Download PDF
JUDGMENT 1. Introduction & Claims On 21/11/14, the Claimant approached this Court by his General Form of Complaint, statement of facts and other frontloaded processes and sought the following reliefs against the Defendant - 1. A declaration that the Respondent’s failure, neglect and or refusal to pay the Claimant’s respective entitlements to: i. Annual Leave Allowance (for the Year 2012/2013 ii. 13th Month Allowance (for Year 2012/2013); and, iii. End of Contract Bonus is a breach of the Contact of Employment dated August 12, 2011 between the Respondent and the Claimant. 2. A declaration that the claimant is entitled to: i. Annual Leave Allowance (for the Year 2012/2013; ii. 13th Month Allowance (for Year 2012/2013); and, iii. End of Contract Bonus 3. An Order of this Honourable Court directing the Respondent to pay the claimant the total sum of =N=5,311,083.96 (Five Million, Three Hundred and Eleven Thousand, Eighty-Three Naira and Ninety-Six Kobo) being the claimant’s entitlement under the employment contract dated August 12, 2011 consisting of the following - i. =N=1,634,179.68 (One Million, Six Hundred and Thirty-Four Thousand, One Hundred and Seventy-Nine Naira, Sixty-Eight Kobo) being the Claimant’s End of Contract Bonus. ii. =N=2,451,269.52(Two Million, Four Hundred and Fifty-One Thousand, Two Hundred and Sixty-Nine Naira, Fifty-Two Kobo) being the Claimant’s Annual Leave allowance for 2012/2013. iii. =N=1,225,634.76 (One Million, Two Hundred and Twenty-Five Thousand, Six Hundred and Thirty-Four Naira and Seventy-Six Kobo) being the Claimant’s 13th Month Allowance for year 2012/2013 4. An order of this Honourable Court directing the Respondent to pay interest at the rate of 21% per annum on the sum of =N=5,311,083.96 (Five Million, Three Hundred and Eleven Thousand, Eighty-Three Naira and Ninety-Six Kobo) from September 30, 2013 to the delivery of Judgment and until the liquidation of the Claimant’s entitlement; 5. An Order of this Honourable Court directing the Respondent to pay to the Claimant the sum of =N=10,000,000.00 Ten Million Naira) as general damages for the breach of contract dated the 12th day of August, 2011; and 6. An Order of this Honourable Court directing the Respondent to pay to the Claimant the sum of =N=500,000.00 (Five Hundred Thousand Naira) being cost incurred by the Claimant for the prosecution of this suit. The Defendant entered an appearance on 12/4/16 but failed to file any defence process. 2. Case of the Claimant Claimant opened his case on18/1/16, adopted his witness deposition of 21/11/14 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C5 respectively. The case of the Claimant as revealed from his evidence in chief is that he was employed by the Defendant a company which specializes in the provision of onshore and offshore services in energy, oil and gas industry; that Defendant provides professional manpower services particularly to Chevron Nigeria Limited in respect of EGP 3B Project in Nigeria; that he was employed as a Scheduler/Planner at the Chevron EPG 3B Project under the terms and conditions as contained in the contract document; that the duration of his employment under the contract was for one year renewable at the instance of the Defendant; that aside from his remuneration of =N=4,250.00 per hour, it is part of the contract that he was entitled to Start of Contract Allowance, Medical Registration with HMO, End of Contract Bonus, 13th Month Allowance, PPE Allowance, Annual Leave Allowance and 120% of the standard rate as overtime rate if he had to work more than or outside the standard working hours and that the Defendant has refused and/or neglected to pay him the various sums due to him. Under cross examination, CW1 testified that Exh. C1 regulated his relationship with the Defendant; that his entire claim is premised on Exh. C1; that his standard work hours is 8 hours in the office and 12 hours offshore; that there is no rate per hour stated in Exh. C1; that 13th month salary is usually paid in December because contract has expired; that he has no evidence to that effect though; that he applied for annual leave; that the Defendant cannot approve his annual leave not being his employer; that Chevron approved his annual leave; that he never resumed work in the office of Defendant; that he had Chevron’s Identity Card; that it is Chevron that would normally discipline him; that he did not earn any rotational allowances; that he does not have knowledge of discussion between the manpower company and the direct company he worked with; that Chevron took a decision to move him offshore; that his employer informed him that Chevron advised that he be moved offshore; that his rate changed by that decision to move him offshore and that the Defendant was his employer. I had indicated earlier that the Defendant did not file any defence process to this suit. At the close of trial, it still did not file and neither did it call any evidence. The Court thus directed the parties to file their final written addresses in accordance with the Rules of this Court. 3. Final Written Addresses of Counsel The Defendant filed its final written address first not having called any evidence. It was dated and filed 23/1/18. In it, learned Counsel set down a lone issue for determination as follows - Whether the Claimant has discharged the burden of establishing his case against the Defendant to entitle him to the various reliefs sought in this suit. In arguing this issue, learned Counsel first submitted that the Court should discountenance Exh. C2 - a computer generated evidence for non compliance with the provisions of Evidence Act; that it was admitted without proper foundation being laid and absence of certification. Counsel submitted that the frontloaded document attached to the email pleaded in paragraph 9 of the Claimant's statement of claim is quite different from that which was tendered and admitted in evidence; that while the frontloaded document attached to the email was not signed, the document attached to the email tendered and admitted as Exh. C2 was signed. Learned Counsel prayed the Court to completely discountenance same in the interest of justice. Arguing further, learned Counsel submitted that the case of the Claimant, according to the Claimant, rests solely on Exh.C1; that aside from the averments in the pleadings of the Claimant there is no evidence before the Court in proof of the reliefs sought; that the Court is not bound to accept the facts deposed to in an affidavit as representing the true position of the matter simply because the other party did not file a counter affidavit and that the oral evidence must be accurate in the sense that it brings out that facts as averred in the statement of claim citing National Bank of Nigeria v. Are Brothers (1977)6 S.C 97 at 100 & Bonoface Anyika & Company Lagos Nigeria Limited v. Uzor (2006)LPELR-790 (SC) 12. Counsel submitted further that the Claimant failed to provide proof of how he arrived at the sum of =N=5,311,083.96 and the different heads of the claims. Citing B.B.Kanyip, PJ in Oyetayo v. Zenith Bank Plc (2012)29 NLLR (Pt. 84) 370 at 422, learned Counsel submitted that salaries, allowances and other emoluments are special damages which must be specifically pleaded and proved if they are to be claimed and that in the absence of proof the Claimant is not entitled to the sums he sought. Respecting the claim for declaratory reliefs sought, learned Counsel submitted citing Ibirogba v. Federal Polytechnic, Yaba (2015)63 NLLR (Pt. 223) 343 at 387 & Wondo & Ors. v. Bello & Ors. (2016) LPELR-40824 (CA) that when a Court is called upon to make a declaration of a right, it is incumbent on the party claiming to satisfy the Court by evidence, not by admission in pleadings that he is entitled to the declaration. Learned Counsel prayed the Court to dismiss the case of the Claimant in its entirety for lack of proof. The Claimant did not file any final written address. 4. Decision The reliefs sought by the Claimant in this case are for declaration of certain rights in his favor; entitlement to certain sums of money under a contract of employment; damages for breach of contract of employment and for cost of the proceedings. I have read and clearly understood all the processes filed by either party to this case. Only the Claimant's originating processes including frontloaded documents were filed. I read them and understood. Claimant did not file final written address. The Defendant did not file any defence process. It however filed a final written address which I also read with understanding. Only the Claimant testified at the trial. I patiently heard his oral testimony and evidence under cross examination as well as watched his demeanor. Finally, I heard the oral argument on behalf of the Defendant at the stage of adopting the final written address. Having done all this, and for the just determination of this case, I adopt a lone issue thus - Whether the Claimant has adduced sufficient evidence in proof of all or some of the reliefs. In all civil matters and proceedings, it is always for whoever is seeking judicial reliefs to adduce cogent, credible and admissible evidence in proof of same in order to be entitled to positive judicial disposition. In other words, he who asserts must prove the assertion. It is a principle which has both statutory and plethora of judicial authorities that references can easily be dispensed with. The requisite proof may be by oral or documentary evidence or even by both. However, documentary evidence is accorded more weight and acceptance by the Court compared to oral evidence. Before proceeding to address the lone issue set down for the just determination of this case, it is imperative that I bring to the fore one or two equally germane issues. The first is the fact of absence of any defence process filed by the Defendant. It must be borne in mind that absence of defence does not on its own dictate an automatic judgment for the Claimant. For, a Claimant can and will only succeed on the strength of his case rather than on the weakness of the case of his adversary. See Gonimi v. Buba (2018) LPELR (CA). Curiously enough respecting declaratory reliefs, the fact of an admission will not shield the Claimant from adducing evidence in support of his claims. See the Court of Appeal in Nwekeorie & Anor. v. Anyanwu & Anor. (2017) LPELR (CA) following the decisions in Bello v. Eweka (1981) NSCC Vol. 12 at 48 & Ogolo v. Ogolo (2006)5 NWLR (Pt. 972 173. Thus, notwithstanding the fact that the Defendant in this case did not file any defence process and did not call any evidence, it does not translate to automatic judgment in favor of the Claimant. The Claimant must still adduce sufficiently cogent and credible evidence to discharge the onus placed on him. The second equally important issue is whether or not to discountenance or the probative weight to be attached to Exh. C2. That exhibit is a 2-page document. Page 1 is an email dated 24/8/12 sent at 12.05 pm. Page 1 of that exhibit is the same as page 1 of the same document frontloaded along with the originating processes. Now page 2 of Exh. C2 is a document headed Contract-Ammendment (sic). It was to be effective on 1/9/12. That exhibit differs in material particulars from the frontloaded document. Firstly, while Exh. C2 was to become effective on 1/9/12, the frontloaded document carrying the same heading was to be effective on 1/10/12. Secondly, while Clause 3 of Exh. C2 contains 24 words the same clause in the frontloaded document contains 26 words. Thirdly and not the least of importance, while Exh. C2 was signed for Mathew Adigolo for the B & V ENERGY/ODSL as employer, the Claimant also signed as employee. The frontloaded document was not executed by either of the parties. I have reasons to believe that Exh. C2 is not reliable. There are reasons for me to believe that page 2 of Exh. C2 was executed during the pendency of this suit. The wisdom behind the prevailing frontloading regime of adjudication is to ensure that parties to an action are aware of and conversant with the case to meet in Court. It is to prevent trial by ambush. It is to prevent any form of sharp practices in adjudication. In the circumstances of this case, I having found Exh. C2 unreliable, I place no value on it and hence expunge same from this proceedings. Now, has the Claimant adduced sufficient evidence in proof of his case to be entitled to the reliefs sought? Claimant sought 6 main reliefs. The first two are for declaratory reliefs. The law is trite as the Supreme Court enunciated in Addah v. Ubandaki (2015)7 NWLR (Pt. 1458) that "...the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence." Declaratory reliefs are discretionary remedies which are not granted as a matter of course. They are grantable only on the strength of the case of the applicant who is obliged to adduce cogent and credible evidence in support of same. The Court of Appeal in MTN Nigeria v. Anene (2018) LPELR (CA) following the Judgment of the Supreme Court in CBN v. Amao (2010)16 NWLR (Pt. 1219) 271 at 299-300 stated that the principles governing the grant of declaratory reliefs are as follows - (a). a declaration will be granted even when the relief has been rendered unnecessary by lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law; (b). the claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to the relief in the fullest sense of the word; (c). a declaration will only be granted where there is a breach; (d). the plaintiff must establish a right in relation to which the declaration can be made, hence the Court will not generally decide hypothetical questions; (e) the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant; (f). the relief should not be contrary to the acceptable principles upon which the Court exercises jurisdiction. While testifying under cross examination, the Claimant stated that Exh. C1 formed the basis of his claim in this case. That exhibit is the Offer Of Employment. While page 1 is the covering letter, pages 2-5 contain the contract between the Claimant and the Defendant. It was entered into on 1/9/11. Under clause 7, the document states that in addition to the remuneration in Clause 5, the employee shall be entitled to - End of Contract Bonus - (Standard work hours that applies to location, 28 days - offshore; 22 days - office). Payable at the expiration of the CNL PTS contract. The value above is valid for 2 years. For 3 years, the value becomes 1.5(value described for 2 years above). 13th month allowance - Standard work hours in a month (Payment will be protected For Dec, 2011 based on months worked) (28 days-offshore; 22 days- office) Annual Leave Allowance (12.5% of Annual Gross Salary applies to location). (28days-offshore; 22 days - office). There is no evidence before me to the effect that the Claimant was not entitled to the declaratory reliefs sought. Consequently, I declare that the Defendant's failure, neglect and or refusal to pay the Claimant’s respective entitlements to Annual Leave Allowance (for the Year 2012/2013): 13th Month Allowance (for Year 2012/2013): and End of Contract Bonus is a breach of the Contact of Employment dated August 12, 2011 between the Respondent and the Claimant. I also declare that the Claimant is entitled to Annual Leave Allowance (for the Year 2012/2013): 13th Month Allowance (for Year 2012/2013); and End of Contract Bonus. Claimant also sought an Order of this Honourable Court directing the Respondent to pay him the total sum of =N=5,311,083.96 (Five Million, Three Hundred and Eleven Thousand, Eighty-Three Naira and Ninety-Six Kobo) being his entitlement under the employment contract dated August 12, 2011. This head of claim is said to consist the following - 1. =N=1,634,179.68 (One Million, Six Hundred and Thirty-Four Thousand, One Hundred and Seventy-Nine Naira, Sixty-Eight Kobo) being his End of Contract Bonus; 2. =N=2,451,269.52(Two Million, Four Hundred and Fifty-One Thousand, Two Hundred and Sixty-Nine Naira, Fifty-Two Kobo) being his Annual Leave allowance for 2012/2013 and 3. =N=1,225,634.76 (One Million, Two Hundred and Twenty-Five Thousand, Six Hundred and Thirty-Four Naira and Seventy-Six Kobo) being his 13th Month Allowance for year 2012/2013.There is no iota of evidence from the Defendant to show that these claims of the Claimant had been met either wholly or partly. Claimant placed reliance on Exh. C1 as the basis of his claims under this head of relief. This claim is for sum certain by the Claimant. The relief amounts to a claim for special damages. It is trite law supported by plethora of judicial authorities that special damages requires strict proof. See Gurara Securities and Finance Limited v. T.I.C. Limited (1998) LPELR-6420 (CA) following NITEL Ltd & Ors v. Ogunbiyi (1992) 7 NWLR (pt.255) at 543 per Onalaja J.C.A. Aside from Exh. C1 which contained the agreement between the parties together with the applicable terms and conditions of employment, there is no other document tendered by the Claimant in support of his entitlement to these sums of money. It is not clear to me how the Claimant arrived to the different sums of money for the different sub heads of claim. It is for the Claimant to adduce convincing and satisfactory evidence in support of this head. He failed to do so. I find and hold that entitlement to the sums claimed is not proved. I accordingly refuse and dismiss same. The last 3 reliefs are for interest at the rate of 21% per annum on the Judgment sum; =N=10,000,000.00 as general damages for breach of contract and an order for the payment of =N=500,000.00 as cost of this action. These reliefs are dependent on the success of the main suit which is for the payment of the sum of =N=5,311,083.96. This is the crux of Relief 3 as sought by the Claimant. This Court has found that head of claim not proved. It has refused and dismissed same. Having done so, these last 3 reliefs have no foundation. They are equally refused and dismissed. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment. 1. I declare that the Defendant's failure, neglect and or refusal to pay the Claimant’s respective entitlements to Annual Leave Allowance (for the Year 2012/2013; 13th Month Allowance (for Year 2012/2013); and End of Contract Bonus is a breach of the Contact of Employment dated August 12, 2011 between the parties. 2. I declare that the Claimant is entitled to Annual Leave Allowance (for the Year 2012/2013): 13th Month Allowance (for Year 2012/2013); and End of Contract Bonus. 3. All the other reliefs sought by the Claimant are refused and dismissed for lack of proof by cogent, credible and admissible evidence. 4. I make no order as to cost Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge