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REPRESENTATION PARTRICK. J. OFEM Esq. for the claimant E.E.AIKOM for the defendant JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 22nd May, 2014 against the defendants. The claimant sough the following reliefs. 1. Liquidated sum of #243,297.00 (Two Hundred and Forty-Three Thousand, Two Hundred and Ninety Seven naira) being arrears of salaries owed the claimant. 2. 10% post judgement interest. 3. 200,000 cost of action. The Claimant case on the record was that the claimant was employed by the defendant on the 3rd of June, 2002 as a machine operator in Lagos and was later, along with others brought to work in the defendant’s Head Office cum factory in Calabar Free Trade Zone, and that on or about the 28th of May, 2009, the defendant issued the claimant a letter of temporary closure of its factory at the EPZ, Calabar, in which the defendant tabulated the names of its workers and various sums representing the arrears of salaries and that the claimant is number 24 on the said letter. The Claimant pleaded that he waited for years in vain for the defendant to liquidate its indebtedness to him all to no avail and proceeded to write the defendant on or about the 22nd of November, 2012 demanding the debt. To the claimant, it is the refusal, neglect and failure to pay his arrears of salaries that he approached this Honorable Court claiming against the defendant the reliefs above. The defendants entered appearance via a memorandum of appearance dated and filed on the 20th May 2013. The defendant thereafter filed their statement of defence, List of documents with copies of the document to be relied upon on the 4th December 2013 and filed their defendants witness statement on oath on the 10th March 2015. The Defendant case on the record is that stated sometime in October, 2009, the Cross River State Government placed a ban on the exploitation of wood which is the main raw material of the Company and as a result of the ban on wood, the company could not undertake the production of wooden products and stopped work. Since there was no wood to work with most members of staff who were carpenters, machine operators stayed away from work including the claimant and were gainfully employed in other establishments; and that in the claimant’s case, he was suspended by the factory manager for gross misconduct for absenteeism in 2009. The Defendant pleaded that the Chairman of the Board of Directors stated that the claimant’s claim cannot be construed to be a liquidated debt when he did not come to work during the period he claimed as the claimant did not attend work for the 7 months preceding the closure of the company as a result of his suspension for gross misconduct by the factory manager for absenteeism. To the Defendants the documents relied upon by the claimant could not have received the ratification of the Board of Directors of the company as could be deduced from the letter dated 15th June, 2010 to the Administrative Manager of the company. Pleading that the claims of the claimant are not liquidated and that this suit was earlier filed in the Cross River State High Court and the Learned trial Judge, Hon. Justice Ikpeme had ruled that the claim was not liquidated, directing the claimant to file pleadings and call evidence to prove his case which he abandoned and rather brought the matter before the Industrial Court. Trial commenced on the 6th May 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. Claimant’s Exhibits. S/N TENDER BY NICN/CA/05/2013 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 6/5/2015 6/5/2015 CW 2. Written statement on oath 22/5/2014 6/5/2015 C1 3. Offer of appointment 14/9/2006 6/5/2015 C2 4. Confirmation letter 14/9/2006 6/5/2015 C3 5. Notice of temporary closure 28/11/2012 6/5/2015 C4 6. Demand for the sum of two 22/11/2012 6/5/2015 C5 The case was thereafter adjourned to 1st July 2015 for defence and on 15th July 2015 prayed the court for a short adjournment to explore out of court settlement. This matter thereafter underwent another adjournment at the instance of the defendants. 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 was adjourned to10th 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 was dated 8th February 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 judgement in this matter. Learned Counsel to the claimant Patrick J. Ofem Esq. submitted that exhibit C5 was duly served on the defendant of which no effort has been made to deny its content, furthermore, that exhibit C5 is a business letter which necessitated a response and failure to give any is an admission of the claimant’s claim. He further submitted that where a party fails to respond to business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the content of the letter. NAGEBU COMPANY (NIG.) LTD. v. UNITY BANK PLC (2013) ALL FWLR (PT. 698) 871 H1. To the claimant failure by the defendant to respond to exhibit C5 is an admission and fact admitted need no proof. OLOMADE v. MUSTAPHA (2011) ALL FWLR (PT. 559) 1080 H1; BALARABE v. NADABO (2012) ALL FWLR (PT. 646) 516 H4. Claimant’s Counsel also submitted that the law is that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of a facts, which he asserts shall prove that those facts exist and that the claimant has discharged the evidential burden placed on him by Sec. 131 (1), (2) & (3) of the Evidence Act, 2011, Cap. E.14 Laws of the Federation of Nigeria to be entitled to judgment. Learned Claimant Counsel contended that the defendant filed his Written Deposition of 10th March, 2015 without more, thus, he abandoned his evidence and same goes to no issue. OLOMADE v. MUSTAPHA (2011) ALL FWLR (PT. 559) 1080 H7. Furthermore, that it was held that facts averred in pleadings and in respect of which evidence is not adduced are deemed abandoned. IKEM v. VIDAH PACKAGING LTD. (2011) ALL FWLR @ 1476 H. 10. On the 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 E. Okon Esq. adopted his address in NICN/CA/ 04/2013 before this court and in CA / 04 the defendant 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 defendant further informed the court that they, the defendants were willing to pay the sum claimed and on the same terms as 04/13 but urged the court not to award costs as the company is insolvent. 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 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 place 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 or 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 way 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 minima evidential requirement, which is 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 to neglected to pay the sum of N243. 297. 00 being his due salaries and allowances. In proof of this the claimant pleaded his letter of appointment Exhibit C2 and his confirmation Exhibit C3. As proof of the amount he was being owed, the claimant tendered Exhibit C4 being the Notice of temporary closure of the defendants premises with an admission of owing staff salaries of 7 months. Exhibit C4(1) lists the claimants name as No. 24 showing the sum of N243. 297. 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 did not pass through audit and frontloaded what they purported to be a letter from the Chairman of the defendants addressed to the Administrative Manager describing the circumstances of Exhibit C4 as premature and stating the Boards intention not to honour the payment of outstanding salary. In order for the court to give credence to this letter from the chairman it would be required to indicate that it was at the very least issued to someone and or received by another person. What the defendants have presented is just a typed letter bereft of any acknowledgement what so ever. By the authority of NLEWEDIM v. UDUMA (1995) 6 NWLR (PT. 402) 383 @ 394, PARA. B, in law, proof of receipt/service of document is established by: a. Dispatch indicating the receipt; or b. Evidence of dispatch by registered post; or c. Evidence of witnesses, credible enough, that the person was served with the document in question. It is only when this receipt or delivery is established can the contents be considered to have been communicated and intended for the purpose contained therein. The instant case the defendant have, just presents what was typed up by them and nothing more. In addition 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 a 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 [200] 2 SCM 143. The claimant by his Exhibits C2 and Exhibit C3 put before the court proof that he was an employee of the defendants but no concrete salary as to what his salary was as at May 2010. Exhibit C2 puts his salary at N15, 000.00 as at 2008 yet by Exhibit C4 the claimants outstanding salaries for 7 months is N243, 197.00 divided by 7 = N34, 756. 71. I have no reason to doubt the authenticity of Exhibit C4. This document is a clear document of the debt. Attached. The claimant also pleaded that the defendant also owed him his leave allowances for the period he worked for the claimant 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 is 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.” I cannot end this judgment without condemning the unserious, tardy and unprofessional conduct of the defence counsel who despite repeated adjournment was unable to put in his defence and instead of relying on the avenues/options provided by the tenets of civil procedure and or the rules of this court; particularly in Or 8 on the National Industrial Court Rules 2007, the defendant counsel preferred to present one excuse or the other to drag this case till this date, at one stage it was his witness not available then, the witness was hospitalized, and he was trying to substitute defence witness and at one stage he wanted to explore settlement and none of these excuses was ever followed through or justified before the court, only for the defendants counsel to come to court after ten months since the last hearing and inform the court that the defendant was willing to make installmental payment and seek a waiver of costs. Labour matters require speedy resolution as the issue in context more often than not impacts on the overall Labour environment. A hackney labour maxim is that it is better to have a wrong labour decision quickly than to have the best decision after a prolonged period. The time wasted in this court by this defendant counsel can never be regained. The defendant counsel wasted the precious time of the court and the litigant and other court users who have been deprived their legitimate attention because the courts dockets was clogged with a matter being truncated by a non performing defence. This attitude and conduct is intolerable and deserves this court’s strongest condemnation. I condemn this conduct most vehemently. Now 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 patter. 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, 595.00 (Two Hundred and Forty Two Thousand, Five Hundred and Ninety Five 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 N50, 000.00 (Fifty 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