IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 3rd July, 2017 SUIT NO.:NICN/EN/03/2015
BETWEEN:
FRANK E.J. ASOGWA==========CLAIMANT
AND
FEDERAL COLLEGE OFEDUCATION EHA AMUFU======DEFENDANT
REPRESENTATION:
Enechi Onyia, SAN with N.C.Eze Esq., C.I. Enechionyia Esq., C.C. Obiesie (Mrs), Mrs A.N. Afam-Aneke Esq., D.U. Oji Esq. for the Claimant.
Defendants unrepresented.
JUDGMENT
The Claimant in this case took out a Complaint dated and filed on 10thFebruary, 2015 and in his Statement of Claim he sought the following reliefs against the Defendant:
- A declaration that the purported dismissal of the Claimant is unlawful contrary to the Constitution of the Federal Republic of Nigeria, void and of no effect whatsoever.
- Payment of the Claimant’s full salaries from the date of suspension to the date of judgment.
iii. Granting the Claimant promotions in his employment and as when due.
- N10,000,000 (Ten Million Naira) damages for loss of Rights, interests in his employment.
The Complaint is accompanied with list of witnesses, Witness Statement on oath, and copies of documents to be relied upon at trial. The Defendant did not enter appearance or file any processes in defence of the suit.
The Claimant gave evidence on his own behalf on 10th March, 2016 as CW and then tendered Exhibit C1. The Claimant also stated that he was withdrawing his claim of ten million naira damages, as his dismissal had been commuted to retirement. After the evidence of the Claimant the case was adjourned to enable the defendant cross-examine him.
Subsequently, the claimant’s counsel, Enechi Onyia, SAN, applied to withdraw the reliefs numbers 22(i), (iii) and (iv) which application was granted and they were struck out. This leaves the claimant with just relief 22(ii) of the claim for determination. The said claim was further amended to read:
(ii) Payment of the Claimant’s full salaries from the date of suspension to the date of retirement.
The Claimant filed a final written address dated 1st June 2017 on 14th June 2017. The Claimant formulated and argued one issue for the court’s determination, i.e.,
With regards to the Claimant’s claim and evidence which was not controverted, whether the claimant is not entitled to judgment?
Arguing the said issue, learned Senior Counsel for the Claimant stated that the claimant filed this action against the defendant and served same. Hearing Notices were also issued but the defendant refused, neglected and did not deem it fit to enter appearance or to file any process before this Honourable Court and did not however intend to defend this suit. That the Claimant on the 10th of March 2016 adopted his Statement on oath filed on the 10th day of February, 2015.
During the Claimant’s testimony he tendered a letter from the defendant to him dated 28th day of May, 2015 for conversion of the Claimant’s dismissal to retirement and the document was admitted in evidence as Exhibit C1. The Claimant however abandoned other claims except claim no (ii). It was in evidence that the Claimant was an employee to the defendant and served as a Bursar till 2014 when the defendant’s Governing Council wrongfully dismissed the claimant from service.
However, Exhibit C1 which emanates from the defendant reversed the wrongful dismissal to retirement. It was also in evidence that the defendant has refused to pay the claimant his salary entitlement which was due him. That the claimant’s evidence before this Honourable court was neither challenged nor contradicted. By Exhibit C1, the Claimant is entitled to be paid his full salary up to his retirement date and every other benefit.
By S. 20 of theEvidence Act “An admission is a statement, oral or documentary or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstance, mentioned in thisAct”.
It is however important to note that facts admitted need no proof. Going by the provision of section 20 of the Evidence Act the Defendant by Conduct admitted all the facts pleaded by the Claimant in this suit. The defendantwas served with the originating processes in this suit, on the 23rd of April, 2015; hearing notice was issued and served on the 10th day of March 2016; hearing notice was also issued and served along with the record of proceedings of same day on the defendant on 14th day of February, 2017. Upon service of all these hearing notices and record of proceedings on the defendant, it did not appear or file any process for one day.
It is learned silk’s contention that the defendant by conduct has admitted all the facts in the claimant’s claim and did not contradict the evidence of the claimant. That it has always been the law that the burden of proof in civil cases is on the party who asserts a fact to prove same, relying on the case of Onwula vs Uche (2010) 2 NWLR (PT. 1179) p. 582.
He alluded further that the Claimant has led credible and unchallenged evidence of the facts which he desired this Court to give judgment as to his legal right based on Exhibit C1 which is before the Court.
Learned Senior counsel maintained that the Claimant has discharged the burden and standard of proof as encapsulated in Section 131(1) of the Evidence Act.It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged,contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the court in the determination of the dispute before it. He referred to the case of Chabasaya vs Nwasi (2010) 25 WRN 30; (2010) SC 208. He added that the Supreme Court has also illustrated in the case of Matanmni vs Dada (2013) 31 WRN SC 1 that “an unchallenged evidence is deemed to be correct and can be acted upon by the court”. He further referred toAlfontrin vs AG Fed (1996) NWLR (Pt. 475) p. 634.
However, counsel contendedthat an unchallenged and unrebutted fact in pleadings is presumed admitted by the other party as in the instant case.The defendant did not challenge this suit or any fact in the pleadings or rebut any either, the implication of such act is that it is presumed to have been admitted since opportunities have been given to it severally. He referred toAbdulGaniyu vs Adekeye (2013) 6 WRN 107 CA.
That even the evidence of the claimant was not controverted. The Claimant adopted his Statement on oath and it was adjourned severally for the defendant to come and cross examine the Claimant but it did not. It is the law that uncontroverted facts contained in an affidavit are taken to be true and only minimal proof is required of such evidence, relying onAlagbe vs Abimbola (1978) 2 SC 39 at 40.-PSHSMB vs CIOSHWE (2013) 10 WRN 1 SC.
It is also trite and general principle of law that where evidence given by a party to any proceedings is not challenged by the adverse party who had the opportunity to do so, such evidence is deemed admitted and court seised of the proceedings is entitled to act on the unchallenged evidence before it. He referred to the case ofYusuf vs Omokaye (2013) 11 WRN 112 CA.
Learned counsel urged the court to act on the unchallenged and uncontroverted evidence of the claimant to enter judgment in favour of the claimant and grant his claim.
I have carefully considered the processes filed, the evidence led and the arguments and submissions of the learned Senior Counsel for the Claimant. The sole issue for determination is whether in the light of the pleading and evidence the claimant is entitled to his claim? I have to say that this suit is basically undefended. The defendant did not enter appearance and neither filed any other processes in defence of the suit. Therefore it is the principle of minimal proof that should guide the determination of the suit. The facts of the case in summary are that the Claimant was a staff of the Defendant and rose to become its Acting Bursar on 27th day of May, 2007. In the course of the discharge of the duties of his office he came across what he considered to be fraud amounting to the total sum of N34, 903,250.00 (thirty four million nine hundred and three thousand two hundred and fifty naira). The Claimant reported this to the Chairman of the Governing Council of the Defendant, the EFCC, the ICPC and the Police, which after investigations the Cashier involved was arraigned in court.
However, the Governing Council of the Defendant suspended the Claimant and stopped his salary. After sometime the suspension was lifted but he was placed on half salary, from September, 2011 to 2nd February, 2014. The Claimant was then written a letter of dismissal on the 2/2/2014. Furthermore, by a subsequent letter dated 28th May, 2015, the Registrar and Secretary of Council of the Defendant wrote to the Claimant that his dismissal had been commuted to retirement with effect from February 6th, 2014. The Claimant decided to file this action and claim as per amended Claim.
The claim is that the Claimant should be paid his salary from the date of his suspension to the date of his retirement as stipulated in the content of Exhibit C1, the letter of the Defendant communicating the commutal of the dismissal to retirement. That date of retirement is 6th of February, 2014. From his pleading and evidence the Claimant has stated that he was first suspended by a letter dated 24th June 2009. He was further suspended by the Governing Council from 16th day of August, 2011 and from then on the suspension was not lifted until the commuted dismissal on 6th February, 2014. There is nothing placed by the Defendant to disprove these facts. Therefore, on the authority of sections 20 and 131(1) of the Evidence Act, 2011, the Claimant’s case stands proved. In addition to these provisions of the Evidence Act on admissions and discharge of burden and standard of proof in civil cases, there are numerous judicial decisions which have been cited and relied upon by the learned senior counsel, all of which justify the fact that a Claimant succeeds on the basis of a minimal proof where the adverse party fails to offer anything for the court to weight the evidence of the Claimant against. These are Onwula vs Uche(2010) 2 NWLR (PT. 1179) p. 582; Chabasaya vs Nwasi (2010) 25 WRN 30; (2010) SC 208;Matanmni vs Dada (2013) 31 WRN SC 1 Alfontrin vs A-G Fed (1996) NWLR (Pt. 475) p. 634; Abdul Ganiyu vs Adekeye (2013) 6 WRN 107 CA; Alagbe vs Abimbola (1978) 2 SC 39 at 40.-PSHSMB vs CIOSHWE (2013) 10 WRN 1 SCand Yusuf vs Omokanye (2013) 11 WRN 112 CA.
The Claimant has shown the fact of his suspension and the fact that his dismissal has been commuted to retirement. Having been retired now, the Claimant is now entitled to all his salaries and allowances during the suspension up to the point of retirement. The learned author, R. Prakash (2007) in his book titled “M.S. NILA’S LAW OF SUSPENSION, published by Eastern Book Company Limited, 4th Edition, New Delhi, pp.168-169”, made the point that when an employee is made
