IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.
DATE: 26TH FEBRUARY 2019 SUIT NO. NICN/LA/186/2016
BETWEEN:
- CHRISTIAN OKAFOR – CLAIMANT
AND
GLOBAL SCANSYSTEMS LIMITED – DEFENDANT
Representation:
M J Unaeze appears for Claimant
No representation for Defendant.
JUDGMENT
Introduction and Claims:
On 17th March 2016, Claimant commenced this suit via the General Form of Complaint accompanied by the Statement of Facts, List of Witnesses, Witness Statement on Oath, List of Documents and Copies of the Documents. Claimant claims against the Defendant as follows:
AN ORDER to the Defendant to pay to the Claimant the sum of N3,485,810.02. (Three Million, Four Hundred and Eighty Five Thousand, Eight Hundred and Ten Naira Two Kobo Only) being accumulated wages, salaries, allowances, leave grants and severance benefits from the 1st August, 2014, to the 29th September, 2015, being special damages.
ALTERNATIVELY
The sum of N813, 435.33 (Eight Hundred and Thirteen Thousand, Four Hundred and Thirty Five Naira Thirty Three Kobo) only being the sum of(sic) agreed by the Defendant to be due to the Claimant pursuant to the letter of cessation of contract/employment dated the 29th September, 2015, issued to the Claimant by the Defendant as special damages.
PARTICULARS OF SPECIAL DAMAGES
- 4 months outstanding salaries (i.e. May-August, 2015) 515,085.33
- Outstanding Deductions from July 2014 August, 2015. 298,350.00
TOTAL 813,435.33
The sum of N5,000,000.00 (Five Million Naira) being general damages for breach of contract of employment, detention of the sum as stated in relief B above and the cost of this suit.
Defendant entered no appearance, nor was any process filed on its behalf. An order for substituted service was made on the 20th of May 2016 for Defendant to be served by pasting/posting the process on the entrance gate of the Defendant at No. 33 Ikorodu Road, Jibowu, Lagos, being the principal place of business of the defendant. The case was adjourned severally to ensure that Defendants were served. Service was also made on Fortress Solicitors who are Counsel for Defendant in other suits involving Defendant before the National Industrial Court and they received such services without hesitation. Service continued to be made both on Fortress Chambers and on the Defendant, per the order of substituted service.
Trial commenced on the 9th of May 2018. On that day, Claimant gave evidence for himself and tendered five documents which were admitted and marked as follows:
- Letter of offer of employment dated 01/8/2014. – Exhibit C1
- Pay slips for the months of December 2014, November 2014,
January 2015, and February, 2015. – Exhibit C2
- Letter of cessation of contract/appointment dated the
29th September, 2015. – Exh.C3&C3A.
- Claimant’s statement of account with bank Account
No. 0167333460. of Guarantee Trust Bank [GTB]. – Exhibit C4
- Claimant’s Solicitor’s letter dated 9/11/2015 – Exhibit C5
The case was adjourned to 25th June 2018 for Defendant to cross-examine the witness. Hearing notice was issued on the Defendant but the Defendant still failed to attend Court to cross-examine the Claimant whereupon Defendant’s right to cross-examine was foreclosed in accordance with Order 38(3)(2) of the Rules of this Court. The matter was thereafter adjourned for Defence. On 25/10/2018 slated for Defence, Defendant again failed to be in Court. The matter was adjourned for parties to file their final written addresses. Hearing notice was again issued to the Defendant. Defendant did not file any written address. On 15th January, 2019, Claimant adopted his final written address, and the Court adjourned for judgment.
Facts of the Case:
The Claimant was employed by the Defendant on the 1st of August, 2014, as an Information Computer Technology Officer; and subsequently confirmed. Either party is to determine the employment by a one month notice or one month salary in lieu of the notice. The Defendant determined the appointment without the payment of one month salary in lieu of notice. It is Claimant’s case that the Defendant consistently deducted monies for tax (PAYEE) and pensions without remitting same to the tax officers and the pension Board neither was the Claimant given any tax return nor tax certificate. With the commencement of a new salary package on 1st June, 2013, the Claimant noticed discrepancies in the amount paid to him. He made several oral representations to the accounts department but the Defendant did nothing. On 29th September 2015, Claimant was issued with a letter of cessation of contract/appointment by the Defendant. Claimant alleges that the said letter of cessation of contract was back-dated to 31st August, 2015, despite the fact that the Claimant had worked for the months of August and September, 2015. Claimant states that by the contents of the termination letter, no definite day/date was stipulated for the payment of the Claimant’s wages. Claimant states that Defendant has failed to credit his salaried bank account as usual and this has caused him great hardship and financial embarrassment.
Submissions of Counsel:
The Claimant in his Final Written Address raised the following lone issue for determination:
- Whether on a balance of probability, the Claimant has proved his case to be entitled to the reliefs claimed?
Before noting Claimant’s arguments in addressing the issues raised, I need to point out that Counsel in the said written address, gave a ‘Brief of Statement of Facts’. In it, Counsel stated facts that were neither in the statement of facts nor in Claimant’s evidence. For instance, Counsel stated that:
Nevertheless, the Defendant vide a letter dated 1st June, 2013 renewed the employment of the Claimant and the Contract of employment. The new compensation package was stated therein. It was also stated that the terminal benefits on the old contract was being computed and would be paid to the Claimant within the period of the new contract. The Defendant did not terminate the said old contract but continued to treat the contract as an on-going one.
Upon commencement of the new salary package on 1st June, 2013, the Claimant noticed with utter dismay the discrepancies in the amount paid to the Claimant as stated in the pay slip issued to the Claimant.
When the Claimant observed that, He made several oral representations to the account department but nothing was done.
I also note that the Claimant’s and other staffs’ letter dated 11th September 2015, though listed on the list of documents was not tendered in evidence.
On the issue raised for determination by the Claimant, Counsel argued that for a Claimant to succeed in an action for breach of contract of employment, he must establish not only that, there was a breach but also that there was in existence an enforceable contract which was breached. He refers to Best (Nig) Ltd v Blackwood Hodge Nig. Ltd & Anor (2011) LPELR – 776 (SC) and Baliol (Nig) Ltd v. Navcon (Nig) Ltd (2010)LPELR -717(SC)P.17,para B. He then submits that the Claimant has through the exhibits, the statement of claim, and oral evidence, proved existence of an enforceable contract of employment with the Defendant; and that there is a breach of the written terms of the said contract of employment. He further submits that the Claimant has proved the accumulated wages, salaries, allowances, leave grants and severance benefits.
Claimant argued that the consequence of the fact that Defendant did not file any defence is that the evidence adduced by the Claimant remains unchallenged, un-contradicted and uncontroverted. He refers to Majekodunmi & Ors v. Ogunseye (2017)LPELR – 42547 CA where the Honourable Court per TSAMMANI, JCA held thus that:
It is also on record that the Respondent after entering appearance, did not file any defence nor did he cross-examine the appellant’s witnesses. The consequence in law is that, the evidence adduced by the Appellants remained uncontradicted and uncontroverted.
In such circumstance, only a minimum proof is required. In such a circumstance, the Defendant will be deemed to have admitted the plaintiff’s claim in the statement of claim. This is based on the principle that where a Defendant disputes the Plaintiff’s claims or case, he must file a statement of defence and lead evidence thereon at the trial.
Decision:
I have carefully considered the processes filed, the evidence led, the written submission and authorities cited in Claimant’s final addresses. I also evaluated all the exhibits tendered. I hereby adopt Claimant’s issue set for determination:
- Whether on a balance of probability, the Claimant has proved his case to be entitled to the reliefs claimed”?
This case is clearly undefended as the Defendant refused and/or failed to enter any defence despite being served the processes and various hearing notices. I therefore agree with Claimant’s argument that his evidence has been uncontroverted. I also agree with Claimant that he still has the onus to prove his case by evidence. As stated in Okonkwo v. Ezeonu & Ors Per BOLAJI-YUSUFF JCA Pg. 7 at Para C-F, cited by Claimant:
The Law is settled that the onus is on the plaintiff to prove his case with cogent and credible evidence. Where a defendant fails to file a defence or lead evidence to rebut or challenge the evidence led by the plaintiff, the onus on the plaintiff is discharged on a minimal proof …”
It is trite that the burden is on a plaintiff to prove his case. To discharge the burden, the plaintiff has to call evidence to prove the facts pleaded. This is because mere averment in a pleading without proof of the facts pleaded in a statement of claim is no proof of the stated facts – Aro v. Aro (2000) 1 NWLR (Pt.649)443.
Though the Defendant led no evidence in their defence in relation to this case, it is the law that judgment would only be given to the Claimant on the strength of his case, not on the absence or weakness of the defence – Balogun v. Labiran (1988) NWLR (Pt.80) 66. As held in Adegbite v. State, (2017) LPELR-42585(SC)
It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B
Also in the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA), the Court of Appeal held that:
It is quite elementary that no Court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all Courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.
In this case, it is Claimant’s testimony that he was employed by Defendant. Claimant proved this by the tendering of exhibit C1 which shows that Claimant was offered employment on August 1st 2014. This evidence is uncontroverted. It is also Claimant’s evidence that he was confirmed. Exhibit C1 in the paragraph provides:
Other conditions:
- The confirmation of your appointment after (6) months’ probation is subject to efficient performance of your duties.
During the probation period, either party will be at liberty to terminate the employment contract without notice. However, upon confirmation, one month notice or one month salary will be paid in lieu of notice.
Though not controverted by Defendant, Claimant did not tender the letter of confirmation which he relied on to state that his employment has been confirmed. In the absence of proof of Claimant’s confirmation, I cannot make any finding relating to Claimant as a confirmed staff. It is the law that in every civil cause or matter, the plaintiff who is the person who will fail if no evidence were produced on either side has the burden of first establishing his assertions. This is the requirement of Section 132 of Evidence Act, 2011. See Enanuga & Ors v. Sampson (2012) LPELR-8487(CA). As stated already, in the absence of evidence of the confirmation of Claimant, this Court cannot engage in speculation and conjecture. See Daily Times v. Skye Bank (2017) LPELR-43539(CA)
In Claimant’s 1st relief, he seeks an Order to the Defendant to pay to him the sum of N3,485,810.02. (Three Million, Four Hundred and Eighty Five Thousand, Eight Hundred and Ten Naira Two Kobo Only) being accumulated wages, salaries, allowances, leave grants and severance benefits from the 1st August, 2014, to the 29th September, 2015, as special damages. Claimant has not shown how this sum was arrived at. Exhibit C4 is Statement of Accounts of Claimant’s two accounts with GTBank. It has a credit entry on 16th March 2015 for N128,77.33 being February salary, another entry of the same amount made on 8th June 2015 for an unspecified month, and another made on 10th June 2015 indicated as April salary. Nothing further is said in evidence concerning the credits and non-credits in the statement of account. The Court has not been shown what months are outstanding which forms part of the total amount sought. No evidence was led to show the accumulated wages, salaries, allowances, leave grants and what the severance allowance is. This Relief is vague and has not been proved. It is therefore refused.
Claimant seeks in the alternative, the sum of N813, 435.33 (Eight Hundred and Thirteen Thousand, Four Hundred and Thirty Five Naira Thirty Three Kobo) only, being the sum agreed by the Defendant to be due to the Claimant pursuant to the letter of cessation of contract/employment dated the 29th September, 2015, issued to the Claimant by the Defendant as special damages. In proof of this, Claimant tendered exhibit C3A dated September 29, 2015, which is a letter from the Defendant to the Claimant. It states:
Dear Mr. Okafor,
RE: CEASATION OF CONTRACT/APPOINTMENT
Our letter of September 29, 2015, on the above subject matter refers.
Your total outstanding salaries and deductions amounting to N813,435.33, will be paid to you as soon as the company’s outstanding contract fees are received.
Details are as stated below:
S/N ITEMS AMOUNT
N
- 4 months outstanding salaries
(i.e. May-August, 2015) 515,085.33
- Outstanding Deductions from
July 2014 August, 2015. 298,350.00
TOTAL 813,435.33
This evidence has not been controverted by Defendant, and is therefore taken as admitted and requires no further proof. See Banke & Ors v. Akure North Local Government (2013) LPELR-20893(CA). Also the case of Chukwu & Ors v. Akpelu (2013) LPELR-21864(SC). I therefore find that Claimant is entitled to the alternative relief. I so hold.
With respect to Relief C which is for the sum of N5,000,000.00 (Five Million Naira) being general damages for breach of contract of employment, detention of the sum as stated in relief B above and the cost of this suit. I find no proof of breach of contract, having found no evidence showing confirmation of Claimant’s employment. However, exhibit C3 show detention of the sum of N813, 435.33 acknowledged as due to the Claimant from September 29, 2015 to date. I set and award the sum of N500, 000.00(Five Hundred Thousand Naira) only as general damages for the detention of the sum acknowledged as due to the Claimant. General damages flow naturally from the wrongful act of a defendant complained of – The Shell Petroleum Development Company of Nigeria Limtted v. Chief G.B.A. Tiebo VII (supra) at 466, para. C. per OGUNTADE, JSC.- Owena Mass Transportation Company Ltd. V. IMAFIDON (2011) LPELR-4810(CA) As held by the Supreme Court in Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt.1098) 375 S.C
General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial.
I make no order for cost of this action, as no sum has been proved in that respect.
For avoidance of doubt, Relief A fails. Relief B succeeds. I hereby Order the Defendant to pay to the Claimant, the sum of N813, 435.33 (Eight Hundred and Thirteen Thousand, Four Hundred and Thirty Five Naira Thirty Three Kobo) only.
Relief C partly fails and partly succeeds. Defendant is ordered to pay to the Claimant, the sum of N500, 000.00(Five Hundred Thousand Naira) only as damages for the detention of the sum acknowledged to be due to the Claimant.
The adjudged sums are to be paid not later than 30 days from today. Failure, the said sums shall accrue an annual interest of 20% per annum.
Judgment is entered accordingly.
……………………………………
Hon. Justice Elizabeth A. OJI PhD
