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REPRESENTATION PARTRICK J. OFEM Esq. for the claimant ESSIEN BASSEY OKON for the defendant JUGDEMENT The Claimant by a General form of Complaint dated and filed on 4th January, 2013and a accompany processes dated 20th May 2014 and filed on the 22nd May 2014, approached the Court for the following reliefs: 1. The Liquidated sum of N242, 594.00 (two hundred and forty two thousand, five hundred and ninety four naira) 2. 10% post judgment interest 3. N200,000.00 cost of action. The claimant’s case is that he was employed by the defendant, a limited liability company into the business of wood processing. That on his employment, he was issued an offer of employment which was stolen at Aba, the defendant on his complaint promised to issue him another one or a photocopy which was never done until the defendant purportedly shut down its office without paying the claimant his arrears of salaries. The claimant averred that he was employed in Lagos and was brought down to Calabar and thereafter in the month of May, he was served a letter of temporary closure of the company dated 28th May, 2010. The defendant is given notice to produce the Original at the trial. The claimant averred that his indebtedness is far above that calculated by the defendant in the sum of N242,594.00 (Two hundred and forty-two thousand, Five hundred and ninety four Naira) and prior to the aforesaid letter, the claimant neither went on any annual leave neither was he paid his leave entitlement. The claimant avers that the defendant as not and will never pay the claimant his financial entitlement unless this honourable court so orders, which is the reason why he instituted the present action. The defendants entered formal appearance on 20th May 2013 and filed their defence processes;- Statement of Defence, List of /witness, Witness Statement on oath of Emmanuel Essien, List of documents all dated 24th November 2014 as well as copies of the documents to be relied upon all of which were filed on the 24th November 2014. The case of the Defendant is that the claimant was employed on the 5th August, 2004, his letter of appointment duly pleaded and the claimant worked with the defendant until he voluntarily resigned from the company on the 7th day of August, 2008. The Defendant pleaded that the claimant had never been re- employed by the defendant after his resignation. The payment sip mentioned in the statement of facts are the six months arrears paid to him variously in the year 2009 which he requested for in his letter of resignation and was duly paid; his payment was less than one month because in the claimant’s resignation notice, he did not give one month notice as contained in the terms of his employment. The Defendant also pleaded that it does not owe the claimant any salary arrears and did not serve the claimant any notice of temporary closure as he was not in the employment of the defendant as at the year 2009. The exhibit put forward by the claimant is a Photostat gotten from somebody else and is not addressed to the claimant. The Defendant further stated that the document prepared and signed by one Marcelina Ebong was done without the consent of the Board of Directors of the Company. That the document titled “Union Forest Industries CFTZ Seven Months arrears payroll 2009/2010” was done with plenty errors and the claimant is not entitled to the N242,594.00 or any other monies stated in his statement of facts. The Defendant stated that it is in the interest of justice that the application of the claimant be disregarded as the defendant owes no money to the claimant. Trial commenced on the 25th February 2015 with the claimant testifying as CW adopted his written statement on oath which was marked Exhibit C1 and proceeded to tender four other exhibits. S/N TENDER BY NICN/CA/04/2013 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 25/2/2015 CW 2. Written statement on oath 22/5/2014 25/2/2015 C1 3. Some pay slips of the defendant 2/2009 25/2/2015 C2-C23 4. Notice of temporary closure 28/5/2010 25/2/2015 C3-C33 5. Demand letter from the claimant 22/11/2012 25/2/2015 C4 The case was thereafter adjourned to 12th March 2015 for defence. This matter thereafter underwent three adjournment at the instance of the defendants and on 1st July 2015 prayed the court for a short adjournment to explore out of court settlement. The matter was adjourned to 15th July 2015 and on the 15th July 2015 further adjourned to 22nd September 2015 for defence to open. The defendants not being forthcoming with either their report or settlement or defence the claimant applied to the Court on the 21st October that the defendants be foreclosed under Or 20 rule 10 (3) and the claimant be permitted to file their final written address. The matter was further adjourned to 11th November 2015, 17th December 2015 and 10th February 2016. On the 10th February the defendants appeared in court and asked having, been foreclosed, to propose an installmental payment plan to liquidate the amount claimed in the suit. The matter adjourned to 10th March 2016 for adoption of final written addresses. The claimant’s final written address was dated 9th February 2016 and filed on the same day. On 10th March 2016 being satisfied that the claimant’s written address had been served on the defendant together with the incidental hearing notices, the claimant adopted his Final written Address and the Defendant Counsel applied for and was granted leave of court to address the court viva voce in reaction thereto. The CLAIMANT’S ADDRESS dated and filed on the 9th February 2016, wherein the claimants raised one sole issue for determination: Whether the Claimant has proved his case to be entitled to judgment on this matter. Learned counsel to the Claimant Patrick Ofem Esq. submitted that in discharge of the burden of proof, the Claimant as CW1 on or about the 25th day of February, testified and adopted his written deposition; he also tendered five (5) exhibits. And that the claimant in paragraph 2 of his written deposition stated the circumstances surrounding the loss of his letter of appointment, however the defendant has not denied that the claimant is its staff and albeit the defendant abandoned its particulars of defence, the court has the powers to look at any document in the case file which was not tendered. Learned Claimant’s Counsel further submitted that the claimant duly pleaded and tendered his various pay slips to prove his employment with the defendant. More so, exhibit CW4, a business letter was served on the defendant and the defendant made no effort to deny its content which amounts to an admission of the Claimant’s claim. See, NAGEBU COMPANY (NIG) LTD. VS. UNITY BANK PLC. (2013) ALL FWLR PT 698 @ 871 H1; OLOMADE V, MUSTAPHA (2011) ALL FWLR PT.559 @ 1080 H1; BALARABE V.NADABO (2012) ALL FWLR PT.646 @ 516 H4. Learned counsel for the claimant further submitted that the defendant filed his written deposition on the 10th day of March, 2015 without more. In other words, abandoned his evidence and same goes to no issue. See, OLOMADE V. MUSTAPHA (2011) ALL FWLR PT.559 @ 1080 H.7. More so, Claimant has discharged the evidential burden placed on him by Section 131 (1) (2) (3) of the Evidence Act, 2011, Cap E.14, Laws of the Federation of Nigeria to be entitled to judgment and when the evidence of both parties are placed on an imaginary scale of justice, the scale will tint in favour of the Claimant. On 10th March 2015 the claimant adopted his final written address and adumbrated his position accordingly. During adumbration the claimant urged the court to enter judgement for the claimant as no contrary evidence is before the court and especially as the Defendants are aware of this matter and participated fully. The defendants were invited to address the court in line with the leave thitherto granted. The defendant’s Counsel Bassey O. Okon Esq, submitted that they the defendants had been served with the claimants final written address and urge the court in respect of the sum claimed to evoke the provisions of Or 25 rule 5 and allow/order the amount be paid in two installments in three months’ time as the company has been undergoing difficulties and is not in a position to pay the amount claimed immediately. Further urging the court to waive the cost being claimed as the defendant factory has closed down. The claimant in reaction submitted that the claimant had testified as to the cost he incurred arguing that the address of counsel cannot take the place of evidence urging the court to consider the claimant entitlement to cost in this suit. The Court’s Decision I have carefully summarized the evidence before the court, the arguments, contentions and submission of counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their submissions written and oral are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether, the claimant is entitled to the reliefs sought. The position of the law is that the claimant is obliged in court to prove his case to the satisfaction of the court and not rely on the absence or weakness of the defence. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the defendant had ample opportunity to defend this action but chose not to, in this regard I agree with the general argument that in a situation such as this, that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. (unreported) NICN/LA/25/201 1 delivered 6th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case placed before it by the claimant. See IFETA Vs. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] Vol. 6 MJSC, CONSOLIDATED RES LTD. Vs. ABOFAR VENTURES NIG. [2007] 6NWLR (Pt. 1030) 221 and OKOLIE Vs. MARINHO [2006] 15 NWLR (Pt. 1002) 316. But as this, however, does not mean an automatic victory for the Claimant, as stated above, the claimant must succeed on the strength of his own case and not rely on the weakness of the defendants case or the fact that there is no defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the claimant the burden of proof placed on him. See SECTION 131(1) and (2) Evidence act 2011, OGUNYADE Vs. OSHUNKEYE [2007] 15 NWLR (Pt. 1057). The claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO [2003]8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take away the duty imposed on the claimant to prove his case in accordance with the minimum evidence rule. In A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS (unreported) NICN/LA/275/2012 delivered 19th December 2012 this court held as follows;- “Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 9 therefore recognizes the right of a defendant not to defend an action filed against him or her. And by order 19 rule 2 where the defendant is absent at the trial and no good reason is shown for the absence, the claimant may prove his/ her case as far as the burden of proof lies on him upon her. This Rule, of course accords with the minimum evidential requirement, which is t the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE supra at 247” Mindful of this position of law I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant The rule of thumb in evaluating the claimants evidence is as follows;- “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour'' Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD.(2005) LPELR-2153(SC) (P. 9, paras. A-B). The case before this court is that the claimant pleads that he was employed by the defendants and in the course of his employ the defendant refused, failed and neglected to pay the sum of N242. 594. 00 being his due salaries and allowances. In proof of this the claimant pleaded his letter of appointment and gave notice to the defendant to produce this as his being lost, the defendant did not in any way contravene the fact that he was their employee. The claimant further tendered Exhibit C2-C2(3) being his pay slips from the defendant indicating how much he was paid as salary and as further evidence of his employment. As proof of the amount he was being owed, the claimant tendered Exhibit C3-C3(3) being the Notice of temporary closure of the defendants premises with an admission of owing staff salaries of 7 months. Exhibit C3(1) lists the claimants name as No. 29 showing the sum of N242, 594.00 in the column of seven month arrears payroll. The defendant never countered this document but stated in their statement of defence that the document was forged and that the claimant has since resigned his appointment before the issuance of the said C3. The defendant also frontloaded what they purported to be the claimant letter of resignation. In order to properly controvert the claimant averment, position and evidence the defendants would be required to present the court with the original copy of the said letter of resignation together with proof of the claimant’s handwriting. The law is that where a defendant fails to give evidence at the trial, his statement of defence is deemed abandoned. See CHIEF DUROSARO Vs. T.A.A. AYORINDE [2005] 3 SCM 14. In civil suit, the person who asserts has the primary burden of proving his assertion. ALHAJI TAJUDEEN IBRAHIM OLAGUNJU V.ALHAJA HABIBAT YAHAYA [2004] 11 NWLR (PT 883) @ 24 @ 54 PARA F-H. In law where a party to an action fails to testify in support of the facts in his pleadings those facts are deemed abandoned. UNION BANK OF NIGERIA & ANOR Vs. AYODARE & SONS (NIG) LTD. [2007] 4 SCNJ 181. As a claim or defence not canvassed at trial is deemed to be abandoned, see the case of UNION BANK OF NIGERIA & ANOR Vs. E. D. EMOLE [2007] 2 SCM 143. The claimants Exhibits C2-C2(3) put the claimants net salary at between N38, 305.00 in Exhibit C2(3), N22, 722.00 Exhibit C2(2) and N37. 504.00 for the months of February, April and May 2009, creating a monthly average salary of N32843.66 With the fluctuating deductions and taxes all indicate that the claimants salary was not fixed and ranges between M38, 000+ and N22000+I have no hesitation to find that of N242, 594.00 divided by 7 which gives an average monthly salary of N34, 656.28 represent the claimants outstanding salaries. The claimant made pleadings to the effect that the defendant also owed him salaries for the month of May and June as well as leave allowances but led no evidence in support of this pleadings. In law pleadings not supported by evidence are considered as abandoned. See the case of ARABAMBI & ANOR Vs. ADVANCE BEVERAGES IND. LTD. [2005] 12 SCM 75. The claimant are asking for cost and interest on the judgement sum. These claims are purely within the court’s discretion and as regards cost the position of the law is that the object of cost is “not to be awarded as a punitive measure against the losing party but for the purpose of meeting the legitimate expenses of the successful party either wholly or partially as the court may see fit. LAYINKA & ANOR Vs. MAKINDE & ANOR [2002] 8 SCM 117, apply the case of AKINBOBOLA Vs. PLISSON FISCO NIG. LTD. [1991] 1 NWLR (Pt. 1677) 270. The Apex Court in the case of HACO LIMITED Vs. S. M. BROWN [1973] 4 SC 107 held that “the award of cost involves a judicial discretion which must be exercised on fixed principles that is according to the rules of reason and justice and not according to a private opinion.” Having found that the claimant has effectively proved entitlement to the main relief sought and notwithstanding the volte face of the defendants I cannot end this judgment by addressing some words to the conduct of the defendant during this trial, this matter was instituted on 4th January 2013 and started de novo on 25th November 2014. I had alluded earlier in this judgement to the number of adjournment made at the defendant’s instance. In this matter only one witness testified whose evidence took up all of one afternoon all the delays and excuses of the defendant Counsel were responsible and had the effect of prolonging this matter unnecessarily, at a stage the defendants counsel informed the court that he needed time to explore settlement but never presented the court with any evidence of his attempt at settlement. Counsel in a suit are expected to be diligent and conscientious officers in the temple of Justice with the interest of justice paramount in all their endevours before the court. The conduct and tactics of the defendant counsel are condemnable and I condemn them in most certain terms. This is not the attitude or behaviour of an officer of the court in this dispensation. The submission of the defendant at adoption and adumbration is tantamount to an admission of the claimants case, a submission to the position of the claimant by urging the court to make an order for installmental payment of the sum being claimed before the court pronounced it judgments means the defendant has conceded to the claimants claims, particularly the claim for N242, 595.00 as per as his submission. See the case of CHIEF EDMUND I. AKAINWO & 4ORS. Vs. CHIEF O. N. NASIRIM & 3ORS [2008] 1 SCNJ 275. Where the Supreme Court held that “an admission in pleadings basically puts an end to proof. This is because by admission the parties no longer join issues on the matter. By law fact admitted require no further proof; SENATOR HOSEA EHINLANWO Vs. OLUSOLA OKE [2008] LPELR 1054 SC. OLOFU Vs. ITODO [2010] LPELR 2585 SC. For avoidance of doubt, the case of the claimants succeeds as follows. 1. The defendants shall pay to the claimant the sum of N242, 594.00 (two hundred and forty two thousand, five hundred and ninety four naira) being the amount to which they are indebted to the claimant for outstanding salaries in this suit. 2. Cost of this suit is put at N100, 000.00 (One Hundred Thousand Naira Only) payable to the claimant by the defendant. All sums to be paid within 60 days of this judgment thereafter an interest of 10% per annum will inure until the said sums are liquidated. This is the judgement of this court and it is hereby entered accordingly. …………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division