IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE
DATE: 24THOCTOBER, 2019 SUIT NO: NICN/CA/17/2018
BETWEEN
IJEOMA FIDELIA ……………………………. CLAIMANT
AND
DANSA AGRO ALLIED LIMITED (MPS) ……. DEFENDANT
REPRESENTATION
- EDOR J. EDOR Esq. for the Claimant.
- ATTA OCHINKE Esq. with JULIUS O. IDIGIE Esq., A.O ENABULELE Esq., C.B AMADI Esq., H.B TEEDU Esq., C. NTETEP Esq. and E.H GEORGE Esq. for the Defendant.
JUDGMENT
INTRODUCTION
This suit was instituted by the Claimant vide a Complaint dated and filed 22nd March, 2018. By an amended Complaint dated and filed 23rd November, 2018, the Claimant seeks the following reliefs:
- A DECLARATION that the failure of the Defendant to pay the Claimant her arrears of salary for the months of December, 2015 (N100,000.00); January, 2016 (N100,000.00); February, 2016 (N100,000.00); March, 2016 (N100,000.00); April, 2016 (N100,000.00); May, 2016 (N100,000.00); August, 2016 (N100,000.00); September, 2016 (N100,000.00); November 2016 (N50,000.00); January, 2017 (N100,000.00); May, 2017 (N100,000.00); July, 2017 (N100,000.00); August, 2017 (N3,846,000.00); September, 2017 (N100,000.00); October, 2017 (N100,000.00); November, 2017 (N100,000.00); December, 2017 (N100,000.00); January, 2018 (N100,000.00); February, 2018 (N100,000.00) and March, 2018 is unlawful, illegal and breach of Claimant’s contract of employment with the Defendant.
- AN ORDER directing the Defendant to pay the Claimant her entitled wages which stands at N1,953,846,00 (One Million Nine Hundred and Fifty Three Thousand Eight Hundred and Forty Six Naira) only with ten percent interest monthly till the total judgment sum that may be awarded by this Court is fully defrayed
- AN ORDER directing the Defendant to pay the sum of Ten Million Naira (10,000,000.00) as general damages to the Claimant.
SUMMARY OF FACTS
According to the Claimant, she was employed by the Defendant sometime in December, 2015 as personal assistant and secretary vide the instrument dated 1st December, 2015. The Claimant resumed work immediately. From the period of employment till instituting this suit, the Claimant’s salary was paid irregularly. As it stands presently, the total sum owed the Claimant is N1,953,846.00. That all civil avenues employed by the Claimant including causing a letter dated 5th January, 2018 written by Counsel in Legal Aid Council of Nigeria, Calabar Branch to the Defendant failed. This has resulted in the nature of reliefs sought by the Claimant in this suit.
On the part of the Defendant, she stated in her statement of defence dated 16th August and filed same day that from the letter of appointment given to the Claimant, her employment is for three months subject to renewal on new terms. That at the end of the three months which was February, 2016, the employment of the Claimant was not renewed. That for the three months period the Claimant worked, she was never owed by the Defendant.
COMMENCEMENT OF HEARING
Hearing in this suit commenced on the 12th of March, 2019 to which the Claimant herself testified as CW1. She adopted her witness statement on oath, tendered documents admitted as exhibits and she was cross examined subsequently. Thereafter, Claimant closed her case.
On the part of the Defendant, she did open her defence but chose to rest her case on that of the Claimant.
Thereafter, the case was adjourned to enable parties file, exchange and adopt their final written addresses.
CLAIMANT’S FINAL WRITTEN ADDRESS
In Claimant’s final written address dated 30th March, 2019 and filed 4th April, 2019, Learned Counsel to Claimant formulated three (3) issues for determination:
- Whether the Claimant was an employee of the Defendant until March,208 when the action was instituted against the Defendant
- Whether the Claimant is entitled to the reliefs prayed for in the Complaint.
- Whether the Defendant’s failure, neglect, and/or refusal to file and/or enter defence in this matter does not amount in law to an admission of all the claims of the Claimant
ARGUMENT
ON ISSUE 1: Whether the Claimant was an employee of the Defendant until March, 2018 when the action was instituted against the Defendant
Learned Counsel submitted that based on the averments of the Claimant in her Statement of Claim, it is obvious that the Claimant was employed by the Defendant for a period of three months subject to renewal. That the renewal was done verbally and Claimant continued working for the Defendant until she instituted this action.
Learned Counsel submitted that the trite law is that a contract of employment could be written, oral, expressed or constructive. He relied on Section 91 of the Labour Act, 1974.
Learned Counsel submitted further Exhibit C2A which is evident of continuous payment of salaries of the Claimant by the Defendant shows that Claimant was still in the employment of the Defendant after the expiration of the earlier three months.
ON ISSUE 2: Whether the Claimant is entitled to the reliefs prayed for in the Complaint.
Learned Counsel submitted that by virtue of Section 1 of the Labour Act, CAP L1, LFN 2004, an employee or worker is entitled to his wages. Therefore, given the circumstance of this suit, the Claimant is entitled to the reliefs sought.
ON ISSUE 3: Whether the Defendant’s failure, neglect, and/or refusal to file and/or enter defence in this matter does not amount in law to an admission of all the claims of the Claimant
Learned Counsel to Claimant submitted that the burden of proof is generally on the party who alleges. However, this burden is not static. He relied on Section 33 (1) & (2) of the Evidence Act. He argued that in the case herein, the Claimant filed and adopted her witness statement on oath. However, the Defendant did not file written statement on oath to controvert the case of the Claimant.
He therefore urged the Court to deem all the averments and claims of the Claimant as sufficiently substantiated same not having being controverted by the Defendant.
He therefore urged the Court to resolve this issue in favour of the Claimant.
DEFENDANT’S FINAL WRITTEN ADDRESS
On receipt of Claimant’s final written address, Learned Counsel to Defendant filed an their final written address dated 7th May, 2019 and filed 8th May, 2019 formulating four (4) issues for determination:
- Whether the Claimant was an employee of the Defendant until March, 2018 when this action was instituted by against the Defendant
- Whether the Claimant is entitled to the reliefs prayed for in the Complaint
- Whether the Defendant’s failure, neglect, and/or refusal to file and/or enter defence in this matter does not amount in law to an admission of the claims of the Claimant.
- Whether the suit of the Claimant was instituted by due process of law to confer jurisdiction on this Honourable Court
ARGUMENT
ON ISSUE 1: Whether the Claimant was an employee of the Defendant until March, 2018 when this action was instituted by against the Defendant
Learned Counsel to Defendant submitted that Exhibit C1 which is the employment letter of the Claimant clearly stated that her employment was for a fixed period of three months subject to renewal based on the terms of a new contract. He submitted further that the employment of the Claimant with the Defendant is expressed in writing, therefore both party are bounds by same. He relied on the dictum of per Karibi-whyte JSC in Olaniyan & 2 Ors V. University of Lagos (1985) 2NWLR (Pt. 9) 599 @ 605 where his Lordship stated:
Where a contract is in writing, the parties are bound by the express terms and conditions so stipulated.
He submitted in the instance case, the employment of the Claimant was to last from December, 2015 to February, 2016 reflecting the three months stated in the employment letter. Therefore, as at the time Claimant instituted this suit, her employment had long ended.
He therefore urged the Court to find and hold that as at the time the Claimant instituted this suit, her employment had long seized.
ON ISSUE 2: Whether the Claimant is entitled to the reliefs prayed for in the Complaint
Learned Counsel to Defendant submitted from the pleadings and evidence adduced at the trial of this suit, Claimant failed to prove her entitlement to the reliefs sought. He went further to highlight the reliefs sought by the Claimant, documents tendered in proof of same and answers elicited from CW1 during cross examination.
ON ISSUE 3: Whether the Defendant’s failure, neglect, and/or refusal to file and/or enter defence in this matter does not amount in law to an admission of the claims of the Claimant.
Learned Counsel submitted that granted, the general position of the law is that evidence not controverted by the opposing party is bound to be believe by the Court. However, the further position of the law is that for the unchallenged evidence to be believed by the Court and to ground liability, it must possesses the character needed to show that the Defendant committed the act. He referred Court to Uzor V. Boniface Anyika (2002) FWLR (Pt. 107) 1155.
It is the submission of Learned Counsel that given the circumstances of this case, the evidence of Claimant cannot be termed unchallenged as same was discredited on cross examination.
He therefore urge the Court to resolve this issue in favour of the Defendant.
ON ISSUE 4: Whether the suit of the Claimant was instituted by due process of law to confer jurisdiction on this Honourable Court
Learned Counsel submitted that the originating process of the Claimant filed 29/11/2018 was not signed, therefore, same robs the Court of the requisite jurisdiction on this suit.
Conclusively, he urged the Court to dismiss this suit for lacking in merit and for being gold digging
CLAIMANT’S REPLY ON POINT OF LAW
On receipt of Defendant’s final written address, Learned Counsel to Claimant filed a reply dated 13th May 2019 and filed same day to which he replied on points of law to the Defendant’s final written address, and adumbrated further on their earlier final written address.
COURT
Having gone through the case of the Claimant, evidence adduced in this case and the submissions of Counsel to the Claimant and Counsel to the Defendant, this Court has distilled a sole issue for determination, to wit:
Whether given the circumstances, the Claimant has proved his case to be entitled to the reliefs sought.
Before addressing the issue distilled above, I will like to first address the 4th issue formulated by the Defendant being that it touches on the jurisdiction of the Court to entertain this suit. The Defendant, relying on Order 6 Rule 1(3) of the Rules of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017; Odusote V. Odusote (2012) 3NWLR (Pt. 1288) 478 @ 497 – 498 Paras H – A; Owners of MV Arabella V. NAIC (2009) 11 NWLR (Pt. 1097) 182 @ 205 – 206 paras G-C and Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) 377 @ 394 Paras E- G, submitted that the rules of this Honourable on signing and sealing of originating process by the Registrar of this Honourable Court is mandatory and failure to so do renders the originating process void. This Court wishes to state that in the case herein, the originating process of the Claimant was filed by the Claimant on 22nd March, 2018. On changing of Counsel, the originating process was amended on 23rd November, 2018. While agreeing with the submissions of Counsel to the Claimant that in the event that the Court’s Registrar failed to seal and sign the process the sins of the Court’s registrar cannot be visited on the Claimant, I will want to observe that what of in the event that Claimant’s Counsel fails to sign his own part of the originating process, should the sin of Claimant’s Counsel be visited on the Court’s Registrar? I have made this observation in the light of the fact that in the Claimant’s originating Complaint issued by Ukpono Ituen Esq, it was not signed by the said Ukpono Ituen Esq. Now while taking cognizance of the fact that the Originating Complaint was amended and in the amended copy both the Registrar and Counsel to Claimant sealed and signed the process, the question on my mind therefore is the effect of an originating process that was later amended. In Uzodinma V. Izunaso (2011) Vol. 5 (Pt. 1) MJSC P.27 @ 32. The Supreme Court held thus:
The law on the effect of amendment of a pleadings is that the amendment takes effect from the date on the date of the original document. Thus, leave is granted and pleadings duly amended. The action continues as though the pleadings had been in the amended form right from its original date. The amendment thus takes effect retrospectively from the date of the pleading.
From the foregoing, even though the initial process of the Claimant was not signed, in the eyes of the law, the valid Originating process of the Claimant before the Court is the amended one filed on 23rd November, 2018 same to take retroactive effect from 22nd March, 2018, and I so hold. In this vein, the arguments of the Defendant on the defects pointed out on the Claimant process filed on 22nd March, 2018 are of no moment, and I so hold. For what it is worth, amendment of processes are meant to correct defects, accidentally slip etc. if these defects, accidentally slip etc have been corrected by amendments, it will amount to wasting the time of this Honourable Court referring to such earlier defects already taken care of by amendment.
That said, the Court will proceed to address the issue distilled above.
The case of the Claimant is that from December, 2015 to March, 2018 she worked for the Defendant. For this period that she worked, she was owed salary for 20 months amounting to N1,953,846.00. In this 20 months that she was owed, apart from the month of November, 2016 when she was owed N50,000.00 (Fifty Thousand Naira) and the month of August, 2017 when she was owed the sum of N3,846.00 (Three Thousand Eight Hundred and Forty Six Naira), she was owed the sum of N100,000 thousand each for the remaining months in the twenty months. It is apposite to state that the Defendant rested their case on that of the Claimant so technically speaking, the Defendant has no defence to the case of the Claimant.
However, be that as it may, this does not remove the required onus of proof that is usually placed on the party who alleges. See Alh. Tajudeen Ibrahim Olagunju V. Alhaja Habibat Yahaya (2004) 11NWLR (Pt.883) 24, the Court of Appeal had this to say:
In a civil suit, the person who asserts has the primary burden of proving his assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the Plaintiff.
From the foregoing, it is obvious that it is of no moment whether the Defendant testified or not. The burden of proof still lies squarely on the shoulders of the Claimant who alleges the existence of the fact that between the period of December, 2015 to March, 2018, she worked with the Defendant; that between this period, she was owed salary for 20 months.
On employment matter, what the Court look at to determine employment and the terms guiding the employment is the employment letter. In the absence of employment letter, the Court can look into the conduct of the party to determine if employment relationship exists. See the dictum of Per Orji Abadua (JCA) in Cway Nig Drinking Water Science and Technology Co. Ltd V. Ogwuche (2016) All FWLR (Pt.848) P.684 paras F-G where it he stated thus:
I think it pertinent to mention that the general rule is that contract of employment may be in any form, and not necessary in writing. A contract of employment can be inferred from the conduct of the parties
In the case herein, the Claimant pleaded her employment letter and tendered same in evidence. From the wordings of the Claimant’s letter of employment, her employment was for a period of three months and is also subject to renewal. The implication is that at the end of three months if the employment is not renewed on new terms or existing terms, the employment automatically terminates based on the principle of effluxion of time. Whereas there is no evident before the Court evidencing renewal of the employment, the Claimant however averred that she worked from December, 2015 to March, 2018 when ordinarily the contract of employment ought to have terminated naturally in February, 2016. In Claimant’s final written address, Claimant also stated that the employment contract was renewed verbally. That the contact was renewed verbally was introduced for the first time in Claimant’s final written address, it was never pleaded. Therefore as lofty as it may look, written addresses cannot be used to replace pleadings or evidence. See Okuleye V. Adesanya (2014) 12NWLR (Pt.1422) P.521 @539 paras B – C where the Court held that Counsel’s address, no matter how convincing, cannot take the place of evidence.
Furthermore, this Court wishes to state that the document tendered in evidence as the employment letter of the Claimant, Exhibit C1, speaks for itself and, if the Claimant was to continue to insist that her employment still subsisted from December, 2015 to March, 2018, then she must do better than the letter she tendered in evidence as her employment letter because in the absence of renewal of her contract of employment, her employment terminated in February, 2016. The document tendered as employment letter speaks for itself, it does not contain any ambiguity. In this light, the Court can only give the wordings of the said letter of employment its literary meaning. If the employment says three months subject to renewal, it can never be the duty of this Court to rewrite the letter and say that the employment extended beyond the stated three months. See UBN V. Soares (2012) 11NWLR (Part 1312)550@556 where the Court held:
The Courts are not allowed to make or rewrite agreements between the parties. The only duty of the Court is to interpret those clauses written in the contractual document. Where however the terms of the contract are not clear and unambiguous, the Court of law can move out of them and invoke the general rules of contract applicable to the nature of contract of service.
From the foregoing, this Court finds and I so hold that in the absence of any document to the contrary, whatever contractual relationship created by the employment letter of the Claimant terminated naturally at the end of February, 2015.
In the case herein, the Claimant averred that she continued working after February, 2015 till March, 2018 prior to the institution of this suit. The implication is that the Claimant never stopped working until when she decided to institute this suit. Having earlier held that by the employment letter tendered by the Claimant her employment terminated naturally in February, 2015, the Court is now left with the option of inferring from the conduct of the parties if employment relationship existed beyond February, 2015 to March, 2018. The position of the Claimant is that throughout this period, she employed all civil means asking the Defendant to pay her what they owe her. She even consulted the services of a Counsel in the Legal Aid, Calabar Branch to write a letter to the Defendant. If such letter ever exists, it was never tendered in evidence.
It is settled law that a Claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case. See Isamatu A. Ashiru V. Adetotun Olukoya (2006) 11 NWLR (Pt.990) 1. I must also add that the success of the case of the Claimant cannot be predicated on the absence of a defence by the Defendant. Therefore, that the Defendant fails to defend this case does not suspend or eliminate the need for the Claimant to lead evidence in support of her pleadings. This is more so because pleadings do not constitute evidence. See IBWA Ltd V. Imano Nig Ltd (2001) FWLR (Pt.44) @444 Para A – B, where the Supreme Court restated the settled law that pleadings cannot constitute and do not amount to evidence. Therefore, in the case herein, the Claimant who is alleging that she continued working even after the expiration of the time stated in her employment letter must lead evidence to prove that by her conduct, she continued working for the Defendant and by conduct, the Defendant continued seeing her as their employee. Besides the pleadings of the Claimant, there is no evidence before me that the Claimant continued working till March, 2018, and I so hold. There is also no evidence before me by which the Court can infer that by the conduct of the parties, Claimant and Defendant, the Claimant actually continued working with the Defendant till March, 2018, and I so hold.
While moving forward, it is apposite to state that this Court has not lost sight of the fact that among the 20 months pleaded that the Claimant was not paid, the three months of December, 2015; January and February, 2016 were included to which the Claimant pleaded the sum of N100,000.00 (One Hundred Thousand Naira) for each of the months. In support of this she tendered her bank statement. The Defendant on their part objected strongly to the tendering and admissibility of this document on the ground that it was not frontloaded. He relied on the decision of the Court of Appeal, Enugu Division in Nweze V. Hon. Minister of Education (2018) LPELR – 43921 (CA) pp 21 – 24 paras E – B where it was held thus:
The quintessence of the concept of frontloading of evidence as enacted in the 2006 Anambra State High Court (Civil Procedure) Rules is to prevent an ambush of the Defendant by the Plaintiff. It is akin to the Plaintiff putting all his cards on the table so that the Defendant is not taken by surprise as to details of the action he was going to face in Court and how the Plaintiff intends to prove his case.
In response to the objection of the Defendant, the Claimant, while admitting that the rules of Court on frontloading are intended to arrest springing surprises on the Defendant, however posited that by virtue of paragraph 7 of Claimant’s statement of claim by which the said document was pleaded as well as by virtue of the fact that the said document was listed in the list of documents to be relied on by the Claimant, this have defeated the element of surprise complained of by the Defendant.
Now for a kill document you wish to rely on as the document evidencing salary you were paid and the one you were not paid; a document containing several pages, I do not think it can ever serve the interest of justice to hide such a document from the Defendant and await the moment you will enter the witness box to shout pick-a-boo and tender such a document from the blues when the Defendant was never given a chance to see and if necessary, register their objection and observation in their pleadings/statement of defence. It was in the case of Olaniyu V. Elera (2007) 8NWLR (Pt.103) Page517 @537 – 533 that the Court held:
Where the Plaintiff fails to plead relevant facts that would present an opportunity for the Defendant to join issues with him, it is his own failing and is fatal to his case.
The decision above has to do with failure of a Claimant to plead necessary facts that can prepare the mind of the Defendant on what to plead as his defence. By analogy, I will like to add that a Claimant who fails to frontload a pleaded document to the Defendant in order to offer him the opportunity of seeing the document beforehand and prepare a proper defence/observation to that document is courting a miscarriage of justice and fair hearing which justice and fair hearing is for all parties before the Court, and I so hold. A Claimant who hides a fundamental document from the Defendant up till trial breaks the law on frontloading and being that the document not frontloaded is a fundamental document, even if such a Claimant cries to the high heavens for equity to prevail, equity will not answer him for equity does not answer to those who come with unclean hands but clean hands. The Claimant soiled her hands when she decided to hide a fundamental document she was supposed to frontload as evidence of what she was paid and what she was not paid from the Defendant. By so doing, she denied the Defendant the opportunity to affirm or deny if she paid or didn’t pay the said money for the purpose of salary. Failure to frontload such a fundamental document is fatal to the case of the Claimant, and I so hold.
From all that have been said above, the Court is not minded to accord any probative value to the document tendered as bank statement of the Claimant, and I so hold.
On the matter of the letter alleged to be written by Counsel to the Claimant to the Defendant, which letter was never tendered, this Court wishes to state that the onus lies on the Claimant alleging that her Counsel wrote the Defendant to lead evidence that such letter was indeed written. It is not enough to just plead it, but it is mandatory to just prove it. Be that the suit herein is intended to recover the debt owed the Claimant by the Defendant, the presence of a letter of demand would have sufficed for the Court to draw the conclusion that the cause of action in this suit has indeed accrued. See Kolo V. FBN (2003) 3 NWLR (Pt.806) 216 where the Court held that it is trite law that in an action for recovery of a debt, the cause of action accrues upon demand for the payment of the debt. If no demand is made, a cause of action does not arise and no action can be commenced. In the case herein, in the absence of a demand letter to the Defendant, I really cannot say that a cause of action accrued before the Claimant filed this suit. Furthermore, given the failure of the Claimant to sufficiently prove her case, this Court is in no position to grant claims that were not sufficiently proved
From all that have been said above, I find no merit in the case of the Claimant.
Subsequently, the case of the Claimant fails and same is hereby dismissed.
Judgment is entered accordingly.
…………………………………..
HON. JUSTICE M.N ESOWE
