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: 15th day of January, 2020
SUIT NO: NICN/PHC/122/2017
BETWEEN
Mr. EZE SUNDAY UBA————————————–CLAIMANT
AND
SOJOK ENERGY RESOURCES LTD
- OLUSEGUN AMOO ———————————–DEFENDANTS
Representations:
Uzor Anyalechi with Uche Ogwudu for the Claimant.
No representation for the Defendants.
Judgment.
This suit was commenced by way of a General form of Complaint filed on the 28th of November, 2017 along with a verifying affidavit, statement of facts, list of witnesses, witness statement on oath, schedule of documents and copies of the listed documents to be used at trial.
The suit was originally before the late Hon Justice A. Ibrahim, PhD. before it was assigned to this court sometime in October, 2018.
The suit was initially against one 1st Defendant but upon the matter coming before this Court, Claimant sought leave by way of application to join the 2nd Defendant and upon leave been granted, the Claimant on the 7th of May, 2019 filed an amended Complaint and statement of facts. Arising from the amended Complaint and Statement of fact, the Claimant’s claims against the Defendants are:
- An order of the Honorable Court directing the Defendants to pay to the Claimant the total sum of $14, 600.00 (Fourteen Thousand Six Hundred US Dollars), being the net balance of the outstanding salary entitlement due to the Claimant from the Defendants.
- 10% interest on the judgment sum from the date of judgment till the entire sum is liquidated.
The Defendants failed to enter appearance nor file any process in defence of the case despite the evidence of service on the last known address of the Defendants. It is consequent upon the proof of service that trial commenced in the said suit on the 18th of June, 2019 when the Claimant opened his case with himself being called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1(a) and C1(b). Through the said CW1, 6 documents were tendered and admitted in evidence as C2-C7.
Arising from the amended statement of fact and statements on oath, the case for the Claimant is that he was an employee of the Defendants via a letter of employment dated 10th March, 2015 until 12th February, 2016 when his appointment was terminated by the Defendant. Claimant avers that upon his employment, his job description is that he will work in the Oriental Energy Resources Ltd facility at Onne, Rivers State and one of the agreed conditions is that he will be paid $200 (Two Hundred US Dollars) only per day as a Jetty Dispatcher. He added that while he worked with the Defendants, their relationship was smooth until sometime in February 2016 when the Defendants terminated his employment and the managing director, Mr Olusegun Amoo promised to pay him all his outstanding salary after he has sent in his time sheet for process of the Defendant’s invoice. Claimant averred further that he submitted his time sheet which showed that he worked for 14 (fourteen) days in October, 2015 and 17 (seventeen) days in November, 2015, 15 (fifteen) days in December, 2015, 21 (twenty one) days in January, 2016, 6 (six) days in February, 2016 which amounted to a total of 73 (seventy three) days and the sum of $200 (Two Hundred US Dollars) per day multiplied by 73 (seventy three) days will give a total sum of $14, 600.00 (Fourteen Thousand Six Hundred US Dollars). Claimant averred that he made several demands for the payment of the salary to no avail hence this suit.
Matter was adjourned for cross examination of the said CW1 with the directive that the Defendants be put on notice. Despite the proof of service of hearing notice for the 5th of July, 2019, the Defendants still failed to enter appearance. Consequently, the Defendants were foreclosed and matter was adjourned for defence on the 16th of September, 2019 and later 17th October, 2019 as a last opportunity to defend the case.
Upon the failure to enter defence despite proof of service, the Defendants were foreclosed from entering defence and matter was adjourned to 13th of November, for adoption of final address with a directive that fresh Hearing notice be served on the Defendants.
The directives of the Court was carried out by the service of a hearing notice served by the Bailiff of this court and supported by a letter written on behalf of the Claimant by his counsel which was also served on the Defendant. It is on that note that Claimant proceeded to adopt the final written address which was filed on the 4th of November, 2019.
Arising from the final written address of the Claimant, Counsel to the Claimant Uche Ogwudu Esq., formulated a sole issue for determination to wit:
Whether from the evidence adduced before this Honourable court, the Claimant has satisfactorily shown that it (sic) is entitled to her (sic) claims in this suit.
In arguing the lone issue, Counsel submitted that the Claimant has fully discharged the burden of proof placed on him by law and has thereby established his claim against the Defendants as the law is very clear that he who asserts must prove. Counsel cited the cases of Akande vs. Adisa (2012) 15 NWLR (Pt. 1324) Pg. 538, B.E.G.H. Ltd & 2 Ors vs. U.H.S & L Ltd (2011) 7 NWLR (Pt. 1246) Pg. 247 at,250-252 and the provisions of Sections 131, 132 and 133 (1) of the Evidence Act 2011.
Counsel added that Claimant relied all through his case on documentary evidence and through cogent and credible evidence established his case while he successfully established the nexus between his evidence in this suit and the Exhibits tendered in this suit and thus proved his case.
Counsel posited that the cause of action is found in Exhibits C3,C4(a-e) and C6 and cited the case of Jim Adun v. Amen Osunde & Ors. (2003) 16. NWLR (Part 847) 643 at 668 on the meaning of the word ‘proof’. Counsel also recounted the facts deposed in the Claimant’s witness statement on oath as CW1 while contending that the Claimant was not cross examined on the said facts thereby making the evidence of the Claimant unchallenged and uncontroverted. The learned Counsel sought to rely on the case of A. I. Egbunike & Anor vs. ACB Limited (1995) 2 NWLR (Pt. 375) p. 34 at p. 55.
Counsel also argued that the law is trite that, where a party claims special damages, he must specifically plead and strictly prove same. He cited the provisions of Section 131 and 132 of the Evidence Act, 2011 and the cases of Shell Petroleum vs. Tiebo (2005) 9 NWLR (Pt. 931) 439, Uwa Printers Nig. Ltd. vs. Investment Trust Company Ltd. (1988) 5 NWLR (Pt. 92)110 and N.M. A. vs. M. M. A Inc. (2008) All FWLR (Pt. 446) 1916.
Counsel submitted thereon that the Claimant specifically pleaded and strictly prove his entitlement to the special damages claimed in this suit and his entitlement to all the reliefs sought in this suit.
Counsel concluded by urging the court to enter judgment in favor of the Claimant in this suit with substantial cost.
In view of the foregoing, I have taken a careful look at the processes filed by the Claimant in the instant suit and the general circumstance of the case including the exhibits tendered by the Claimant. I have also taken into account the submissions of learned Counsel to the Claimant made through the Claimant’s final written address and find that the sole issue for determination is to wit:
Whether or not in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought.
In resolving the sole issue for determination, I must posit that in the circumstance of this case, the judgment that will arise from the determination of the said sole issue is a default judgment in view of the failure of the Defendants to appear or file any process in defence of the instant case. The court in INEC & ANOR v. MADUABUM (2008) LPELR-4316(CA) stated the nature of default judgment when it held that:
“Default Judgment was defined as a Judgment rendered in consequence of the non-appearance of the Defendant. It is one entered upon the failure of a party to appear or plead at the appointed time. Put differently, default judgment means judgment entered under statutes or rules of Court, for want of affidavit or defence, plea, answer and the like, or for failure to take some required step in the cause. Per. BADA, J.C.A (Pp. 15-16, paras. E-A).
In addition to the foregoing, the Rules of this Court empowers this court to enter judgment in default of the appearance of the Defendant or default of filing defence where the claim is for pecuniary damages. See generally Order 35 of the Rules of this Court.
It is consequent upon the foregoing that I shall consider the claims of the Claimant vis-à-vis the evidence before the court.
The Claims of the Claimant as can be gleaned from the statement of fact is for unpaid salaries. Claimant stated that upon being employed he was to be paid $200 per day that he works as a jetty dispatcher and that from October 2015 to February 2016, he worked for 73 days which amounted to the sum of $14,600 but the Defendants have failed, refused and neglected paying same despite several Demands. Hence, his claim is for the said sum of $14,600 and post judgment interest at the rate of 10%.
In view of the following facts which is gathered from the statement of fact and witness statements on oath adopted before this court, the law is trite that he who asserts must prove. In this regard, the court in Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A – B (CA) held that:
“It is trite law that he who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight.” See A.G, Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255. Per Mshelia J.C.A.
In the light of the foregoing authority, the Claimant tendered exhibit C2-C6 in support of his assertions and claims. Exhibit C3 is the letter of offer of employment issued to the Claimant and same is dated 10/3/2015. Arising from the said letter of offer of employment, Claimant was informed that his employment begins on the 14th of March, 2015 and he will be paid $200USD only as Jetty Dispatcher charges per day. He was also by the said letter informed that his work place will be at Afren, Onne.
In addition, Claimant tendered exhibit C2 which is an email message forwarded to the Claimant with the title ‘Job termination’. Claimant contends that it is by the said letter that his employment was terminated. Arising from the content of the letter, Claimant posited that he was promised to be paid all his outstanding salaries after he has sent in his time sheet for processing of the Defendant’s invoice. Claimant tendered the said time sheets as Exhibit C4(a) – C4(e).
I have taken a look at the said exhibits C4(a) – C4(e) and find that C4(a) is a Time sheet for the month of October, 2015 where the working days for the Claimant is put at 14; Exhibit C4(b) is Time Sheet for the month of November, 2015 where the working days for the Claimant is put at 17 while Exhibit C4(c) is the Time Sheet for the month of December, 2015 with 15 working days; Exhibit C4(d) is for the month of January, 2016 with 21 working days while Exhibit C4(e) is for the month of February, 2016 with 6 working days.
The computation of days in the said exhibits rightly amounts to 73days. The Claimant also tendered Exhibit C5 in addition to the foregoing. The said exhibit is a letter written to one Dave Robertson, dated 31st May, 2016 wherein the Claimant along with other persons appealed for the intervention of OERL Management to assist in tracking and retrieving the salary owed to them by the 1st Defendant for services rendered under Afren and Oriental (clients of the 1st Defendant). In the said letter of appeal, the name of the Claimant is number 4 on the list, with the number of working days put at 73 and computed at the sum of $200 to make a total of $14,600.
The Claimant also tendered exhibit C6 which is the demand letter dated 13th June, 2017 and written by his lawyer to the Defendants with the attention of the 2nd Defendant.
It is upon the forgoing exhibits that the Claimant predicated his claim and there is no doubt that the standard required for proof in a civil suit such as the instant case is preponderance of evidence which the court in OKORIE v. UNAKALAMBA & ANOR (2013) LPELR-22508(CA) made exposition upon to the effect that:
“Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Per AJI, J.C.A. (Pp. 40-41, paras. G-D).
I must also add that while I reckon that the Defendants have failed to enter appearance and defence in the instant case, it is generally settled that where evidence is unchallenged, the standard becomes minimal to warrant judgment. The court in this regard held in the case of OKPOKO COMMUNITY BANK LTD. & ANOR. v. DR. P. C. IGWE (2012) LPELR-19943(CA) that:
“where a plaintiff adduces oral credible evidence which establishes his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence either by challenging same under cross-examination or by controverting same in evidence, the plaintiff is entitled to judgment. The reason for saying so is that such attitude of the defendant is interpreted to mean that he has accepted or deemed to have accepted the pleadings and evidence of or the case of the plaintiff. The standard of proof in such circumstance, as I said earlier, is minimal. See Buraimoh v. Bangbose (1989) 3 NWLR (Pt.109) 352, Tsokwa Oil Marketing Company Nigeria Limited v. Bank of the North Limited (2002) 11 NWLR (Pt. 777) 163, Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444.” Per OKORO J.C.A (Pp. 21-22, paras. B-A).
Having said that, I am also not oblivious of the fact that the claim made by the Claimant for the sum of $14,600 as outstanding salaries is a specific sum making same come within the realm of special damages which must be specifically pleaded and strictly proved. In this wise, the court in 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).
It is view of the foregoing authorities that the reliefs sought by the Claimant is considered and with regards to relief one which is for an Order on this Court directing the Defendants to pay the sum of $14,600 as outstanding salary to the Claimant, this court finds that the Claimant has specifically pleaded how his salary was agreed to be $200 per day via Exhibit C3 and he has also established through Exhibit C4(a) –C4(e) the days upon which his salaries were not paid upon a preponderance of evidence which remains unchallenged in view of the fact that the Defendants failed, refused and neglected to enter defence.
Consequent upon the foregoing, the evidence tendered before this court is minimally sufficient to grant the said relief one sought by the Claimant in default of appearance of the Defendants.
With regards to relief two which is for “10% interest on the judgment sum from date of judgment till the entire sum is liquidated”, I reckon that the said relief is a post judgment interest which the rules of this court regulates and which the grant is predicated on the discretion of the court as Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017 stipulates that the Court ‘may’ at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.
I also reckon that the discretion of the court is to be exercised judicially and judiciously and the court in the case of ALIYU v. ALMU (2013) LPELR-21857(CA) held that:
“Discretion of the Court is said to be the judges assessment of what is fair and just to do in a particular case. See Ngwu v. Onoh (2006) All FWLR (pt. 303) page 303 at 375; Iwuji v. Federal Commissioner for Establishments (1985) 1 NWLR (pt. 3) page 497 at 517 Okafor v. Uchedo (2002) FWLR (pt. 122) page 188.” Per ABOKI, J.C.A. (P. 17, paras. F-G).
In view of the foregoing, this court finds it to be a fair consideration in view of the facts and circumstances of this case to exercise discretion in favour of the Claimant. Consequently, this court upon the provision of Order 47 Rule 7 of the Rules of this Court directs that the monetary claim awarded to be paid to the Claimant by the Defendants must be paid within 30 days, failure upon which same shall attracts interest at the rate of 10% per annum.
In other words, the sole issue formulated for the determination of this suit is resolved in favour of the Claimant to the effect that in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought in the extent to which same has been granted.
In the light of the foregoing, the Claimant is found to be entitled to the reliefs sought and they are according granted as ordered by this court.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE
