PATRICK EHIMIAGHE BARE VS CSA INTERIORS COMPANY AGRIC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: WEDNESDAY 26^TH SEPTEMBER 2018 SUIT NO. NICN/LA/518/2017

BETWEEN:

PATRICK EHIMIAGHE BARE – CLAIMANT

AND

CSA INTERIORS COMPANY

AGRIC SERVICES NIGERIA UMITED – DEFENDANTS

Representation:

C M Ohamuo appears for the Claimant

U D Aneke appears for the Defendants

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 26^th of October 2017, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the 26^th October 2017 and copies of all the documents to be relied on at the trial of the suit. The Claimant claims the following reliefs against the Defendants:

AN ORDER that the Defendants pay to the Claimant jointly and or severally the sum of Nl,878,578.00 (One Million Eight Hundred and Seventy Eight Thousand Five Hundred and Seventy Eight Naira) being the balance of his 2% commission from the contract secured for the Defendants.
AN ORDER that the Defendants pay jointly and or severally the sum of N37,000.00 (Thirty Seven Thousand Naira) being Claimant’s February 2016 salary and 10 days worked in March 2016.
General damages in the sum of N500,000.00 (Five Hundred Thousand Naira)
Costs of the action assessed at N500,000.00 (Five Hundred Thousand Naira)

In response to the claim, the Defendants filed a joint Statement of Defence dated 2^nd February 2018; with a List of Defendants’ Witnesses and Defendants’ Witness Statement on Oath deposed to by Victor Idono, List of Documents and copies of the documents to be relied on at the trial. The Claimant filed a Reply to Statement of Defence with a further witness statement on oath on 12^th February, 2018. Parties joined issues and pleadings thereby closed.

Trial commenced in the suit on 11^th April 2018 and ended on 22^nd May 2018. The Claimant gave evidence for himself as CW1, by adopting his Amended Witness Statement on Oath deposed to on 26^th October 2017 and his Further Witness Statement on Oath of 12^th February 2018. The Claimant was thereafter cross-examined. During the examination in chief, the Claimant tendered in evidence the following documents:

Exhibit C1 – Letter of appointment (1 page)
Exhibit C2 – Price list dated 21^st July, 2015.
Exhibit C3 – Certificate of Achievement dated January, 2016.
Exhibit C4 – Letter of redundancy dated 9^th March, 2016.
Exhibit C5 – Letter of Appeal for legal assistance
Exhibit C6 – Letter of invitation from Office of the Public Defender dated 25^th April, 2016.
Exhibit C7 – Letter titled ‘Petition from one Patrick Ehimaighe Bare’ dated 12^th May, 2016 by ICFNL.
Exhibit C8 – Stambic IBTC Statement of account.

The Defendant’s Witness, Victor Idono gave evidence as DW1 by adopting his Witness Statement on Oath deposed to on 2^nd February 2018 and he was cross-examined accordingly. The Defendant tendered in evidence the following document:

Exhibit D1 – Letter of Offer of employment to Bare by CSA
Exhibit D2 – Warning Letter dated 22^nd December 2015
Exhibit D3 – Second Warning Letter dated 18^th February 2016
Exhibit D4 – Letter of Redundancy dated 9^th March 2016
Exhibit D5 – Acknowledgement of Payment dated 17^th March 2016
Exhibit D6 – Letter from the Office of the Public Defender.

At the end of trial on 22^nd May 2018, the Court ordered the parties to file their respective final written addresses and adjourned for adoption of the Final Written Addresses on 13^th July 2018. On the date set for adoption of Final Written Addresses, Defendant had not filed any Written Address; Defendant rather brought an application to strike out the name of the 2^nd Defendant on the ground that at the closure of case of the Claimant, no reasonable cause of action had been disclosed against the 2^nd Defendant. This application was opposed by the Claimant. The Court heard the application and reserved Ruling to be taken with the judgment. The suit was thereafter further adjourned to 14^th of August for Adoption of Final Written Address, with the consent of both Counsel. Parties were asked to put their consent in writing. Only the Claimant filed a written consent. As a result, the case was further adjourned to the 25^th of September 2018 for adoption of Final Written Address. Hearing Notice was ordered to be served on the Defendant. After the Defendant failed to file its Final Written Address, Claimant filed his Final Written Address dated 31^st July 2018 with proof of its service dated 5^th September stating Defendant was served on 8^th August 2018. On 25^th September 2018 when the case again came up for adoption of Final Written Address, Defendant was absent and no reason given. Defendant had also not filed its Final Written Address and there was no process seeking for extension of time as required by Order 45 Rules 9 and 10 of the Rules of this Court. Since the Court cannot wait indefinitely without purpose, the Court foreclosed the Defendant by virtue of Order 45 Rule 12 of the NIC Rules 2017. The Claimant then adopted his Final Written Address and the Court adjourned for judgement.

CASE OF THE CLAIMANT

The case of the Claimant is that he was employed by the Defendants as a Sales representative. He was initially interviewed and upon passing the interview the Claimant was given the unsigned and undated document that contains the terms and conditions of the employment. That the Defendants are in the business of sales and supply of security doors amongst others. It is the case of the Claimant that it was part of the condition of his employment that he would be entitled to 2% commissions on any contract for the sale and supply of security doors brought to the Defendants by the Claimant. The monthly salary of the Claimant is the sum of N22, 000.00 (Twenty Two Thousand Naira) only. Claimant states that he made sales of N116, 000.00 (One Hundred and Sixteen Thousand Naira Only) sometime in November, 2015 and was paid the sum of N2,320.00 (Two Thousand Three Hundred and Twenty Naira) commission being 2% of the sales contract. In November 2015 he secured another contract from one Crown Reality Plc. Ikoyi to supply doors and do the fittings for kitchen and wardrobes at their site at their Crown Court Estate Durumi FCT Abuja. The contract value was N125, 278,400.00 (One Hundred and Twenty Five Million Two Hundred and Seventy Eight Thousand Four Hundred Naira) for which he was entitled to be paid the sum of N2, 505,568.00 (Two Million Five Hundred and Five Thousand Five Hundred and Sixty Eight Naira) being commission on the contract sum. Claimant states that he signed and executed the contract. Claimant further states that for securing that contract for the Defendants he was given a “Certificate of Achievement” award as the Best Sales Person of the Year. Crown Realty deposited N20 Million Naira to sign the contract. The Claimant was paid the sum of N300, 000.00 (Three Hundred Thousand Naira) as initial commission. The money the Defendants paid as commission was not up to 2% of N20 million. The Claimant complained but the Defendants said they only paid 75% and that the balance would be paid when the job is concluded. Crown Reality deposited another N73 Million to enable the Defendants start the job. The Claimant was paid another N453, 350.00 (Four Hundred and Fifty Three Thousand Three Hundred and Fifty Naira) as commission on 16th February, 2016. The money paid was also short of the 2% promised. The Claimant complained again but the Defendants said the money the Defendant is paying the Claimant is too much. The Defendants thereafter stopped and refused to pay the balance of the commission. The sum yet to be paid is the sum of N1, 878,578.00 (One Million Eight Hundred and Seventy Eight Thousand Five Hundred and Seventy Eight Naira). The Claimant made repeated demands on the defendants to pay the balance of the commission but the defendants failed and or refused to pay same. Rather than pay the balance of the commission the Defendants started threatening the Claimant with summary dismissal if he continued to demand tor the commission. The Defendants instituted a suit against the Claimant with a view to cowing the Claimant. Defendants ·thereafter purportedly declared the Claimant redundant but failed, neglected and refused to pay the balance of the Claimant’s commission. The Defendants also failed to pay to the Claimant his February 2016 salary and 10 (ten) days worked in March 2016 which is the sum of N37,000.00 (Thirty Seven Thousand Naira.

CASE OF THE DEFENDANT

It is the case of the Defendant that by a letter directing Bare to commence work on 7th September 2015, CSA made an offer of employment to Bare who accepted same and procured Guarantors to stand for him. Defendants state that no other document is attached to the Letter of Appointment. They note that Claimant did not frontload any documents in proof of its allegation of a “signed and executed contract with Crown Reality PLC Ikoyi”. They state that Claimant worked at diverse times on diverse issues for 1^st Defendant and in all that time it was turbulent. He received two warning letters (the first letter being dated the 22^nd December, 2015 and the second letter being dated 18^th February, 2016) due to his violent actions and threatening of staff in the office. That, as a result of the not too good economic state of the nation, 1^st Defendant decided to downsize and in consequence thereof, staff who were surplus to requirement were told they no longer had a place in the company. Claimant was one of them. Claimant was duly informed of this development in writing by Internal Memo dated the 9^th March, 2016. That the entitlements of all such staff, including Claimant were properly calculated and paid to them, which Claimant acknowledged vide a document dated 17^th March, 2016. That, after collecting all that was due to him, Claimant called the company to complain that he had spent the money and that the company still owed him money. That Claimant made all sorts of wild allegations about projects and contracts and amounts which had no relationship with reality.

REPLY TO STATEMENT OF DEFENCE

The Claimant in response to the Defendants’ Statement of Defence restated his case and further stated that the executed contract papers between the defendants and Crown Realty Plc. are with the Defendants. Claimant further states that he was not laid off because of any misconduct, any economic crunch or downsizing in the Defendants’ companies but rather because he insisted on the payment of the balance of his commission from the Defendants. Claimant states that he was not paid any entitlement including the balance of his commission; and that he did not acknowledge payment for his entitlement including the balance of his commission. Claimant further stated that he never made any sort of wild allegations about projects and contracts and that he at no time disrupted the normal workings of the company nor caused the company to suffer any loss but only demanded the balance of his commission which is due to him. Claimant denies writing any petition to the Immigration Service.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set the following issues down for determination:

Whether the Claimant is entitled to his Claim.

In this action, Claimant seeks primarily for an Order that the Defendants pay to him, jointly and or severally the sum of Nl, 878,578.00 (One Million Eight Hundred and Seventy Eight Thousand Five Hundred and Seventy Eight Naira) being the balance of his 2% commission from the contract secured for the Defendants. The issue of the existence or otherwise of the 2% commission as part of the condition of employment of the Claimant, is imperative in the determination of this case. The Claimant stated clearly in his Pleadings and in his evidence that the condition of his employment entitles him to a 2% commission on all sales he attracted to the Defendants. Defendants in response, did not make a categorical denial of this fact. Rather, under cross examination, Defendants’ witness stated that:

Yes, the Claimant was employed as a Sales Representative. His duty is to bring sales to the company. …Claimant is paid salary every month for his services. He is also paid commission for sales he brings to the company. …I agree that 1^st Defendant pays commission for sales made.

Based on the above, I find that it is part of the parties’ contractual relationship that commissions are paid for sales attracted by Sale Representatives.

Another question is the percentage of the commission payable. The Claimant stated expressly that the percentage commission is 2%. Defendants again did not counter this piece of evidence in any way; rather, under cross-examination DW who is the Administrative Manager of the Defendant stated that:

I do not know the percentage of commission the company pays. My work is purely administrative.

I find it preposterous that an Administrative Manager will not know the percentage commission of the company he works for and represents. It is also noteworthy that though Claimant’s assertion of 2% commission is clearly stated in his Claim; Defendants’ did not deny this percentage nor did they state any other percentage in their pleadings or during trial.

By Section 167 (d) of the Evidence Act 2011, The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:-

Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

In the circumstance of no contending rate of commission percentage, The Court is left with no other finding except that the percentage of the commission is 2%. See the case of N.S.C. (Nig) Ltd v. INNIS-PALMER (1992) 1 NWLR (PT 218) 422 C.A.

The Claimant seeks payment of 2% commission on the sale of N125,385,400.00 which he states that he secured for 1^st Defendant. This is also clearly stated in his claim. Again, the Defendant failed to controvert this by evidence. The Claimant tendered a Certificate of Achievement (exhibit C3) which states:

Certificate of Achievement: This certificate is presented to PATRICK BARE for achievement in BEST SALES OF THE YEAR 2015(N125, 385,400) on this day the January of 2016.

This document was frontloaded and served on the Defendant before Defendant entered defence; yet Defendant did not counter the asserted sales figure by direct denial or evidence. Defendant did not deny that Claimant brought such a sale to them rather noted that Claimant did not frontload any document in proof of its allegation of a ‘signed and executed contract with Crown Reality Plc. Exhibit C8 is Claimant’s Stanbic IBTC Bank Statement of Account. Claimant in evidence stated that he had attracted a sale of N116,000.00 sometime in November 2015 for which N2,320.00 was paid to him by the 1^st Defendant, with transaction description of ‘BG SALES COMM B/O CSA INTERIORS’ in favour of Claimant. This represents 2% commission on that sale. Exhibit C8 shows further payments of N300,000.00 daed 08/01/2016 and N453,350.00 with the same transaction description of BG SALES COMMISSION B/O CSA INTERIOR in favour of Claimant. These facts, also stated in Claimant’s evidence are not controverted or denied. Defendant in evidence did not deny making the said deposits nor did they explain what else it was for.

In D. Hallmark Contractors Nigeria Ltd & Anor v. Gomwalk (2015) LPELR-24462(CA), The Supreme Court held:

It is not enough to plead that the defendant is not in a position to admit or deny a material or essential fact that has been specifically pleaded. The general traverse is insufficient to meet important and specific allegations. See Ajani vs. Okusaga (1976) 1 FNLR 188 at 193; Benson vs. Otubor (1975) 1 All NLR (Pt.1) 43 and Lewis & Peat vs. Akhemeni (1976) 7 SC 157.

The effect of a general denial or traverse was further explained in Afolagbe vs. Shorun (1985) 4 SC 250 where Obaseki, JSC held at page 253 that:

“Unless a specific allegation of facts is traversed specifically, a pleading that the “the defendant is not in a position to admit or deny” is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of the statement of defence the averment can be taken as having been denied.”

I find that no issue was joined on the 1^st Relief of the Claimant since the Defendants did not traverse same. Therefore, the Defendant having not specifically denied the specific facts pleaded by the Claimant, there is no dispute as to the Claim of the Claimant. The statement of defence did not specifically or by necessary implication say that the Claimant did not attract a sale of N125,385.400 to them, nor that Sales Reps are not entitled to 2% commission on the sales nor that the Claimant is not entitled to his Claim. See Afolagbe v. Shorun (supra).

DW in his testimony, and under cross-examination appeared to have no information in relation to the facts in issue.

In the case of U.B.N. Plc v. Chimaeze (2007) ALL FWLR (Pt. 364) 303 at 318 Paras.A – B,319-320 Paras.H – A (CA) it was held that:

Mere general denials in pleadings are never sufficient traverse and amount to no denial at all with end result that the particular pleaded fact remains unchallenged and only required minmal evidence or none at all to be admitted as proved by the trial court. In other words, there should be no general traverse in respect of essential and material allegations. They should be specifically traversed.

In the absence of any evidence controverting the above, I find that the deposits were for commissions of sales made by the Claimant.

Defendants tendered exhibit D5 – purporting to be from Claimant to Defendants wherein Claimant purportedly confirms receipt of N27, 000.00 and stating that “my final account with CSA/Agric Services is settled and I will not have any claims whatsoever against the company and its managers in connection to my work for Agric/CSA.” Claimant denied making or signing the said document. During cross-examination, DW stated that the Defendant prepared the document and gave it to the Claimant to sign. I have compared the signature on D5 with Claimant’s signature on the Witness statement, Verifying affidavit and on exhibit C5(Letter of Appeal from Claimant to the Office of the Public Defender) and do not find any iota of resemblance to the signature on D5. I therefore do not accept D5 as emanating from Claimant. I therefore find that Claimant had not discharged Defendants of any liabilities they may owe him.

It is the law that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. It is also the law that the standard of proof in this type of action is on a balance of probability. As held in the case of EMEKA v. CHUBA-IKPEAZU & ORS (2017) LPELR-41920(SC)

The law is also trite that the required standard of proof in civil cases is generally placed on the preponderance of evidence or balance of Probabilities The duty is on the Plaintiff to adduce evidence in support of his Pleadings. See Okechukwu V. A-G Rivers State (2012) 6 NWLR (Pt. 1295) 53 and Purification Technique (Nig) Ltd V. Jubril (2012) 18 NWLR (Pt. 1331) 109.” Per OGUNBIYI, J.S.C. (P. 20, Paras. D-F)

See also Ezemba v. Ibeneme (2004) 14 NWLR (Pt.894) 617

Based on the evidence before me, I find that the Claimant has shown, on a preponderance of evidence, that he is entitled to his 1^st Relief. I therefore hold that Claimant is entitled to his first Relief, which is, payment of the sum of N1,878,578 (One Million Eight Hundred and Seventy Eight Thousand Five Hundred and Seventy Eight Naira) being the balance of his 2% commission from the contract secured for the Defendants.

The 2^nd Relief sought in this action is for payment of N37,000 (Thirty Seven Thousand Naira) being Claimant’s February 2016 salary and 10 days worked in March 2016. The Defendant did not dispute this claim by any strand of evidence. I therefore hold that Claimant is so entitled.

In his 3^rd Relief, Claimant seeks general damages in the sum of N500,000.00. In this respect, and based on my finding that Claimant is entitled to his Claim, I award the sum N500,000.00 as sought. 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.

Claimant in his 4^th Relief seeks cost of the action assessed at N500, 000.00. Having already been awarded general damages, it will not serve the end of justice to grant this relief. I therefore refuse same.

On the application to strike out the name of the 2^nd Defendant, I find from evidence before me that there exists a close relationship between 1^st and 2^nd Defendants. When Claimant’s Counsel wrote to 1^st Defendant based on Claimant’s petition to the Office of the Public Defender, Defendants’ Counsel replied and attached details of a suit by both Defendants against the Claimant. Though already held not to be the act of the Claimant, exhibit D5 was prepared and tendered by Defendants, wherein the Claimant was purported to have relieved both Defendants from any further liabilities in connection to his work for both Defendants. Defendants cannot be allowed to approbate and reprobate. See ABEKE v. ODUNSI & ANOR. (2013) LPELR-20640(SC) where the Supreme Court held that:

It is trite law that parties as litigants are not permitted to approbate and reprobate in the conduct of their case See; Ezomo Vs. AG Bendel (1986) 4 NWLR (Pt 36) 448 at 462; Kayode vs. Odutola (2001) 11 NWLR (Pt.725) 659; (2001) 7 SCM 155 Osuji Vs Ekeocha (2009) 10 SCM 72 at 93. A party should not be allowed to make up a different case on appeal from what he pleaded before the trial court.” Per ARIWOOLA, J.S.C. (P. 25, paras. E-G).

The application to strike out the 2^nd Defendant is hereby refused.

Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, the case of the Claimant succeeds as follows –

Relief 1 succeeds. Defendants are hereby Ordered, jointly and or severally to pay to the Claimant the sum of Nl, 878,578.00 (One Million Eight Hundred and Seventy Eight Thousand Five Hundred and Seventy Eight Naira) being the balance of his 2% commission from the contract secured for the Defendants.
Relief 2 succeeds. Defendants are hereby ordered to pay to the Claimant, jointly and or severally the sum of N37, 000.00 (Thirty Seven Thousand Naira) being Claimant’s February 2016 salary and 10 days worked in March 2016.
Relief 3 succeeds. Defendants are hereby ordered to pay to the Claimant, jointly and or severally, the sum of N500, 000.00 (Five Hundred Thousand Naira) as general damages.
Relief 4 fails.
All the sums adjudged are to be paid within 30 days of this judgment, thereafter interest shall accrue at the rate of 10% per annum.

Judgment is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD