the statement on oath of Bishop EwamaTuku,head of administration and human resource of the defendant.
Counsel further submitted that the defendant/counterclaimant has discharged thepersuasive burden of prove in this case being the party seeking the enforcement ofa legal right to which she claims she is entitled.
He referred the court to Sections 131,132, and 133 of theEvidence Act, 2011 , as well as the case of SonghainLimited v UBA (2004) ALL FWLR (pt 189) 1244 @ 1258.
In conclusion, Learned counsel urged this court to grant thedefendant/counterclaimants reliefs, the same being admitted by the claimant by his failure, neglectand refusal to disprove, contradict and deny same despite having been givencountless opportunities to do so.
COURT
Having heard the Defendant/Counter Claimant, in his attempt to prove his counter claim, and also gone through all the processes, filed by the said defendant, as well as the exhibits, tendered and admitted before this court, and also the written submissions of Learned Counsel, although the claimant/respondent, was unable to enter any defence to the said counter claim, it is however my considered view that the issue below, aptly suits for determination in this case, which is;
Whether the Defendant/Counter Claimant has been able to prove his counter claim, as to be entitled to the reliefs sought thereat.
It is trite law that the standard of proof expected in civil cases, are based on Balance of Probabilities, and preponderance of evidence. This position of the law should be likened to a nursery school rhyme, such that even a first year law student should be aware of it, and as such I don’t need to supply any authority to that effect.
That said, it is pertinent to point out that when deciding civil matters, the court puts the evidence of both parties, on an imaginary scale, and weighs them, in other to come to a just conclusion on the matter or issue in question. At this point, I must state, that there is no evidence tendered by the respondent, for the court to weigh, alongside that of the counter claimant.
Flowing from the above, and same being my guiding principle, we now have to take a look at the evidence adduced by the counter claimant.
The Defendant, in their sworn witness statement on oath, deposed to by one Bishop EwamaTuku (Esq), on their behalf, alleged that the claimant was employed on a false qualification, and was incompetent to perform the duties, to which he was employed. This fact remained uncontroverted by the claimant, even though there is no document before me which supports same. It is trite law that depositions in an affidavit, in the absence of any counter affidavit challenging same, are deemed to be admitted as true and established and in the instant case, the fact that the claimant was employed on false qualification is deemed admitted by the claimant/respondent, as true and established, and I so hold.
Going further, the defendant alleged that due to the false qualification and incompetence of the claimant, the Defendant made huge sums of expenses, for repairs of the bow thruster and gear box of a vessel owned by the defendant and purportedly spoilt by the claimant while in the employment of the defendant. Again, this is unchallenged, and uncontroverted. To support this averment, Exh DCC 2, DCC3, DCC 6, and DCC7, were tendered and admitted by this court.
However, I am not satisfied with the Defendant/ Counter claimant on the issue of loss of contract she had with Mobil Producing Nigeria Unlimited, as there is nothing before me to prove same.
Having looked at the evidence generated and adduced by the defendant, which the claimant did not in any way challenge by any counter affidavit or documentary evidence, it is however my view that same are deemed by this court to be admitted, and established. See the case of UDUNSI VS BAMGBALA (1998) 1 NWLR (PT. 345) 641 @663; CONSOLIDATED RESOURCES LTD VS ABOFAR VENTURE NIG LTD (2007) 6 NWLR (PT. 1030) PG 221.
This court, based on the reasons discussed above, is minded to answer the lone issue earlier formulated in the positive, and in favour of the Defendant/Counter Claimant.
From all that have been said above, the Judgment of this court is as follows;
Counter Claims 1 and 2 succeeds in its entirety.
Counter Claim 3 fails.
The court hereby orders as follows;
1) AN ORDER for the Claimant to pay the defendant, the sum of $23,7862as special damages for the repair of the bow thruster.
2) AN ORDER for the Claimant to pay the defendantN770.000 as special damages for the repair of the gear box.
Judgment is entered accordingly
……………………………….
HON JUSTICE M. N. ESOWE
PRESIDING JUDGE, CALABAR DIVISION.
