MRS Holdings Limited -VS- Ibrahim Akar

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: FEBRUARY 16, 2018

SUIT NO. NICN/LA/616/2014

BETWEEN

MRS Holdings Limited – Claimant

AND

Ibrahim Akar – Defendant

REPRESENTATION

I. Egonu, for the claimant.

No legal representation for the defendant.

JUDGMENT

The claimant fled this suit on 22nd December 2014 by way of a complaint. By order of Court made on 26th January 2017, the claimant was granted leave to amend its originating processes. This it did and hence filed its amended statement of facts, amended sworn statement of witness, amended list of documents and copies of the documents to be relied upon at the trial, which were eventually marked as Exhibits C1 to C6. By the amended statement of facts, the claimant is paying for:

A declaration that by virtue of the provisions of clause 21 of the Contract of Employment between the claimant and the defendant, the construction, validity and performance of the said agreement is to be governed and construed in accordance with Nigeria Law and that the parties had irrevocably committed themselves to the exclusive jurisdiction of the Nigerian Courts.
A perpetual injunction restraining the defendant from seeking to enforce the terms of said Contract of Employment in any other manner or forum than in accordance with the provisions of clause 21 of the said Contract of Employment.
Damages in the sum of USD500,000.00.
Cost of this suit.

The defendant did not enter any appearance, did not file any defence process, and did not have any legal representation throughout the hearing of this case. The matter still proceeded to trial; and the claimant in proof of its case called one witness, Mrs Safiya Mohammed, Acting Group Head, Human Resources, of the claimant, who testified as CW for the claimant. At the close of trial, the claimant filed its final written address on 16th October 2017.

It is the claimant’s case that the defendant came into the employment of the claimant in July 2010 as Group IT Manager of the claimant, and consequently, a contract of employment was duly executed by both parties. By clause 21 of the said agreement, the claimant and the defendant committed themselves to the exclusive jurisdiction of the Nigerian Courts in the event that either of the parties seeks the construction, validity or performance of the contact. That the defendant voluntarily resigned from the employment of the claimant on 30th August 2013. That the defendant, however, via its solicitors in Georgia, USA, wrote a letter to Mr. Sayyu Dantata (the Chief Executive Officer of the claimant) dated 20th March 2014 (Exhibit C5) claiming the sum of $408,277.00 (Four Hundred and Eight Thousand, Two Hundred and Seventy-Seven US Dollars) for non-payment of benefits as contained in paragraphs 5, 6 and 7 of his contract of employment. That the defendant further threatened to file a complaint at the State Court of Fulton County, Georgia, USA, if the claimant failed to pay the said amount of money. That upon refusal of the claimant to pay the defendant’s unfounded claim, the defendant, eventually filed the complaint (summons) dated 21st January 2015 (Exhibit C6) at the State Court of Fulton County, Georgia claiming the said amount of $408,277.00 against the clamant and its Chief Executive Officer, Mr. Sayyu Dantata, despite the provision of clause 21 of his Contract of Employment. The claimant accordingly filed the instant suit claiming the reliefs it is claiming.

The claimant submitted two issues for determination, namely:

Whether the claimant has placed sufficient material before this Court in proof of its case.
Whether the claimant is entitled to compensation as claimed.

On issue (1), the claimant submitted that the defendant breached the contract between them; and it has placed sufficient materials before this Court in proof of its case and claims as contained in paragraph 19 of its amended statement of facts. That it is trite law that before a Court can grant a claimant’s claims, the claimant must satisfactorily place before the Court sufficient and compelling materials to establish that he has an enforceable right against the defendant against whom his claims should be granted. That the term “must satisfactorily” used in the context above stipulates that it is mandatory for the claimant to proof his case before any Court can grant the reliefs sought, referring to section 133(1) and (2) of the Evidence Act 2011. That the onus of proof is normally fixed by the state of the pleadings and is on the plaintiff.

The claimant continued that breach of contract has been defined in Best (Nig) Ltd. v. B. H. (Nig.) Ltd [2011] 5 NWLR (Pt. 1239) 95 SC at 117 as one committed when a party to the contract without lawful excuse fails, neglects or refuses to perform all obligations he undertook in the contract. That it is also a settled principle of law that parties are bound by the contract they voluntarily entered into, citing A. G., Rivers State v A. G., Akwa Ibom State [2011] 8 NWLR (Pt. 1248) 3 SC at 83. The claimant proceeded to educate the Court on the ingredients of a valid contract; and then submitted that the instant case reveals that a contract was entered into by the claimant and the defendant and duly executed, as evidenced by Exhibit C1. That the claimant made an offer, which the defendant unconditionally accepted; the parties expressed their intention in a clear and unequivocal form and both parties had the legal capacity to enter into the said contract. That there is no evidence before the Court to contradict what the claimant has presented before the Court. That in cases such as the instant case, where an agreement is expressly in writing, the Courts are enjoined not to look beyond the express provisions of the agreement to determine what its express terms are. On the need to respect the sanctity of a contract, the claimant relied on A. G., Rivers State v. A. G., Akwa Ibom State (supra), Ibama v. SPDC (Nig.) Ltd [2005] 17 NWLR (Pt. 954) 364 and Sona Brew. Plc v. Peters [2005] 1 NWLR (Pt. 908) 478.

On whether the said contract was breached by the defendant, the claimant submitted that by the express terms of clause 21 of the contract of employment between the claimant and the defendant, both parties committed themselves to the exclusive jurisdiction of the Nigerian Courts in the event that either of the parties seeks the construction, validity or performance of the contract, referring to the claimant’s averment in paragraph 4 of its amended statement of facts. That by the content of Exhibit C4, it is clear that the defendant engaged the services of a solicitor practicing in Georgia USA to write the claimant, claiming the sum of $408,277.00 (Four Hundred and Eight Thousand, Two Hundred and Seventy-Seven US Dollars), being the nonpayment of the defendant’s benefits; and by Exhibit C4(a),the defendant threatened to file a complaint in the State Court of Fulton County, Georgia, United States of America against the claimant and Mr Sayyu Dantata (the Chief Executive Officer of the claimant). Furthermore, that by Exhibit C6, the defendant filed a summons at the State Court of Fulton Georgia, an express breach of clause 21 of the contract of employment. That the one and inevitable conclusion from the foregoing is that the defendant, through suing the claimant at the State Court of Fulton County, Georgia, breached clause 21 of his contract of employment. That the defendant failed to abide by the provisions of his contract of employment with the claimant and as well failed to perform the entire obligations he undertook. That the facts of this case squarely fall within the meaning of breach of contract as defined in Best (Nig) Ltd v. B. H. (Nig.) Ltd (supra). The claimant then urged the Court to hold that based on the above stated facts and evidence, the claimant has established a case of breach of contract against the defendant and as such is entitled to damages.

The claimant went on that it is important to note that the case of the claimant was undefended, as the defendant did not enter appearance and neither did he file any defence to this action. That there is a plethora of cases on the disposition of the Courts in cases like the instant case where a party does not defend an action, despite being given the opportunity to do so. That the Courts are enjoined to rely on the unchallenged and uncontroverted evidence before it in arriving at a decision, relying on M.I.N Ltd v. M.F.K.W.A Ltd [2005] 10 NWLR (Pt. 934) 645. Ibama v. S.P.D.C (Nig.) Ltd (supra), State v. Oladotun [2011] 10 NWLR (Pt. 1256) 542 at 559 and Akiboye v. Adeko [2011] 6 NWLR (Pt. 1244) 415 at 441. It is thus the claimant’s submission that the defendant had the whole time in the world to defend this suit but failed to do so; and that from the totality of the credible evidence before this Court, which is admitted, the claimant has established a case of breach of contract against the defendant.

Issue (2) is whether the claimant is entitled to damages as claimed, which the claimant puts at USD500,000.00. On this claim for general damages, the claimant submitted that it is a general principle of law that an award of damages is at the discretion of the trial Court, and is awardable once a breach of contact has been established, citing Beta Glass Plc v. Epaco Holdings Ltd (supra). That the claimant earlier when addressing issue (1) established that the defendant breached clause 21 of the contract of employment, and consequently upon the said breach by the defendant, the claimant in this suit is entitled to damages, citing Nwaolisah v. Nwabufoh [2011] 14 NWLR (Pt. 1268) 600 and Best (Nig.) Ltd v. B.H (Nig) Ltd (supra). That unlike special damages, general damages are what the law presumes have resulted from the harm suffered by the claimant and which the claimant need not specifically set out in the pleadings; it is damages awarded for injury or loss which are incapable of precise calculation. That the claimant is entitled to compensation from the defendant in the form of general damages since the claimant has proved the allegations of breach of contract contained in his statement of facts. Furthermore, that it is pertinent to point out that the claimant had to engage the services of a solicitor in the United States of America to respond to the summons filed by the defendant and defend the suit on behalf of the claimant. That the claimant’s involvement in the defence of the suit instituted by the defendant in a jurisdiction other than the one agreed by parties in clause 21 of the contract of employment gave rise to a huge financial loss, which could have been avoided if the defendant had not breached the said clause 21, citing First Inland Bank v. Jeks (Nig) Ltd [2014] 16 NWLR (Pt. 1434) 572. That the basic rule is that the claimant is entitled to be placed in the same position he would have been before the wrong, which to him the payment of USD500,000.00 would do in salvaging hiss injury (i.e. the financial loss he suffered while defending the frivolous action commenced by the defendant in the United States of America, an action which amounted to a breach of contract), citing Ahmed v. CBN [2013] 2 NWLR (Pt. 1339) 524 SC. In conclusion, the claimant urged the Court to grant all his reliefs.

COURT’S DECISION

I have carefully considered the processes filed and the submissions of the claimant. I pointed out that the defendant did not enter appearance, did not feel any defence process and did not have any legal representation throughout the hearing of this case. To the claimant, because the defendant did not enter any defence to this action, he must be read to have admitted all the claims of the claimant. The law is that even if a defence was not entered, under the minimal evidence rule, the claimant is still not absolved from still proving his case. See Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69, Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247 and Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC. In any event, relief (a) sought for by the claimant is the key relief of the claimant, and it seeks a declaratory relief. The law is that where a party seeks a declaratory relief, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any); such a relief will not be granted, even on the admission of the defendant. See Nyesom v. Peterside & ors [2016] LPELR-40036(SC), Okereke v. Umahi & ors [2016] LPELR-40035(SC), Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 297 – 299 and Ucha v. Elechi [2012] 13 NWLR (Pt. 1317) 230.

It is in proof of its case that the claimant tendered Exhibit C, the contract of employment between it and the claimant dated 1st July 2010. It was signed by both parties on July 01, 2010 in Lagos. As an executed document, it shows the existence of a contract between between the claimant and the defendant, which is binding on both parties. I so find and hold. The case of the claimant is that the defendant is in breach of this contract for which the claimant is entitled to that reliefs it seeks in this case i.e. the declaratory relief in relief (a), the perpetual inunction as per relief (b) and the breach of which it seeks damages in the sum of USD500,000 as per relief (c); and that the clause the defendant breached is clause 21. Clause 21 provides as follows:

The construction, validity and performance of this Agreement shall be governed and construed in accordance with Nigerian law and the parties hereby irrevocably submit to the exclusive jurisdiction of the Nigerian Federal High courts. Any decision arising there from shall be enforced in any Court of competent jurisdiction.

So the interpretation of clause 21 is key to determining whether the claimant can recover in terms of this suit.

By the said clause 21, both the claimant and the defendant irrevocably submit to the exclusive jurisdiction of “the Nigerian Federal High courts”. What this implies is that in terms of any dispute arising from the “construction, validity and performance” of Exhibit C1 between the parties, such a dispute must be resolved in accordance with Nigerian law and in a competent Nigerian court. There are three components to callus 21: the application of Nigerian law to any despite arising from it; the forum for resolving the dispute being a competent Nigeria court; and enforcement of the decision of the competent Nigerian court being in “any Court of competent jurisdiction”. I note that clause 21 uses the phrase “Nigerian Federal High courts” and that the word “courts” in the phrase is in small caps especially the “c” in the word “courts”. There is a bit of inelegance in drafting here given that constitutionally, the 1999 Constitution of the Federal Republic of Nigeria establishes separate courts known as the High Courts. Specifically, three are established: the Federal High Court (as established under section 249 of the 1999 Constitution), the High Court of the Federal Capital Territory (as established under section 255 of the 1999 Constitution) and the High Court of a State (as established under section 270 of the 1999 Constitution). Each time under the constitutional tenor a reference is made, not to the individual High Courts, but to all of them collectively, what the Constitution does is to simply refer to “a High Court” indicating that what it means is any of the High Courts. For instance, under section 46 of the 1999 Constitution, because that provision relates to all the High Courts, the term used throughout the section is “a High Court” without the distinction of Federal, FCT or State High Court.

I said that there is a bit of allegiance in using the phrase “Nigerian Federal High courts”. The fact that the word “courts” in the phrase is in small caps especially the “c” in the word “courts”, the parties cannot be held to have meant the “Federal High Court” as established under section 149 of the 1999 Constitution. The phrase “Nigerian Federal High courts” must thus be read to mean any of the competent courts in Nigeria that is of the status of a High Court. This fact is important because when on 1st July 2010 the parties executed Exhibit C1, the Third Alteration to the 1999 Constitution, which constitutionally established the National Industrial Court of Nigeria (NICN) under section 254A of the 1999 Constitution, was not even passed. So when the NICN was established and jurisdiction over all labour and employment matters was exclusively granted to the NICN under section 254C(1) of the 1999 Constitution, the reference to “Nigerian Federal High courts” in clause 21 must now read “the National Industrial Court of Nigeria” since no other court in Nigeria has jurisdiction over the subject matter of Exhibit C1. hence the filing of the instant suit in this Court. This being the case, clause 21 signifies that the three components of clause 21 I talked of earlier i.e. the application of Nigerian law to any despite arising from it; the forum for resolving the dispute being a competent Nigeria court; and enforcement of the decision of the competent Nigerian court being in “any Court of competent jurisdiction” must necessarily read the NICN in terms of the references to competent court. In other words, the forum for resolving any dispute arising form Exhibit C1 must be the NICN, the applicable law for resolving that dispute must be Nigerian law and the enforcement of the decision of the NICN given in terms of the dispute can be in “any Court of competent jurisdiction”, which incidentally is now the NICN. Relief (a) as claimed is accordingly grantable; and I so hold.

The claimant as per relief (b) wants a perpetual inunction issued against the defendant restraining the defendant from seeking to enforce the terms of Exhibit C1 in any other manner of forum than in accordance with the provisions of clause 21. The argument of the claimant for this relief as well as the claim for damages as per relief (c) is that the defendant instead of suing the claimant in Nigeria sued it in the United States of America (USA) contrary to clause 21. Exhibit C6 is a copy of the complaint dated 21st January 2015 filed in the Superior Court of Fulton County, State of Georgia by the defendant against the claimant and Sayyu Dantata. In the said complaint (Exhibit C6), the address of service of both defendants is put as in Atlanta, Georgia with the instant defendant described as registered and authorized to do business in the State of Georgia. The claims of the defendant against the claimant as per Exhibit C6 are: compensation for breach of employment agreement; unjust enrichment; fraud; conversion of funds – unauthorized expenses; brach of duty of loyalty; punitive damages; and attorneys’ fees and expenses of litigation. The complaint as per Exhibit C6 itself acknowledges that all of these claims which are termed counts in the complaint stem from the performance of Exhibit C1, which fact by presupposes that trial over them out to be as per clause 21 of Exhibit C1. When the claimant was first intimated vide Exhibit C4(a) that a suit against it would be filed in the USA, the claimant replied vide Exhibit C5 informing the defendant’s counsel of the existence of clause 21 of Exhibit C1. Despite Exhibit C5, the defendant proceeded to file the complaint as per Exhibit C6; and in filing the complaint as per Exhibit C6, the defendant although kept mute about clause 21 of Exhibit C1 even when other clauses were cited in support of his claims (counts).

The Supreme Court in Goldmark Nigeria Ltd & ors v. Ibafon Company & ors [2012] LPELR-9349(SC) paid down what trial courts should note in the grant of the relief of perpetual injunction. In the words of the Supreme Court:

The grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement.

I held that relief (a) has been proved and so succeeds. This means that by the authority of Goldmark Nigeria Ltd & ors v. Ibafon Company & ors, the claimant is entitled to relief (b). Relief (b) accordingly succeeds and is hereby granted. I so order.

Relief (c) is for damages. To the claimant, he earlier when addressing issue (1) established that the defendant breached clause 21 of the contract of employment, and consequently upon the said breach by the defendant, he is this suit entitled to damages. In other words, the mere fact that the defendant sued the claimant in the USA contrary to clause 21 of Exhibit C1 means that the defendant breached the said clause 21 and so should pay as damages to the claimant the sum of USD500,000.00. I note that relief (c) states that what the claimant is claiming for is damages. The claimant did not indicate whether it is general damages or special damages. It is in the written address that the claimant started talking of being entitled to general damages as distinct from special damages. I think that the claimant decided to make this distinction in its written address when it realized that unlike general damages, special damages must be specifically pleaded and proved as held in NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC). The claimant went on in further proof of his claim for relief (c) to point out that the claimant had to engage the services of a solicitor in the United States of America to respond to the summons filed by the defendant and defend the suit on behalf of the claimant; and that the claimant’s involvement in the defence of the suit instituted by the defendant in a jurisdiction other than the one agreed by parties in clause 21 of the contract of employment gave rise to a huge financial loss, which could have been avoided if the defendant had not breached the said clause 21. The claimant concluded that it is entitled to be placed in the same position he would have been before the wrong, which to the claimant the payment of USD500,000.00 would do in salvaging the his injury (i.e. the financial loss he suffered while defending the frivolous action commenced by the defendant in the United States of America, an action which amounted to a breach of contract).

The point is that all the talk of the claimant’s counsel about the claimant engaging the services of a solicitor in the US to defend the suit the defendant filed in the US, which gave rise to a huge financial loss amounting to USD500,000.00, deals with facts that were not pleaded by the claimant in its amended statement of facts. What the counsel to the claimant has, therefore, done by his submission is to introduce facts and evidence in the claimant’s final written address. The law is that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. And by Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence. See also Adam v. Shaibu & ors [2016] LPELR-40179(CA). So, counsel in the instant case cannot give evidence in his written address. The only place where the sum of USD500,000.00 is mentioned is after paragraph 16 of the amended statement of facts where the claimant made the four claims it makes in tis suit; and the Supreme Court has held that the paragraph where a claimant itemizes his reliefs cannot at the same time be the supporting pleading upon which a Court can grant the reliefs prayed for. See Ishola v. UBN [2005] 6 MJSC 34 at 49 – 50, where the Supreme Court held as follows:

The operating words of paragraph 29 of the Amended Statement of Claim of the Appellant at the trial reads:

‘WHEREFORE the Plaintiff claims as follows against the Defendant’

The claims are then set out from (i) – (ix) in separate paragraphs. These are not facts pleaded but claims which constitute the reliefs which the Appellant is praying the court for at the end of the trial. Paragraphs 29(1) is one of the prayers or reliefs asked for…The whole paragraph 29 is not and cannot constitute any pleading at all as no valid order can be made under it without any facts contained in the pleadings in support of it and upon which evidence can be led. As I said earlier in this judgement, there is no iota of pleadings in the Appellant’s Amended Statement of claim challenging the validity or legality of the legal Mortgage.

In like manner, the claimant in the instant case did not plead the facts upon which this Court can consider its claim for USD500,000.00 as damages. The claimant for USD500,000.00 accordingly fails and is hereby dismissed.

Relief (d) is a claim for cost; a figure was, however, not indicated. The rule is cost is at the discretion of the Court. By NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), the award of cost is entirely at the discretion of the Court, although costs follow the event in litigation. That it follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement; and in making an award of costs the Court must act judiciously and judicially. That is to say with correct and convincing reasons. In the instant case, the claimant only partly succeeded in terms of its reliefs (a) and (b). I do not accordingly see the need to grant any cost in that regard.

On the whole, for the reasons given and for the avoidance of doubt, the claimant’s case succeeds only in terms of reliefs (a) and (b), which are hereby granted; and I so order.