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JUDGMENT The claimant filed this complaint on 12th March 2010 claiming the following reliefs against the defendant – a. A declaration that the purported termination of the claimant’s employment without notice was wrongful, unlawful, unconstitutional and null and void and of no effect whatsoever. b. A declaration that the defendant’s attempt to terminate the employment of the claimant without notice is invalid and as such the claimant at this present time still remains an employee of the defendant until his employment is validly terminated with a month’s notice or payment of a month’s salary in lieu of notice. c. An order commanding the defendant to reinstate the claimant to its services and pay to the claimant his full salaries, entitlements, allowances and/or benefits from the date of his purported verbal termination up to the date of judgement. d. Alternatively, the claimant claims from the defendant the sum of One Hundred and Sixty-One Thousand, Eight Hundred Dollars (US$161,800.00) being damages for his unlawful termination from the services of the defendant. Accompanying the complaint is the statement of claim, name of witness to be called, copies of documents to be relied upon at the trial. In reaction the defendant filed a notice of preliminary objection on the 20th April 2010 and on 18th May 2010 the firm of Kayode Olatoke & Co. filed a memorandum of conditional appearance which was subsequently withdrawn on 22nd March 2011. Thereafter the firm of J. D. Oloyede’s represented the defendant in the proceedings and filed another notice of preliminary objection challenging the General Form of Complaint and praying that the suit be struck out. In a bench ruling delivered on 24th May 2011, both preliminary objections were struck out. The defendant then filed a motion for stay of proceedings of the suit pending the determination of its appeal on 28th June 2011. The motion for stay of proceedings was struck out on 1st December 2011. The matter was then adjourned twice; first on 1st December 2011 and for the last time on 2nd February 2012 to enable the claimant who is listed as the only witness to give oral evidence because he is out of Nigeria and works offshore. On 6th March 2012, the claimant’s counsel again informed the court that he could not reach the claimant and applied for another adjournment. The court in the circumstance decided to deem the claimant as not calling any oral evidence and ordered the parties to file and serve final written addresses on the basis of the documents already frontloaded pursuant to Order 19 Rule 13(1) and (4) of the Rules of this Court 2007. On 21st March 2012, the defendant’s counsel filed a motion praying the court to review the order and for striking out the suit for want of diligent prosecution. In a bench ruling delivered on 21st June 2012, the motion was struck out and parties were ordered to adopt their written addresses. The claimant’s written address is dated 27th March 2012 and filed the same day. The defendant’s written address is dated 24th April 2012 and filed the same day. The claimant did not file a reply on point of law. The claimant’s case on the pleadings is that he is a British National employed by the defendant by a Project Employment Agreement dated 12th June 2009 as Lead Piping. The statement of claim is reproduced below as follows – 1. The claimant is a British National residing at 28, Stafford Road, Wellington, Surrey, SM69AA, United Kingdom, and is presently an employee of the defendant company. 2. The defendant is a private limited liability company incorporated in Nigeria with its office at 3rd Plot PC IB Bank Crescent, Bank PHB Building, off Adeyemo Alakija Street, Victoria Island, Lagos State, within the jurisdiction of this Honourable Court. 3. The claimant was employed as Lead Piping by the defendant via a Project Employment Agreement dated the 12th of June 2009. The claimant pleads the Employment Agreement dated 12th June 2009 and shall rely on same at the trial of this suit. 4. By virtue of the Project Employment Agreement, the claimant was required to work from fifty-five (55) hours to sixty (60) a week for which he was entitled to be paid Ninety Dollars (US$90) per hour. 5. The claimant was also entitled, by virtue of the Project Employment Agreement to a daily living allowance of fifty dollars (US$50) to be paid locally. 6. Upon the claimant’s resumption with the defendant company, he was continually harassed by Mr. Bryce McCormack, the General Manager of the defendant, who continually taunted the claimant on various occasions, claiming that the claimant’s previous employers had found the claimant’s services during his previous employment unsatisfactory and that the claimant was lying about his educational qualifications. 7. The claimant was at various times during his employment with the defendant subjected to verbal abuse by Mr. Bryce Mc Cormack his work supervisor, and was forced to endure negative comments and unwarranted criticism from Mr. Bryce McCormack such that the claimant was forced to make a formal complaint to Mrs. Nimisore Akano, the General Counsel of the defendant. 8. On the 17th of December 2009, two days before the claimant was due to travel for his Christmas leave, the claimant was notified by a letter signed on behalf of Mrs. Nimisore Akano, the General Counsel of the defendant, that the claimant’s services were no longer needed. The claimant hereby pleads the letter dated 17th December 2009 and shall rely on same at the trial of the suit. The claimant initially refused to accept receipt of the letter as the termination mode of his contract was not being followed in this particular instance, but was thereafter informed that his international passport would not be returned to him by the defendant until he signed receipt of the said termination letter. 9. The defendant therein failed to give the claimant a month’s notice of its intention to terminate the claimant’s employment contract, as required by the Project Employment Agreement entered into between the claimant and the defendant. 10. The defendant has also failed to pay the claimant a month’s salary, in lieu of notice as required by the Project Employment Agreement entered into by the claimant and defendant, and the Nigerian Labour Act. 11. The defendant has since made no attempt to properly terminate the employment of the claimant, by paying the claimant a month’s salary in lieu of notice, as required by the Project Employment Agreement and the Nigerian Labour Act. 12. The defendant has also failed to notify the claimant of any event of gross misconduct of breach of contract which may be grounds for the summary dismissal of the claimant after he might have been given an opportunity to defend himself. 13. The duration of the Project Employment Agreement entered into between the claimant and the defendant is valid for one year and was commenced in July 2009. PARTICULARS OF SPECIAL DAMAGES a. Salaries for the month of January 2010 to July 2010. US$151,200.00 b. Living Allowance from January 2010 to July 2010. US$10,600.00 Total US$161,800.00 14. The claimant at the trial of this action will rely on all correspondence and documents exchanged between the parties hereto relevant to the subject matter of this suit, and hereby give notice to the defendant to produce any such documents in its possession. 15. The claimant will contend at the trial that the defendant has no defence whatsoever to the claimant’s claim. The defendant did not file a statement of defence. Learned counsel to the claimant raised two issues for determination as follows: a. Whether the failure of the defendant to file a statement of defence would amount to an admission of the facts contained in the statement of claim. b. Whether the claimant’s employment with the defendant was validly terminated by the defendant without due notice being given to the claimant as required by the claimant’s employment contract with the defendant. He submitted that the failure of the defendant to deny the averments in the statement of claim amounts to an admission of all such averments, citing Alhaji Abubakar Daniya Waziri v. Alhaji A. B. Abubakar [2005] 11 NWLR (Pt. 908) 450 at 459 and Alhaji Tukur Mohammed v. Alhaji Abubakar Abdulkadir [2008] 4 NWLR (Pt. 1076) 111 at 156. He urged the court to enter judgement against the defendant who had ample opportunity to deny the claims but failed to. He submitted that from the documentary evidence before the court particularly the letter determining his employment, the defendant failed to adhere to the terms of the Project Employment Agreement by not giving him the requisite one month’s notice of their intention to terminate this employment and failure to pay him his one month salary in lieu of notice. It was his submission that the claimant’s employment has not been validly terminated due to the failure of the defendant to comply with the mode of termination provided in the Agreement. He referred to Jubril Ladipo v. Chevron (Nig) Ltd [2005] 1 NWLR (Pt. 907) 227 at 289, Geidam v. NEPA [2001] 2 NWLR (Pt. 696) 45 at 55, Peugeot Automobile Nig. Ltd v. Salihu Oje [1997] 11 NWLR (Pt. 530) 625 at 632 and University of Benin v. Andrew Erinmwionren [2001] 17 NWLR (Pt. 743) 548 at 563. Learned counsel submitted that the claimant is indeed entitled to be paid consequential damages by the defendant as a result of wrongful termination, citing NITEL Plc v. I. A. Ocholi [2001] 10 NWLR (Pt. 720) 188 at 216. On the weight of evidence to be attached to the unsigned Project Employment Agreement, counsel said the signed original is still in the custody of the defendant and prayed the court to consider the other documents that establish that an employment contract exists between the claimant and defendant. He cited Alhaji S. Adetoro v. Union Bank [2008] 13 NWLR (Pt. 1104) 255 at 294 where it was held that: “the purport of section 98 of the Evidence Act is that secondary evidence of the content of a document may be given when the original is in possession of the person legally bound to produce it and after notice has been given to the said person to produce it and he has failed to do so. He then urged the court to grant the prayers of the claimant. The defendant’s counsel raised 5 issues for determination as follows – a. Whether filing of pleadings/front-loading of documents alone, without leading evidence under oath to prove same and without its veracity being tested through calling/examination of the party’s witness, when the said party who pleaded same has so chosen and informed/signified his intention of calling a witness to the court to prove same and consequently failing to, automatically amounts to giving of evidence especially considering that the claim in this suit is for declaration and special damages which is to be proved strictly. b. Whether the condition precedent, of conclusion of evidence, as provided in Order 19 Rule 13(1) of the National Industrial Court Rules 2007 referred to by this Court had been fulfilled by the claimant before the Court ordered parties to file and serve final written addresses. c. Whether the Court can grant the claimant’s claim for declaratory reliefs/special damages without the claimant leading evidence in proof of entitlement to same. d. Whether the Court ought to have proceeded to determine this suit by ordering parties to file final written addresses, despite it being informed of the adjourned hearing date (28th June 2012) of the application before the Court of Appeal to stay proceedings of this matter in this Court/the hearing of the interlocutory appeal challenging the jurisdiction of this Court to entertain this suit, after the hearing of same at the Court of Appeal at the last adjourned date (29th February 2012) was hindered by the (expected to be confirmed) report of the claimant counsel to the Court that the claimant is dead. e. Whether the Court ought to have proceeded to determine this suit by ordering parties to file final written addresses despite being informed by the claimant counsel of the likely death of the claimant herein. He argued issues a and b together and submitted that averments in a statement of claim do not go beyond the confines of pleadings unless they are proved by evidence, citing Ojo v. Gharoro [2006] 10 NWLR (Pt. 987), Durosayo v. Ayorinde [2005] 8 NWLR (Pt. 927) 407 at 427 and Ifeta v. SPDC Nig. Ltd [2006] All FWLR (Pt. 314) 305 at 316 – 317. He submitted that a court can only act on the basis of evidence placed before it, citing N.B.C.I v. Alfijir Mining Nig. Ltd [1933] 4 NWLR (Pt. 287) 346 and Obimiami Brick & Stone (Nig) Ltd v. ACB [1992] 3 NWLR (Pt. 229) 260. He contended that the requirement of leading evidence in proof of averments by calling a witness to testify on oath and/or tendering exhibits at trial in proof of same is deducible from Order 20 Rule 2 of the Rules of this Court 2007. He submitted that the claimant has not led any evidence in support of his averments and so the claimant’s pleadings are deemed abandoned. He submitted that Order 19 Rule 13(1) and 4, which the court relied on in ordering the parties to file final written addresses, is subject to a condition precedent of a claimant opening his case, giving evidence and concluding same. That the claimant not having satisfied this condition precedent, the Court ought not to have made the order that final written addresses should be filed and he urged the Court to so hold. He submitted that it is legally impossible to proceed to the stage of final address without evidence having been first led by the claimant. That a claim for damages requires the plaintiff to prove same and is an exception to the general rule that facts not denied is deemed admitted. He cited Vanguard Media Ltd v. Ajoku [2003] FWLR (Pt. 175) 68 and Oke v. Aiyedun [1986] 2 NWLR (Pt. 23) (incomplete citation). He submitted that no court of law will grant a declaration of right either in default of defence or on admission without hearing evidence, citing Bello v. Emeka [1981] 1 SC 101, Kwajaffa v. B.O.N Ltd [1999] 1 NWLR (Pt. 587) 423, Motunwase v. Sorungbe [1988] 5 NWLR (Pt. 92) 90 and Ogunjumo v. Ademola [1995] 4 NWLR (Pt. 389) 254. He argued that this court is duty bound in the absence of evidence being led by the plaintiff to dismiss this case and stated that learned counsel to the claimant was giving evidence by way of address and that submissions of counsel cannot take the place of evidence. He cited Nigeria Arab Bank Ltd v. Femi Kana [1995] 4 NWLR (Pt. 387) 100 at 106 and Chukwujekwu v. Olalere [1992] 2 NWLR (Pt. 221) 86 at 93. He urged the court to discountenance all the submissions of learned counsel for the claimant in the absence of oral testimony. Learned counsel submitted that this Court ought not to have proceeded to determining this matter having been informed of the pending application before the Court of Appeal for stay of proceedings of this matter. He cited Kotoye v. Saraki [1993] 5 NWLR (Pt. 296) 723 for the principles governing the exercise of the court’s discretion in granting a stay of proceedings pending appeal. He referred to University Press Ltd v. Akinluyi [1992] 8 NWLR (Pt. 262) 737, AG Lagos v. Dosunmu [1989] 3 NWLR (Pt. 11) 532, Mohammed v. C.O.P [1987] 4 NWLR (Pt. 65) 420, Okorodudu v. Okoromadu [1977] 3 SC 21, Arojoye v. U.B.A. [1986] 2 NWLR (Pt. 20) 101, Norwood Nig. Ltd v. Stawbau Gmbh & Co [1991] 5 NWLR (Pt 194) 767 and Kigo Nig. Ltd v. Holman Bros. (Nig) Ltd [1980] 5 – 7 SC 60. He submitted that this Court ought to have waited for the Court of Appeal to consider and pronounce on the issues placed before it. He submitted that personal actions die with the person, citing Nzom v. Jinadu [1987] 1 NWLR (Pt. 51) 533. He contended that on being informed by the learned counsel to the claimant’s report to the Court of Appeal that the claimant is dead, and upon the claimant’s counsel’s admission of same before this Court, the Court ought not to have proceeded to determine the suit by ordering parties to file final written addresses but rather ought to have struck out the suit or wait for the Court of Appeal’s pronouncement on the matter in view of the pending application/appeal before it, as well as the report of the claimant’s death which formed the basis of the Court of Appeal’s adjournment of the matter to the 28th of June 2012. This position he said is an alternative to his earlier position that the case be struck out or dismissed. He finally urged the court to dismiss the action as the claimant has not discharged the onus on him to prove his entitlement to the claims; the issue of jurisdiction of this court to hear the matter is yet to be settled, the claimant has not prosecuted this matter diligently and the claimant is reported to be dead. We have carefully considered the originating processes filed, the documentary evidence before the court, the written submissions and the authorities cited. The issues to be determined are (i) whether or not the claimant is entitled to judgement on the strength of the documentary evidence before the court; (ii) whether this court can sit on appeal over its own decisions. As earlier stated above, the defendant’s counsel all through the proceedings did not file a statement of defence despite ample opportunity which he had to do so. It is trite law that where a defendant fails to file a statement of defence, he is taken to have admitted the facts pleaded by the claimant and a trial court has little or no choice than to accept the unchallenged and uncontroverted case placed before it by the claimant. See Consolidated Res Ltd v. Abofar Ventures Nig. [2007] 6 NWLR (Pt. 1030) 221 and Ifeta v. Shell Petroleum Development Corp [2006] Vol. 7 MJSC 123. However, it is not automatic victory as the claimant must succeed on the strength of his case and not rely on the absence of a defence by the defendant. See Ogunyade v. Osunkeye [2007] 15 NWLR (Pt. 1057) 218 and Harka Air Services Ltd v. Keazor [2006] 1 NWLR (Pt. 960) 160. That a defendant did not lead evidence or defend an action against him does not mean that the claimant will automatically be granted his claims. He must still prove his case to the satisfaction of the Court given that the burden of proof is discharged on the balance of probabilities. See sections 131 – 134 of the Evidence Act 2011. The refusal of the defendant to defend this case approximates closely to a defendant who is absent from the hearing of a case; here Order 19 Rule 2 of the Rules of this Court provide that the claimant may prove the claim in so far as the burden of proof lies upon him. See Sholomo Hasson v. Kingstone Grand Suites Limited and anor unreported Suit No.NIC/LA/98/2011 delivered on June 26, 2012. The claimant, who is listed as the only witness to give evidence in support of his claims, was not in court throughout the proceedings. His counsel informed the court that he was out of the country and working offshore and so could not be reached. This is contrary to the submissions of counsel to the defendant at paragraph 3(v) of the written address that the court was informed that the claimant was dead by his counsel. This is most unprofessional and unbecoming of Mr. K. C. Atuenyi counsel to the defendant. There is no evidence before us of the death of the claimant who from the documentary evidence before us has a next of kin named Mrs. Irene Hansen Gorman. In any event, in section 164 of the Evidence Act 2011, there is a presumption of death after a person is shown not to have been heard of for seven years which is not the situation here. It is a sad commentary on the legal profession that a counsel like Mr. Atuenyi will contemplate and even build his case on the supposed death of the claimant in the manner he did in terms of his issues d) and e), knowing full well that there is no shred of evidence as to the death of the claimant. Sadder still is that the issue of the death of the claimant was raised by Mr. Atuenyi himself in open court and was asked by the Court to provide evidence since he asserted it. He could not; and yet in his written address he had the effrontery to build a case on it and then go on to argue that the claimant’s counsel did not provide evidence in that regard. The argument by Mr. Atuenyi that the Court of Appeal adjourned a matter before it on the ground that the claimant in the instant case is dead is not even substantiated. The length that Mr. Atuenyi is prepared to go in order to get a verdict in this case is most detesting and unprofessional. Also detestable is the fact that learned counsel to the defendant in his written address, rather than defend this action, expended time telling this court what it ought to do and not do in respect of his applications, which the court already ruled on. It is elementary law that it is only the appellate courts that can overrule or set aside the decision of a lower court and tell it what it ought to do or not do. It is not in the place of counsel appearing before it to do so on matters he has already filed interlocutory appeals on which are pending before the Court of Appeal. The claimant frontloaded copies of the documents he intended to rely on at the trial in compliance with Order 3 Rule 4(ii) of the Rules of this Court 2007. The documents are the Project Employment Agreement between the parties (which was not signed), the termination letter both of which are pleaded, Worksheets, International passport bio-data and visa page. The claimant also gave the defendant notice to produce the documents in its possession. These are the documents in evidence before the court which are unchallenged and on the basis of these, the Court ordered parties to file their final written addresses. It is trite law that when a contract has been reduced to the form of a document, no evidence may be given of the terms of such contract except the document itself, or secondary evidence of its content in cases where secondary evidence is admissible; nor may the content of the document be contradicted, altered, added to or varied by oral evidence. See section 128 of the Evidence Act 2011. It is, therefore, a misconception for the defendant’s counsel who did not file a statement of defence, to submit that the claimant has not led any evidence simply because he has not given oral evidence. The claimant in proof of the existence of the employment contract has produced an unsigned copy of the letter of offer given to him after having given the defendant notice to produce documents in its possession. We reproduce below the contract and some of the clauses contained therein – 12th June 2009 Private and Confidential Michael Anthony Gorman 28 Stafford Road, Wellington Surrey SM 6 9AA Dear Sir, PROJECT EMPLOYMENT AGREEMENT BETWEEN BATELITWIN GLOBAL SERVICES LIMITED (EMPLOYER) AND EMPLOYEE Further to our discussions we are pleased to offer you a position, subject to satisfactory references and a satisfactory medical examination as LEAD PIPING on OML 130 Egina Development Project, Nigeria on the following terms: These terms and conditions apply for work as detailed in Appendix A. Should you be required to work elsewhere then this will be mutually agreed at that time and an amendment to contract will be issued. 1. Start Date We would like you to join the company in July 2009 subject to successful visa application. 4. Notice Period If either you or the company wishes to terminate your employment one month’s notice in writing must be given by the party wishing to terminate. The company reserves the right to terminate employment without notice in the event of gross misconduct or breach of conduct. 8. Rate of Pay. Your rate of pay is as specified in Appendix A, and payable monthly in arrears. This is effected by transfer into your nominated bank. 10. Living Allowance. The company will in addition to providing accommodation pay a daily allowance. This per Diem will cover all meals, laundry and personal expenditure. 21. Your Declaration. I UNDERSTAND AND AGREE TO ALL THE ABOVE TERMS AND CONDITIONS. We would be glad if you would sign and return one copy of this contract to the undersigned, initialling each, and keep the second copy for your reference. Yours sincerely, For: BATELITWIN Global Services Limited Michel Coupard Yakeen Alabi Managing Director Executive Director Date: ------------------------------------ NB: The Appendix A attached forms part of this Agreement The letter of offer before us is not signed by either of the parties even though it stipulates that the claimant is to sign and return a copy to the undersigned. The document has not provided a place for the claimant to append his signature. However, the question which then arises is whether the claimant was ever in the employment of the defendant given that there is no evidence of any signed copy of the contract of employment before this Court. We find proof that the claimant was employed by the defendant from the letter of termination given to him by the defendant. But there is no proof as to the terms and conditions of that employment or even of the salary paid to the claimant. Reproduced below is the claimant’s termination letter dated 17th December 2009 – Mr. Mike Gorman 28 Stafford Road Wellington Surrey SM6 9AA Dear Sir, RE: CONTRACT ON THE TOTAL EGINA DEVELOPMENT PROGRAMME The above subject kindly refers. We regret to inform you that our client TOTAL has intimated us of their decision to demobilise you on the Egina Development Programme with effect from December 2009, despite the efforts we made to convince them otherwise. We use this medium to thank you for your immense contribution on the programme and wish you all the best in your future endeavours. Please ensure that all the company’s documents in your possession are returned. Thank you. Yours Faithfully, For: BATELitwin Global Services Limited. Nimisore Akano The termination letter refers to the Egina Development Project, which is the Project he was employed to work as Lead Piping in the Employment Agreement. Although we find that the claimant was in the employment of the defendant, there is no evidence on record to indicate the terms and conditions of the employment; neither is there evidence of the salary paid to him. In consequence, we hold that the claimant has not proved his claim on the balance of probability and to the satisfaction of this Court. The claimant’s case, therefore, lacks merit and is hereby dismissed. We make no order as to cost. Judgement is entered accordingly. …………………………… Hon. Justice B. B. Kanyip Presiding Judge ........….……………………………. ………………………….……… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge