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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge DATE: March 13, 2012 SUIT NO. NIC/26/2008 BETWEEN 1. Mr. Mohammed .A. Adamu 2. Mr. Celestine Okolie 3. Mr. Kolawole Johnson - Claimants 4. Mr. Sadiku Sumaila AND 1. Shifa Plastic Industry Co. (Nig.) Ltd Km 48, Lagos/Ibadan Express Way. 2. Mr. Michael O. Adesua - Defendants 3. Mr. Thomas Guo Yongyue REPRESENTATION Emmanuel Essien, with him Mrs. Blessing Ikeh, Mrs. E. C. Akinwande, Moses Kassim, for the claimants. O. M. Aborisade, with him Mrs. O. O. Fakolujo, for the defendants. JUDGMENT The claimants filed a complaint against the defendants on 8th April 2008. Accompanying the complaint is the statement of claim, list of witnesses to be called and list of documents. The claimants thereafter sought the leave of court and filed an amended statement of claim on 14th November 2008, wherein they claimed against the defendants as follows: 1. A declaration that the purported dismissal of the claimants from the services of the 1st defendant was wrongful and of no effect whatsoever. 2. Special damages in the sum of N6,365,350.00 (Six million, three hundred and sixty five thousand, three hundred and fifty Naira Only) broken down as follows: (a) Unpaid salary for months of February to July, 2008 in respect of the 1st claimant at the rate of N35,000.00 per month = N210,000.00. (b) Unpaid annual leave allowance N17,500.00. (c) Total emoluments N227,500.00. (d) N180,000.00 stolen by agents of defendant during attack on 1st claimant. (e) The sum of N2,000,000.00 for acts of defamation on the person and personality of the 1st claimant through issuing a libelous dismissal letter to Sadiku Sumaila in his name so as to castigate the 1st claimant in the eye of right-thinking men in the society. (f) The sum of N2,000,000.00 for breach of contract by the defendants and being damages for the risk the 1st claimant got himself exposed to during the pursuit of the company’s N485,000.00 stolen by unknown persons at Intercontinental Bank Plc, which the 1st claimant successful recovered and paid back to the 1st defendant. (g) The sum of N1,000,000.00 being damages for the beating and injury suffered by the 1st claimant during the attack on him at Mowe Bus Stop on the 19th January 2008 as instigated by the defendant via a dismissal letter issued to Sadiku Sumaila in the 1st claimant’s name. (h) Unpaid salary for the months of December, 2007 to July, 2008 in respect of the 2nd claimant at the rate of N35,000.00 per month = N280,000.00. (i) Unpaid annual leave allowance = N10,050.00. (j) Unpaid emoluments N280,000.00. (k) N260,000.00 hospital bill paid by the 2nd claimant to treat official injuries. (l) Unpaid salary for the months of January to July, 2008 in respect of the 3rd claimant at the rate of N9,000.00 per month = N63,000.00. (m) Unpaid annual leave allowance of N7,200.00. (n) Total emoluments N70,200.00. (o) Unpaid salary for the months of February to July, 2008 in respect of the 4th claimant = N54,000.00. (p) Unpaid annual leave allowance N3,600.00. (q) Total emoluments of N57,600.00. 3. General damages for breach of contract of employment jointly and severally – N500,000.00 (Five hundred thousand Naira Only). 4. Perpetual Injunction restraining the defendants herein or through its agents and privies from further infringing on the rights to human dignity, freedom from torture, right to living wages and so on, including other rights covered by Chapter IV of the 1999 Constitution and other socio-economic rights provided for by the same Constitution. 5. Cost of this suit is put at N500,000.00 (Five Hundred Thousand Naira Only). 6. 21% interest per annum from date of inception till the determination of this suit and 7% interest until judgment debt is settled. The defendants filed their statement of defence and counterclaim together with the list of documents to be relied on and the list of witnesses to be called on the 11th June 2008. They counterclaimed as follows: The defendants hereby jointly and severally counterclaim against the 1st – 4th claimants jointly and severally the sum of N5,000,000.00 for damages caused to the defendants by the actions of the claimants. The claimants filed a reply to the statement of defence and a defence to the counterclaim dated 13th June 2008 but filed on the 8th August 2008. The parties joined issues and the matter went to trial. The case of the claimants on the pleadings is that they were employed by the 1st defendant. The 1st claimant was employed on 25th June 2007 as a Personnel Manager and his employment wrongly terminated on 17th January 2008. The 2nd claimant was employed on 9th August 2007 as a Marketing Manager and was wrongly dismissed on 10th December 2007. The 3rd claimant was employed on 13th September 2007 and was wrongly terminated verbally on 6th January 2008. The 4th claimant was employed on the 13th day of September 2007 as a driver and wrongly dismissed on 18th January 2008. The 1st claimant pleaded that he was invited by the 2nd defendant to the office of the 3rd defendant and forced by the 3rd defendant at gun point to put in his letter of resignation on the 17th January 2008 which he did and it was immediately accepted. He pleaded that he was physically assaulted by two of the 1st defendant’s Chinese expatriate staff when he took a principled stand against the treatment of Nigerian workers. He pleaded that the 2nd defendant incited some of the staff against him who physically assaulted him, stole N180,000.00 from him during the assault, and he had to be hospitalised for injuries he sustained. The 2nd claimant pleaded that he had an industrial accident in the course of his employment due to unsafe working conditions of the 1st defendant. He pleaded that he sustained serious injuries, was hospitalised and spent N260,000.00 to treat himself as the 1st defendant refused to treat him. That due to his hospitalisation he was unable to report to duty and the defendants dismissed him. The 3rd claimant pleaded that he was verbally dismissed and chased out of the company premises with a gun. The 1st claimant pleaded that the oral contract made between him and the 3rd defendant on behalf of the 1st defendant for the recovery of the sum of N485,000.00 belonging to the 1st defendant is valid. The claimants called only the 1st claimant to give oral evidence in support of their claims. He said he was employed as Personnel Manager by a letter dated 25th June 2007. He said that on assumption of duties, he found from the records that over 80% of the staff were mere casual employees and he took it upon himself to put in place personnel record for all the staff. He said that he prepared appointment letters for staff who were appointed before he joined the company and had to back date them in order to capture the dates they were employed. He stated that in August 2007, there was an incident of missing money from the 1st defendant’s bank account operated with the Redemption Camp Branch of Intercontinental Bank Plc. He said the 3rd defendant informed him that somebody stole a cheque leaf from the 1st defendant’s cheque book and used it to cash N485,000.00 from the bank account. He said the 3rd defendant asked him to take steps to recover the said amount and was promised 20% of whatever he was able to recover for the company. He said the promise was oral as the 3rd defendant refused to put it into writing when he asked him to. He said he wrote the bank twice threatening legal action and the sum of N485,000.00 was refunded and paid into the 1st defendants account. He said he then asked for the 20% he was promised but he was not given the sum till date. The witness was cross-examined. He said that the letter he wrote to the bank was on the 1st defendant’s letter-headed paper and as its Personnel Manager. He admitted that he resigned his employment but that it was not in accordance with the terms of his contract of employment which states that he is to give one month’s notice or pay one month’s salary in lieu of notice. He said he was given a letter of acceptance of his resignation on the same day. The witness said he wrote the report attached as Exhibit 1 to the statement of defence and that the report indicts the 3rd and 4th claimants. He admitted that he wrote a reply to the query issued to him which is attached to the statement of defence as Exhibit D. He said in the course of his employment as Personnel Manager, he had cause to issue a warning letter to the 4th claimant. The witness was not re-examined and the claimants closed their case. The case of the defendants on the pleadings is that they did not disengage the 1st to 4th defendants wrongly. They pleaded that the 1st claimant voluntarily resigned his employment as Personnel Manager which was accepted by the 1st defendant and a dinner party was organized for him. They pleaded that before his resignation, the 1st claimant was issued a query due to dereliction of duty which he replied explaining that his absence from duty was due to the deteriorating health of his father. They pleaded that the reason he gave for his resignation was to enable him attend urgent family issues relating to his father’s state of health. They pleaded that no money was stolen from the 1st claimant as it is the accountant who keeps the company’s money. That the 1st claimant was assigned roles and duties to be performed and that his letter of appointment does not include payment of commission on performance of his duties as he is paid a salary. They pleaded that there is no oral agreement or written agreement to that effect. They pleaded that the 2nd, 3rd and 4th claimants were not arbitrarily dismissed from the employment of the defendants, that they were involved in activities that breached the peace and insubordination. The defendants’ counsel informed the court that they will not be calling any witness but will rest their case on that of the claimants. Parties were then ordered to file final written addresses. The final written address of the claimants is dated 9th November 2011 but filed on 10th November 2011 and its reply on point of law is dated 13th December 2011 and filed same day. The defendants’ final written address is dated 6th December 2011 but filed on 7th December 2011. Both parties adopted their final written addresses. The claimants raised 5 issues for determination as follows: 1. Whether the resignation of the 1st claimant as the Personnel Manager of the 1st defendant is in line with his employment contract as contained in his appointment letter dated 25th June 2007 and if the court can look at the resignation letter viz-a-viz his employment contract and form its opinion as to its legal effect. 2. Whether the dismissal of the 2nd claimant is valid going by his contract of employment. 3. Whether the verbal termination of the 3rd claimant is valid in the circumstance of this case, and the legal effect of such. 4. Whether the dismissal letter issued the 4th claimant dated 18th January 2008 in the name of the 1st claimant as the author, who resigned on the 17th January purported to have been issued by him is valid and of any legal effect. 5. Whether going by the evidence and circumstances of this case, the claimants are entitled to any relief or damages sought. The claimants’ counsel submitted that his inability to keep to the terms of his contract of employment by giving one month’s notice or payment of a month’s salary in lieu of notice is due to his forceful resignation and/or constructive dismissal. He cited Stephenson v. London Joint Stock Bank [1902] 19 TLR 138 and C. F Asheik v. Gov. Borno State [1994] 2 NWLR (Pt. 326) 344 and urged the court to hold that his appointment was wrongly terminated by reason of his being forced to put in his letter of resignation. He submitted that the 2nd claimant’s employment was wrongfully terminated and is, therefore, invalid. He submitted that termination can be for a reason or no reason at all while dismissal should carry a reason. He submitted that the defendants did not state any reason for the 2nd claimant’s dismissal. He submitted that where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning, citing Union Bank of Nig. v. Prof A. O. Ozigi [1994] 3 NWLR (Pt. 333) 385. It was the claimants’ counsel submission that a worker who is employed by letter cannot have his appointment terminated verbally, citing NUHPSW v. Pink Peacock Restaurant [1978 – 2006] DJNIC 281 – 282. He, therefore, urged the court to declare the verbal termination of the 3rd claimant’s employment wrongful. He submitted that the letter of dismissal issued to the 4th claimant purportedly signed by the 1st claimant is invalid and wrongful because on the date the letter was written, the 1st claimant was no longer in the employment of the 1st defendant. He urged the court to expunge the letter and referred to Olujogun Lawal v. Beton Bau (unreported) Suit No. NIC/44/2008, the ruling of which was delivered on 30th November 2011. He submitted that the failure of the defendants to file an amended statement of defence in reply to the claimant’s amended statement of facts means that the defendants have admitted the claimants’ averments, citing Omoregbe v. Lawani [1980] 3 – 4 SC 108 and Arowosaye v. Ogedengbe [2009] 10 WRN 120. He submitted that the court can award general damages and that the quantum need not be pleaded, referring to Alhaji Ahmadu Gari v. Seirafina Nig. Ltd & anor [2008] 2 NWLR (Pt. 1070) 219. It was his submission also that Exhibit MA8, being a medical receipt for treatment of the 2nd claimant in respect of his “official injury”, should be paid by the 1st defendant. On the counterclaim, the claimants’ counsel submitted that it is a separate and independent action which has to be instituted in accordance with the rules of this court. He submitted that the defendants failed to pay separately for the counterclaim and instead only paid for the statement of defence and, therefore, the counterclaim is incompetent for failure to pay filing fees. He cited O.O.M.F Ltd v. N.A. & C.B Ltd [2008] 7 MJSC 169. He submitted that the counterclaim has not specified which damages are in issue, that it does not represent monies owed by the claimants to the defendants and that the court is not empowered to award unspecified damages to a party. He submitted that the court lacks jurisdiction to entertain the counterclaim. He submitted that the entire actions of the defendants constitute unfair labour practices and negates the doctrines of international best practices which in turn offends section 254C(i) and (f) of the 1999 Constitution as amended. The defendants raised 5 issues for determination as follows: 1. Whether the 1st claimant could be said to be unlawfully dismissed from the service of the 1st defendant in view of his voluntary resignation of appointment letter dated the 17th day of January 2008. 2. Whether the 1st claimant is entitled to the general and special damages claimed against the defendants after his resignation of employment with the 1st defendant without giving the requisite notice to the 1st defendant. 3. Whether the 1st claimant successfully established before the court the purported oral agreement of the payment of 20% commission on the recovered sum of N485,000.00 on behalf of the 1st defendant. 4. Whether the 2nd – 4th claimants would not be said to have abandoned their claim in view of their absence and not proving same in the court of law. 5. Whether it can be said that the 1st claimant have successfully established and proved against the defendants issues of gun-running, defamation of character and assault against the defendants jointly and severally. The defendants’ counsel submitted that the 1st claimant was not unlawfully dismissed from the service of the 1st defendant in view of the fact that he voluntarily resigned his appointment as evidenced by his resignation letter. He submitted that the 1st claimant did not comply with the contract of employment when he failed to give the 1st defendant one month’s notice or pay one month’s salary in lieu of notice. He submitted that the 1st claimant is not entitled to an award of damages but he should pay damages to the 1st defendant for non-compliance with the notice period. He submitted that there is no law that prevents giving an immediate response to a resignation letter that stipulates that resignation is to take effect immediately. It was the submission of the defendants’ counsel that the 1st claimant did not lead evidence in support of his claims. He submitted that it is not sufficient to make an allegation in a pleading; credible evidence must be led in proof of it, citing Nigerian Dredging & Marine Ltd & anor v. Lucky Gold [2007] All FWLR (Pt. 335) at 507. The defendants’ counsel submitted that the 2nd to 4th claimants who failed to come to court to give evidence in support of their claims have each abandoned their case. He submitted that pleadings by itself is not evidence, a party must lead oral or documentary evidence in support of the facts pleaded, citing Talatu Nancy Malle v. Alajiya Salma Abubakar [2007] All FWLR (Pt. 360) 1571, Atoyebi v. Odudu [1990] 6 NWLR (Pt. 157) 384 and Chief Sunday Ogunyale v. Solomon Oluyemi Oshunkeye & anor [2007] All FWLR 389. He submitted that he who asserts must proof, referring to sections 131(1) and 132 of the Evidence Act 2011. It was also the defence counsel’s submission that there was no necessity on the part of the defendants to file an amended statement of defence in reply to the claimants’ amended statement of claim as no new issues were raised. He also submitted that the decision of the defendants not to give evidence but to rest on the case of the claimants’ does not affect the case of the defendants because of the Supreme Court’s decision in Chief Sunday Ogunyale v. Oshunkeye (supra) where it held that “failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of a plaintiff who fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out notwithstanding the fact that the defendant did not give evidence”. He urged the court to dismiss the claimants’ case. Replying on points of law, the claimants’ counsel submitted that the cases cited by the defendants’ counsel in their final address are misplaced in respect of the practice and procedure of this court. He submitted that a party does not need to call oral evidence if he can establish his case by documentary evidence. He cited Robert Adema v. Nigeria Security Printing & Minting Co. (unreported) Suit No. NIC/73/2008 the judgment of which was delivered on July 29, 2011 and Ogundele v. Agiri [2009] 12 MJSC (Pt. 1) 159. He submitted that the defendants’ counsel’s submission that filing of pleadings by the 2nd to 4th claimants without evidence on oath does not entitle them to judgment is a clear departure from the Rules of this court as there is no provision for witness statement on oaths. We have carefully considered the processes filed, the evidence led and the written submissions and authorities cited. It is pertinent at this juncture to comment on claims 2(d), (e) and (g) and 4 in the amended statement of claim above and paragraphs 25, 26, 32 and 33, which are reproduced as follows: 25. That this incitement by the 2nd defendant led to the physical assault of the 1st claimant by some members of staff of the 1st defendant who claimed they acted upon information given them by the 2nd defendant. The 1st claimant pleads and shall rely upon a copy of the police report lodged at Mowe Division of the Nigerian Police Force dated 19th January 2008. 26. That during the said assault, the sum of N180,000.00 (One hundred and Eighty Thousand Naira Only) was stolen from the 1st claimant who also sustained injuries and had to be hospitalised for days. 32. That the defendant’s dismissal letter to the 4th claimant using the 1st claimant’s name as the maker of such document constitutes defamation of the person of the 1st claimant. 33. That the oral contract made between the 1st claimant and the 3rd defendant on behalf of the 1st defendant for recovering the sum of N485,000.00 of the 1st defendant by the 1st claimant is valid. The claimants urge the Honourable court to compel the defendants to perform their part of the contract. It is trite law that it is the statement of claim that determines jurisdiction. Claim 2(d) is an allegation of theft; 2(e) is for defamation; and 2(g) is a claim for assault and battery. Reliefs 2(d), (e) and (g) are clearly outside the purview of the jurisdiction of this court and are hereby struck out for want of jurisdiction together with paragraphs 25, 26, 32 and 33 of the amended statement of claim which are the pleadings in support of these claims. The only issue for determination is whether or not the claimants are entitled to the reliefs sought. We begin with the first claimant who has alleged that his employment was wrongly terminated, not being in accordance with his contract of employment. His appointment as Personnel Manager was with effect from 25th June 2007 and the appointment letter states that the 1st claimant is on probation for “a minimum of six months or for such longer period as may be deemed necessary”. The letter also states that during the period of probation, “unless you are dismissed, you or the company may terminate your appointment by a month’s notice in writing of (sic) by payment of a month’s salary in lieu of notice”. The appointment letter did not make any provision for the period of notice after confirmation of employment; neither did the 1st claimant lead any evidence to show his appointment was confirmed. We are, therefore, of the firm view that the appointment of the 1st claimant was not confirmed and either party is required to give a month’s notice or payment of one month salary in lieu of notice on determination of the contract of employment. The documentary evidence before the court is a letter of immediate resignation of appointment dated 17th January 2008 written by the 1st claimant in which he gave the reason as being due to “some family problems that require my immediate attention”. Now, he had on the 16th November 2007 been queried by the 2nd defendant for being absent from duty for five days without permission and in his reply he explained that it was “due to the health condition of my father…. hence I have to proceed on night journey to the North immediately”. This goes to confirm that indeed the 1st claimant had urgent family issues to attend to which had the effect of distracting him from his duties. Additionally, it also confirms that his resignation was voluntary, not under any compulsion. His resignation was accepted by the 1st defendant on the same day. While giving oral evidence, the 1st claimant admitted that he resigned from the employment of the 1st defendant but that it was not in accordance with the terms of the contract of employment which stipulates that he is to give one month’s notice or pay a month’s salary in lieu of notice. In the final address he submitted that his resignation was forceful and as such he was constructively dismissed by the 1st defendant. He did not lead any evidence to show that he had not broken any of the terms of his employment contract, or that the 1st defendant’s conduct was hostile and that he had been harassed into resigning his appointment in order to substantiate his allegation of constructive dismissal. See Steyer (Nig) Ltd v. Gadzama [1995] 7 NWLR (Pt. 407) 305 and Jegede v. Shell Co. (Nig.) Ltd [1979] NCLR 456. If a party to an action fails to lead evidence in support of the averments in his pleadings, the averments are deemed abandoned. See Ifeta v. SPDC Ltd [2006] Vol. 7 MJSC 123. We hold that the 1st claimant was not constructively dismissed; he voluntarily resigned his appointment without complying with the terms of his employment contract and the 1st defendant in accepting his resignation waived the terms. He is not entitled to salary for the months of February to July 2008 as he was no longer in the employment of the 1st defendant neither is he entitled to unpaid leave allowance which was not proved. On the 1st claimant’s claim for the sum of N2,000,000.00 (two million Naira) for breach of contract and damages for the risk he claimed he took during the pursuit of the company’s stolen N485,000.00, he said in the examination-in-chief that the 3rd defendant asked him to take steps to recover the missing sum of money which belonged to the company and promised him 20% of whatever sum he is able to recover. The two letters he wrote in this regard to Intercontinental Bank were official letters, written on the letter headed paper of the 1st defendant with him signing as Personnel Manager. We find that these letters were written by the 1st claimant in the course of his employment as an employee, on the instruction of the 3rd defendant who, as General Manager, is in a position to instruct him accordingly. There is no corroboration of the oral promise of 20% commission; neither did he lead any evidence on the alleged risk he took. He is not entitled to 20% commission or any damages in this regard as he was only carrying out an official duty assigned to him. In any event, having to ask for N2 million as damages for failure to pay 20% of N485,000 smacks of profiteering on the part of the 1st claimants. The aim of an award of damages is not to make a windfall or profit in this manner. See C & P Haulage v. Middleton [1983] 1 WLR 1461 and Cehave v. Bremer [1976] 1 QB 44. On the issue of the dismissal letter dated 18th January 2008 given to the 4th claimant, which was signed as follows: “ for Mohammed Adamu, Personnel Manager”, he was no longer in the service of the 1st defendant having put in his letter of resignation the previous day. He was, therefore, not the Personnel Manager and his name ought not to have been put on the letter. We find that he did not sign the letter, someone else did. We, however, do not think this error invalidates the letter of dismissal written on the headed paper of the 1st defendant especially that whoever signed the said letter acknowledged that the signature was for the occupant of the position of “Personnel Manager”. The 2nd claimant was appointed as a marketing manager with effect from 9th August 2007 and was on probation for a minimum period of six months. His letter of appointment stated that while on probation, “unless you are dismissed, you or the company may terminate your appointment by a month’s notice in writing of (sic) by payment of a month’s salary in lieu of notice”. He was dismissed four months later on 10th December 2007 thereby making the period of notice inapplicable in his case. His claims for unpaid salary for the months of December 2007 to July 2008 are baseless as he was no longer in the employment of the 1st defendant from 11th December 2007. He is only entitled to his salary from the 1st to 10th December 2007. We hold that his dismissal was not wrongful. The 2nd claimant pleaded that he had an industrial accident in the course of his employment. He did not lead any oral or documentary evidence to show where or how he sustained his alleged injury. There is no medical report in respect of the said injury from the doctor who treated him. He has only exhibited a receipt from Sam-Davies Hospital for the sum of N260,000.00 for medical treatment which we do not find to be credible. The law is that the burden of proof is on the party who asserts (section 131 (1) and (2) of the Evidence Act 2011) and pleading a fact without adducing evidence in proof goes to no issue. The averments will be taken as having been abandoned. See Ibrahim v. Ojomo [2004] Vol. 4 MJSC 143 and Help Ltd v. Silver Anchor Ltd [2006] Vol. 5 MJSC 171. We hold that the 2nd claimant has not proved his claim of injury and is, therefore, not entitled to any sum of money for injury. The 3rd claimant was appointed as a store keeper on 13th September 2007. He did not give oral evidence in support of his case neither is there any documentary evidence before the court supporting his claims for unpaid salary and leave allowance. There is also no evidence before the court that his employment was terminated orally or otherwise by the defendants. We, therefore, hold that he is not entitled to the sums claimed. The 4th claimant’s letter of appointment is not exhibited and so the terms of his employment contract are unknown. He was dismissed on the 18th January 2008 for services no longer required and for taking the law into his hands. His claims for unpaid salary for the months of February to July 2008 and unpaid leave allowance are baseless as he was no longer in the employment of the 1st defendant from the 19th January 2008. He is not entitled to any sum of money. For all the reasons given above, the claims of the 1st, 3rd and 4th claimants are hereby dismissed. The 1st defendant is to pay the 2nd claimant his salary for the period 1st to 10th December 2007. We award costs of N20,000 to be paid by the 1st, 3rd and 4th claimants to the defendants. Judgment is entered accordingly. ----------------------------------------------------- Hon Justice B. B. Kanyip Presiding Judge -------------------------------------------- -------------------------------------------- Hon. Justice F. I. Kola-Olalere Hon. Justice O. A. Obaseki-Osaghae Judge Judge