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<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">Y. A. Ajayi with C. W. Bello, O. Olakanmbi & L. O. Olakanmi Mrs.for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif"">U. A. Sampson for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT</span></u><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">By her <i>General Form of Complaint </i>dated and filed 29/1/15, the Claimant approached this Court for the following reliefs -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">1. An Order that the Defendant pay the total sum of Four Hundred and Eighty Thousand Naira (=N=480,000.00) only as arrears in salaries and benefits in the following particulars -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> a. =N=168,000.00 as arrears in basic salary for the period of January 2011 to December 2012 and =N=56,000.00 for the period June 2013 to January 2014.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> b. =N=72,000.00 as arrears in housing allowance for the period of January 2011 to December 2012 and =N=24,000.00 for the period of June 2013 to January 2014.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> c. =N=72, 000.00 as transport allowance for the period of January 2011 to December 2012 and =N=24,000.00 for the period of June 2013 to January 2014.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> d. =N=48,000.00 as medical allowance for the period of January 2011 to December 2012 and =N=16,000.00 for the period of June 2013 to January 2014.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">2. An Order that the Defendant pay the sum of =N=200,000.00 as general damages. Total =N=680,000.00 only.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The Claimant's writ was accompanied by statement of facts and all other frontloaded documents as mandated by the rules of Court. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The Defendant entered an appearance on 2/7/15 and on the same day filed a statement of defence attaching with it a witness statement on oath. No document was frontloaded along with the defence processes.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The trial of this case commenced on 7/7/15. On that day the Claimant testified as CW1, adopted her witness statement on oath of 29/1/15 as her evidence in chief and tendered 5 documents as exhibits. The documents were admitted without objection and marked as <i>Exh. C1-Exh. C5. </i>The case of the Claimant as seen from her pleadings are that she was an employee of the Defendant and that for the period stated her salaries and other benefits were not paid to her by the Defendant up till the time she resigned from her employment. Under cross examination on 3/11/15, the witness stated that she was a student of the <i>National Open University of Nigeria </i>studying Entrepreneurship and Business Management; that she joined the Defendant in 2013; that her employment was formal because she had an application; that she was no employed on humanitarian ground; that she did not lobby for the employment; that she was employed as <i>Executive Marketer; </i>that at the time of her employment she was staying with her parents but moved to Abule Egba in 2006; that she was not on commission with the Defendant and that her husband used to give her money to go to work. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On 3/11/15, the Defendant opened its defence and called one Enoch Jonah as its lone witness. Witness adopted his witness statement on oath dated2/7/15 as his evidence in chief and prayed the Court to dismiss the case of the Claimant. The case of the Defendant is a complete denial of any liability of arrears of salaries and benefits to the Claimant. Under cross examination, the witness stated that he was employed by the Defendant in 2009; that he met the Claimant as a staff of the Defendant; that he was paid his salary then; that he has not been paid salary for 2013; that he was paid salary in 2011 and that he does not know if the Claimant was paid salary for 2013. There was no re-examination.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">At the close of hearing on 3/11/15, learned Counsel on either side were directed to file their final written addresses in accordance with the rules of Court. The 5-page final written address of the Defendant was dated and filed on 9/2/16. In it Counsel set down the following four issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Claimant's case can succeed in the presence of material and fundamental contradictions.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. What is the probative value of <i>Exh. C4 </i>the same being a photocopy and notice to produce having not been issued and served on the Defendant to produce the same before tendering the photocopy in evidence.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. What is the evidential value of the Claimant's written statement on oaths the same being signed by the Claimant at the office of the Public Defender and not before the Commissioner for Oaths.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Claimant has proved her case.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 1, it is the submission of Counsel that the case of the Claimant is full of material and fundamental contradiction. Learned Counsel submitted that reading averments in paragraph 5 together with paragraph 7 of the statement of facts, it is obvious that the Claimant is claiming salary and allowances from January 2011 to December 2012; June to December 2013 and that the Claimant tendered a letter of resignation dated 31/12/13 giving one month's salary in lieu of notice and that the particulars of claim in the relief section of the statement of facts contradict the averments and pleadings in paragraph 5 of the statement of facts as follows-that in paragraph 1 (a)-(d) the claimant is claiming arrears in basic salary and other entitlements for a period of January to December 2012 and June 2013 to January 2014 whereas in paragraph 5 of the statement of facts the Claimant is alleging that the Defendant failed to pay her salaries and benefit from January 2011 to December 2012 and June to December 2013 and that the particulars of claim in paragraph 1(a) to (d) of the statement of facts does not show any deduction of one month's salary in lieu of notice as pleaded in paragraph 7 of the statement of facts. Learned Counsel submitted that the Court will doubt any piece of evidence where there is a contradiction in respect of material fact and that it is not the duty of the Court to engage in mathematical calculations or subtractions in order to ascertain the months and amount the Defendant is indebted to the Claimant. Citing <i>Abatan v. Awudu (2004)7 NWLR (Pt. 902) 430 at 455 & Fatoba v. Ogundahunsi (2003)14 NWLR (Pt. 323 at 347 </i>learned Counsel urged the Court to dismiss the case of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that <i>Exh. C4 </i>a photocopy of the letter of resignation was tendered without serving a notice to produce on the Defendant and that same has no probative value citing <i>UBN Plc v. Idrisu (1999)7 NWLR (Pt. 609) 105 & Olaogun Ent. Limited v. S.J & M (1992)4 NWLR (Pt. 235) 361. </i>Learned Counsel preyed the Court to hold that the Claimant has no legal entitlement to tender photocopy of <i>Exh. C4 </i>since no notice to produce was issued and served as required by law.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 3, learned Counsel argued that the CW1 confirmed under cross examination that she signed her witness statement on oath at the office of the Public Defender instead of before a Commissioner for Oaths and that being an affidavit evidence not properly deposed to the Court should dismiss the case of the Claimant on the strength of this fundamental error since in the absence of a statement on oath, the case of the Claimant has no limb to stand on.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 4, it was the submission of learned Counsel that the has not proved her case citing section 131, Evidence Act, 2011. Counsel submitted that there is nothing before the Court to put on an imaginary scale and if there is anything at all, it is weightless. Learned Counsel urged the Court to dismiss the case of the Claimant in its entirety.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 13/4/16. It is of 7 pages in which learned Counsel set dow 2 main issues for determination as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">1. Whether the Claimant has proved her case to be entitled to the claims and reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">2. Whether the Claimant is entitled to the claims and reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On issue 1, learned Counsel submitted that the law is trite that he who asserts must prove same especially when an employee claims not to have been paid arrears of salaries and allowances, citing <i>Eyo v. Onuoha (2011)All FWLR (Pt. 574)1 at 23; </i>that the Claimant has proved her case with cogent and compelling evidence before the Court; that the Claimant while testifying for herself and under cross examination was able to successfully prove that the Defendant was still owing her arrears of salaries and allowances and the <i>DW1 </i>also testified that he too was being owed salaries by the Defendant during the period in dispute. Counsel submitted that the burden has now shifted to the Defendant who has failed to establish that the Claimant is not entitled to the extant claims before this Court and that parties agreed that the Claimant was a former staff of the Defendant. Counsel further referred to the statement of defence filed and submitted that there is nowhere in that pleadings where the Defendant claimed to have paid the arrears of salaries for the period in dispute but rather that it merely offered a general traverse. Counsel submitted that an employer has the obligation to pay salaries of its workforce citing <i>Overland Airways Limited & Caverton Helicopters Nigeria Limited Suit No: NICN/LA/19/2011, Browining & Ors. v. Crumlin Valley Collieries Limited (1926)1 KB 522 & Section 14, Labour Act.<o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">On whether the Defendant should pay damages for its act of unlawfully withholding the Claimant's salaries, Counsel cited <i>Jerome A v. Leaders & Company Limited (2014)49 NLLR (Pt. 161) </i>and that by Section 19(d), <i>National Industrial Court Act, 2006, </i>this Court is empowered to make award of compensation or damages in any circumstances contemplated under the Act or any other Act of the National Assembly dealing with any matter the national Industrial Court has jurisdiction to hear. Learned Counsel submitted that it is clear that the Claimant is entitled to damages as sought adding that the Defendant did not in its 5-paragraphed statement of defence offer direct evidence to show that the Claimant is not entitled to the claims sought before the Court. Counsel urged the Court to grant the reliefs sought by the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">I read and understood all the processes filed by learned Counsel on either side. I watched the demeanour of all the witnesses, reviewed and evaluated all the exhibits tendered as well as listened to oral argument of canvassed by both learned Counsel. Having done so, I narrow the issue for the just determination of this case to be one as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> Whether the Claimant has proved her case to be entitled to all or any of his claims before the Court.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Before I consider the issues set for determination, I deem it necessary to make a remark or two on some argument canvassed by Counsel in their final written address. On page 4 of her final written address, learned Counsel to the Defendant had submitted that <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> '' ... during cross examination the claimant stated boldly that she signed the written statement on oath at the office of the public defender at 2/8 Iyun Road, Off Fubsho Williams Avenue, Surulere, Lagos''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The cross examination of the <i>CW1</i> commenced at exactly 11.40 am on 3/11/15 and ended at about 11.50 am. I have reproduced the entire cross examination in this Judgment. There was never a time the <i>CW1</i> gave evidence along the line as stated by learned Counsel. The record of proceedings is a public record. Where then did learned Counsel get that testimony from? Could this be a case of manufacturing witness testimony under cross examination to support a line of argument of Counsel?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The generally accepted principle of law and which also accords with commonsense is that the burden of proof is on he who asserts. See <i>Chairman, EFCC & Anor. v. Littlechild & Anor. (2015) LPELR-25199 (CA).</i> The proof required is by cogent, concrete, credible and admissible evidence. See <i>Nkie v. FRN (2014) LPELR-22877 )SC).</i> This proposition and principle of law is backed by both statutory and case law authorities. The claims of the Claimant are essentially 3 as contained on her <i>General Form of Complaint </i>and statement of facts. Majorly, they are for arrears of salaries and benefits as well as general damages. To be entitled to a grant by the Claimant, the Claimant must adduce credible evidence in support of her claims. In paragraph 4 of her statement on oath, the Claimant made averment as relates to the fact of her employment by the Defendant, her annual salary and allowances. In paragraph 5 of the same process, the Claimant averred that during the period of January to December 2012 and June to December 2013 the Defendant failed to pay her salary and benefits. Now, these are nothing short of mere averments which must be supported by credible evidence. What then are the evidence adduced by the Claimant in proof of her claims? The Claimant tendered 5 exhibits in proof of her case as follows - <i>Exh. C1 </i>is a sworn affidavit for change of name of the Claimant; <i>Exh. C2 </i>is the Claimant's identity card while working with the Defendant; <i>Exh. C3 </i>is the offer of employment letter issued to the Claimant by the Defendant; <i>Exh. C4 </i>is the Claimant's letter of resignation while <i>Exh. C5 </i>is the letter for appeal for legal assistance by the Claimant to the Office of Public Defender. In reaction to the statement of facts and Claimant's witness statement on oath, the Defendant in the evidence on oath of its witness stated that Claimant's employment was on probation; that all claimant's entitlements during the said period of probation were duly paid and that the Defendant does not owe the Claimant any salary or allowance. See paragraphs 7 & 8 of the <i>DW1. </i>Under cross examination, <i>DW1 </i>stated that he did not know if the Claimant was paid her salary and allowances during the period in question.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">I evaluated the evidence tendered by the Claimant along the line of her case. Aside from mere averments as contained in her pleadings, I find none of the exhibits tendered and admitted in this case as cogent enough to positively support the case of the Claimant. What I have before are averments on either side. It is thus the word of the Claimant against that of the Defendant. For instance I do not have before me evidence of payment of salary by the Defendant to the Claimant up to a point if at all. Defendant stated that it was not owing the Claimant any arrears of salaries and benefits. If the salaries of the Claimant were being paid to the Bank, Claimant ought ordinarily to exhibit her Bank statement of accounts to evidence regularity of payment of salary into that account. Such evidence would then have shown when the Defendant stopped paying same. If on the other hand, the salaries and benefits were being paid in any other form, evidence of such payment was not presented before me. It is then and only then that the Defendant will have the burden shifted on him to rebut. The burden of proof is always on the person who will lose if no evidence is adduced<b>. </b>It is not the duty of the Defendant to lead evidence in proof of the fact that it does not owe the Claimant any arrears of salaries and benefits. The work of the Bench is adjudication. That of the Bar is advocacy. The Bar should do its work and do it properly to enable the Bench do it's properly as well.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">There is no cogent and credible evidence adduced by the Claimant to merit a grant of the reliefs sought. All the claims are thus refused and dismissed for the reasons as contained in this Judgment.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">I make no order as to cost.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.0pt;line-height: 115%;font-family:"Times New Roman","serif"">___________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Hon. Justice J.D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.0pt;font-family: "Times New Roman","serif""> <span lang="EN-GB">Presiding Judge</span></span><span lang="EN-GB" style="font-size:72.0pt; font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></p>