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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: MARCH 26, 2015 SUIT NO: NICN/LA/373/2013 BETWEEN Mr. Jonathan Ogbeide - Claimant AND 1. Famfa Oil Limited 2. Mr. Modupe Alakija - Defendants REPRESENTATION Y. A Ajayi, Mrs. C.W. Bello and O. T Akinbolade for the Claimant. S. O. Ajayi and Abiodun Raji for the Defendant. JUDGMENT On 16/7//13 the Claimant approached this Court for the following reliefs - 1. A declaration that the non-payment of the Claimant’s unpaid salaries from August 2010 to August 2011 and other allowances is unlawful. 2. A declaration that the Claimant’s fundamental human rights are breached in the workplace. 3. A declaration that the Claimant is entitled to special damages for unlawful detention, harassment and maltreatment. The Claimant also filed a Statement of Claim, Witness Statement on Oath, List of Claimant’s Witness and List of Documents all on the 16/7/13 and attached copies of the Claimant’s Letter of confirmation of appointment dated 27/6/08, Letter of Performance Appraisal/Salary Review dated 14/1/10; the ruling at Court 19, Igbosere Magistrate Court, in the Magisterial Division, Igbosere, Lagos, Letter invitation for a meeting from the office of Public Defender dated 15/5/12 and 8/6/12, Letter from his counsel dated 3/8/11. The Defendant subsequently filed its Statement of Defence, List of Witness (es), Witness Statement on Oath of Mr Modupe Alakija, List of Documents to be relied upon by the Defendant dated 4/10/13. However in his statement of facts filed on 16/7/13, learned Counsel for the Claimant rather than repeated the reliefs sought as contained in his General Form of Complaint sought the following reliefs - ''A. SPECIFIC DAMAGES a. Outstanding salaries for 12 months =N=1,011,000.00 b. Housing Allowance 210,000.00 c. Transport Allowance 176,400.00 d. Lunch Allowance 129,360.00 e. Security Deposit 200,400.00 B. SPECIAL DAMAGES The Claimant claims against the Defendants the sum of =N=15,000,000.00 as special damages for unlawful detention, harassment, false accusation and inhuman treatment. The Claimant further claims 10% interest from the date the matter is filed till the date of judgment and thereafter 5% interest till the final liquidation of the indebtedness and for such further cost as adjudged by this Honourable court''. The Claimant opened his case on the 16/1/14 by adopting his Statement on Oath filed on the 16/7/13 and tendered the following 5 documents, Letter of Confirmation of Appointment dated 27th June 2008. Letter of Performance Approval/Salary Review dated 14/1/10, the Ruling at Court 19, Igbosere Magistrate Court, in the Magisterial Division, Igbosere, Lagos, Letter of invitation for a meeting from the Office of the Public Defender dated 15/5/12 and 8/6/12 and Letter from his Counsel dated 3/8/11. The 5 documents were admitted as exhibits and marked as Exh. JO1 - Exh. JO5. The Claimant concluded his evidence on the 16/1/14, was crossed-examined and there was no re-examination. The case for the Claimant is that he was employed as a Driver by the Defendant on 11/6/07 and his appointment confirmed on 27/6/08; that he worked with the 2nd Defendant directly as personal Driver for three years and two months on a monthly basic salary of =N=84,256.25; that he was not paid his salaries for twelve months from 23/8/10-1/8/11 totaling =N=1,011,000.00; that he was also denied his housing, transport, lunch allowances and his security deposit which was deducted from his salary every month; that he was on two occasions accused by the 2nd Defendant falsely for stealing money and made to suffer for an offence he did not commit; that he was on 22/8/10 harassed by the 2nd Defendant and caused to be arrested by the Police, detained, falsely accused of stealing and arraigned before a Magistrate Court at Igbosere in Lagos and was eventually discharged and acquitted of two count charge of stealing and conspiracy and that his appointment was neither terminated nor his entitlement paid to him. Under cross examination, CW testified he instituted a case in the past in this court on the same claim as the present one on 6/2/13; that he gave the same evidence as he gave here today in that case and the case was adjourned for defence; that before the Defendant opened its case, he filed a notice of discontinuance of the case and that he is in this Court to pursue his claim against the Defendants. Witness testified further that when he filed a Notice of Discountenance on 27/5/2013 it was his intention to come back to court to file matter afresh; that the 1st Defendant was his employer; that he does have his letter of employment which was lost when he was moving from one house to the other; that the said letter contained conditions of his employment; that he accepted the conditions as stated in that letter; that he last reported for work with the 1st Defendant on 22/8/10; that he sent in his letter of resignation to Defendant on 3/8/11; that Defendant received it same day, rejected the letter and refused to acknowledge same and that his Counsel sent the letter that his Counsel told him that the Defendant refused to accept the letter. According to the witness, he voluntarily resigned from his former employment before joining the 1st Defendant; that 1st Defendant did not ask him to resign; that since 26/9/10 he had been engaged in odd jobs; that the only time he did not work was when he was in Police detention; that he engaged in those jobs to earn a living but it was not enough to take care of his family and that his claim before the court was not to augment his meager income from his odd jobs. Witness added that he never received any letter of termination; that he was not allowed entrance into the Defendant’s office; that he tried several times he was not allowed to enter the Defendant's office. The Defendant opened its case on 14/5/14. It called the 2nd Defendant as its lone witness. Witness adopted his witness deposition dated 4/10/14 as his evidence in chief and tendered three documents. The documents were admitted and marked as Exh.D1 - Exh. D3. Witness urged the Court to dismiss the claims of the Claimant. The case for the Defendants in brief is that the Claimant was a former employee of the 1st Defendant and employee as a Driver of the 2nd Defendant; that when some money was discovered to have been stolen reports were made to the Police; the Police at its discretion arrested and detained the Claimant and charged him to Court; that the Claimant terminated his employment when he stopped reporting for work; that Claimant was only entitled to 20 working days as annual leave; that by walking away from his duty post the Claimant had ceased to be an employee of the 1st Defendant; that the Claimant refused to pick up his letter of termination together with one month salary in lieu of notice; that the Claimant's appointment was terminated as far back as 1/9/10; that the Claimant had filed an earlier suit No: NICN/LA/461/2012 in which trial commenced and was cross examined before he discontinued same and that the present suit is an abuse of the process of Court. Under cross examination, witness testified that Claimant’s appointment was confirmed; that he could not remember the last salary of the Claimant; that he was not the Accountant; that part of Claimant’s salary was deducted for security purposes; that Claimant has not come forward to collect his cheque; that he did not arrest, harass or detain the claimant; that he does not have any detention facility in his house or his office; that he only reported a case of theft to the Police; that he was aware that the Claimant was arraigned at the Igbosere Magistrate Court on 25/8/10 and that he was not aware that the Claimant was discharged by that Court because the Ruling was not sent to him. According to the witness, when he reported the matter to the Nigerian Police the Police at their discretion decided to arrest and arraign the Claimant in court; that during this period Claimant's salary was not paid; that at times salaries are paid by cash and at other time paid into Bank account and that he only met Claimant in court upon a witness summon. DEfendant testified that he was in Court for the duration of the trial but could not remember the precise duration of the trial; that Claimant never came to office but was always going to Court during the trial; that he was not owing the Claimant any salary; that Claimant's employment was terminated and that he has the right to terminate Claimant’s appointment with a month salary in lieu of notice. In re-examination, witness testified that he gave evidence during the trial of the Claimant at the Magistrate's Court. At the conclusion of trial on 14/5/14, the Court adjourned for learned Counsel to file their final written addresses for adoption. The final written address of the Defendant was filed on 3/6/14. In it, learned Counsel set the following four issues down for determination - 1. Whether the Claimant is entitled to the reliefs that he claims in the complaint dated 16/7/12 filed in this case. 2. Whether the Claimant is entitled to his claims as contained in his statement of fact dated 16/7/13 filed in this case. 3. Whether the Claimant is entitled to damages as claimed or/and whether this Honourable Court has the jurisdiction to award damages. 4. Whether this suit in its entirety is not an abuse of Court process. Arguing issue 1, learned Counsel submitted that the reliefs claimed as stated in the originating process were not repeated in the statement of facts and that not having done so, the reliefs stated in the Complaint have been abandoned. Learned Counsel cited Ezekiel v. Westminster Dredging Limited (2000)9 NWLR (Pt. 248) 248 at 261. Counsel urged the Court to hold that the Claimant's claims as contained in the Complaint dated 16/7/12 are abandoned same not having been repeated in the statement of facts. On issue 2, learned Counsel submitted that the Claimant is not entitled to his claims as contained in statement of facts dated 16/7/13. Learned Counsel referred to the circumstances under which the Claimant ceased to work with the 1st Defendant; added that the Police in the exercise of their powers arrested and prosecuted the Claimant; that when Claimant refused to return to work his appointment was terminated by Exh. D2 and that the Defendant needed not wait till the outcome of the criminal prosecution before terminating the employment of the Claimant referring to Ogbuagu, JSC in Ansambe v. Bank of the North (2005)8 NWLR (Pt. 928) 650 at 672. According to learned Counsel, the Defendants are not liable to pay the Claimant arrears of salaries and allowances as the Claimant under cross examination had stated that ''he had already started drawing salaries and allowances in another employment since September 2010'' and that the Claimant is only entitled to one month salary in lieu of notice for his termination which the 1st Defendant had notified him to come and collect since September 2010 but has refused to collect. Counsel referred to Exh.D1 and the conditions therein. With respect to Claimant's claim for security deposit from the 1st Defendant, Counsel submitted that if at all, Claimant could only claim security deposit for 10 months after his employment. Counsel referred to page 2 of Exh. D1 where it was stated that security deposit was deductible for 10 months only. Counsel further added that by Exh. D1 the Claimant would only be able to recover security deposit if there is no event or incident requiring a deduction at the end of his service, citing Abalogu v. Shell (2003)MJSC 60 at 80. Counsel urged the Court to resolve this issue in favour of the Defendant. Issue 3 is whether the Claimant is entitled to damages as claimed or/and whether this Honourable Court has jurisdiction to award damages at all. Learned Counsel submitted that the Claimant is not entitled to =N=15,000,000 claimed as damages for unlawful detention, harassment, false accusation and inhuman treatment on the ground that this Court does not have jurisdiction to award damages for any alleged breach of fundamental human rights, relying on section 46, Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 254C, Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act. Learned Counsel argued further that the law is now well settled that for a party to successfully claim special damages, the special damages must be alleged with particularity and proved strictly and the Claimant must distinctly state the amount of loss or damage which he suffered and prove how such amount is made up or calculated. Counsel cited Badmus v. Abegunde (1999)11 NWLR (Pt. 627) 493 at 502-504 and Calabar East Co-Op. v. Ikot (1999)14 NWLR (Pt. 638)225 at 240. Counsel submitted that Claimant's claim for damages was based on the presumption that the 2nd Defendant was responsible for his arrest, detention and prosecution but that mere reporting a case of theft to the Police should not render him or the 1st Defendant liable in damages. He urged the Court to hold as such. Issue 4 as raised on behalf of the Defendant is whether the entire suit is not an abuse of Court process. Learned Counsel referred to Suit No: NICN/LA/461/2012 which the Claimant had earlier filed and which after cross examination Claimant filed for discontinuation. According to learned Counsel, the present suit is a re-litigation of the suit which was discontinued by the Claimant. Citing Ekundayo v. Keregbe (2008)4 NWLR (Pt. 1077) 422 Counsel urged the Court to hold that the present suit amounts to an abuse of Court process. Finally, learned Counsel urged the Court to dismiss the suit of the Claimant. The Claimant's final written address was filed on 17/7/14. In it learned Counsel set down 4 issues for determination. They are as follows - 1. Whether the Claimant is entitled to his unpaid salaries and allowances from August 2010-August 2011. 2. Whether the National Industrial Court can hear the issue of violation of fundamental right in the work place 3. Whether the Claimant's right was indeed violated in the workplace. 4. Whether the Claimant is entitled to damages for unlawful detention and harassment. On issue 1, learned Counsel submitted that the relationship between employer and employee is governed by the terms of contract of employment and that the right and liabilities of the parties are determined by the terms of contract, citing Odeh v. Asaba Textiles Mills Plc (2004)All FWLR (Pt. 22) 2163 at 2173. According to learned Counsel, the Claimant's appointment was terminated shortly after he was arraigned before the Magistrate Court on allegation of stealing. Counsel submitted, relying on John Anakism v. UBN Limited (1994)1 NWLR (Pt. 322) 557 that where dismissal of an employee is based on criminal charge or allegation, such allegation must first be proved before dismissal can stand. Counsel also referred to Dangote v. CSC Plateau State (2001)9 NWLR (Pt. 717) 132. Claimant having been discharged of all the criminal charge leveled against him, Counsel urged the Court to hold that the termination of his appointment is unlawful, null and void. With respect to issue 2, learned Counsel pointed out that by virtue of Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the National Industrial Court of Nigeria shall exercise jurisdiction in matters relating to or connected with any dispute over the interpretation and application of the provision of Chapter IV of the Constitution as it relates to any employment, labour, industrial relation etc. According to learned Counsel, the Claimant's right to dignity of his person was violated by the Defendant; that Claimant was brutalised and abused by the Defendants and further reported to the Police relying on Maiya v. Incorporated Trustee Clinton Health Access Initiative Nig. & Ors (2012)27 NLLR (Pt. 76) 125. Counsel urged the Court to so hold. On whether the Claimant is entitled to damages for unlawful detention and harassment, learned Counsel submitted that the Claimant is so entitled. Counsel submitted that award of damages will be made in civil litigation where a party has suffered loss or been traumatized by reason of intimidation in the process of earning a living or where a person is subjected to inhuman treatment. According to learned Counsel, where an employee's appointment is terminated due to an unproved criminal allegation which carries with it some stigma on the character of the employee, the employee is entitled to substantial damages beyond his salary, citing British Aiways v. Makanjuola (1993)8 NWLR (Pt. 311) 276. Counsel urged the Court to so find for the Claimant. On the issue of abuse of Court process canvassed by the Defendant, learned Counsel argued that there was none; that the Claimant discontinued the initial proceedings on discovery of procedural error after the matter had been adjourned three times at the instant of the Defendant; that the notice of discontinuance filed was not in violation of the rules of Court and that the matter was struck out which then entitled the Claimant to re-file. Finally, learned Counsel prayed the Court to grant all the reliefs of the Claimant as sought. This case was initially slated to be delivered on 26/3/15. Unfortunately the Easter Vacation of the Court was to commence on the 25/3/15. The option was to adjourn delivery of the Judgment till after Easter vacation, the Judgment would have been caught with the three-month Rule for delivery of Judgment and in this case further delayed. Hence Hearing Notices were issued and served on learned Counsel and parties to attend Court today for this Judgment. I have read all the processes filed by learned Counsel in this matter. I reviewed and evaluated all the exhibits tendered and admitted as well as watched the demeanour of the witnesses during trial. Having done all this, I have come to narrow the issue for determination in this case down to - Whether the Claimant is entitled to any or all the reliefs sought in this case. I have stated above that the reliefs sought by the Claimant in his General Form of Complaint filed on 16/7/13 differ from the endorsement of claims on his statement of facts. The learned Counsel for the Defendant had urged the Court to discountenance the reliefs sought by the Claimant in his General Form of Complaint as having been abandoned. The law is trite that statement of claim (statement of facts in this case) supersedes the writ. The acceptable practice is for the endorsement of claims on the writ to be repeated in the statement of claim. Where this is not done, the claims on the writ are deemed abandoned and it is what is in the statement of claim that the Court will take cognisance of and use for the determination of a case as what was excluded will be deemed abandoned, see Arabambi & Anor. v Advance Beverages Industry Limited (2005) LPELR-529 (SC). See also Sani Abacha Foundation for Peace and Unity & Ors. v. UBA Plc (2010)LPELR-3002 (SC). The endorsement on the General Form of Complaint in this case is therefore discountenanced having been deemed abandoned by the Claimant and the reliefs sought in the statement facts considered for the purpose of determining this case. The inherited system of civil adjudication in this country is predicated on a party approaching the Court to adduce credible and admissible evidence in support of his claim. Agreed that pleadings are made generally, but those pleadings must be backed up by evidence. The same principle is applicable with respect to claims or reliefs sought before the Court. Thus it is not sufficient for a party to ask the Court for a grant of a relief. The asking must be backed by credible and admissible evidence. In the absence of such proof, no claim or reliefs sought will be granted. The first relief sought on the statement of facts filed on 16/7/13 are for outstanding salaries, Housing Allowance, Transport Allowance, Lunch Allowance and Security Deposit. In proof of his case the Claimant tendered 5 exhibits. Unfortunately, none of these exhibits has any bearing or support this head of relief sought by the Claimant. Paragraphs 18, 19, 20, 21 and 22 of the statement of facts are averments in relation to the alleged outstanding salaries and allowances of the Claimant. Aside from these averments, I find no evidence adduced in proof of the reliefs sought. I find, for instance no evidence of the last time the Defendant paid the Claimant's salaries and allowances; no evidence of when the Claimant stopped working for the Defendant or when his appointment was terminated, if at all, and there is also no evidence of pay slips of the Claimant's salaries and allowances. Therefore not having been proved this head of relief sought by the Claimant is refused and dismissed. The second relief sought is for special damages in the sum of =N=15,000,000.00 for unlawful detention, harassment, false accusation and inhuman treatment. The basis of this relief would seem to be the fact that the Claimant was arrested, detained, charged and prosecuted at the Magistrate's Court for stealing and eventually discharged. By paragraphs 8 and 9 of his statement of facts, Claimant had averred that on two different occasions the 2nd Defendant accused him falsely for stealing money and made to suffer mercilessly for an offence he did not commit and caused him to be arrested by the Police. The response of the Defendant was that the 2nd Defendant merely reported the matter to the Police and it was left to the Police to decide whether to investigate, arrest and prosecute for the crime alleged. Again aside from the averments in the statement of fact, I have no credible evidence to support the claim for special damages. The law as well stated in the case of Agunwa v. Onukwe (1962)1 All NLR 537 which is the locus classicus on the subject is that special damages must be strictly proved. Now, on what constitutes special damages, the Court of Appeal in Solaru v. Tejumola (2014) LPELR-CA/178/2011 per Dongban-Mensem, JCA at pp. 28-29 said as follows - ''The case of Ahmed & Ors. v. CBN (2012) LPELR-9341 (SC) Fabiyi, JSC defines special damages as follows: 'Special damages have been defined as those which are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588, 163 A-2nd 278, 286. Such are damages which do not arise from wrongful act itself, but depends on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonably forseeable. Special damages must be specially pleaded and proved. (Black's Law Dictionary, Sixth Edition, page 392). In the old case of Hadley v. Baxendale (1854)9 Exchequer 341, it was held that Special damages are recoverable by the injured party if the loss may be fairly and reasonably considered to arise naturally. The loss must be reasonably supposed at the time of making the contract to have been in the contemplation of both parties as the probable consequence of its breach''. The case of Akinkugbe v. Ewulum Holdings Nigeria Limited & Anor. (2008) LPELR-346 (SC) per Aderemi JSC at page 12-13 looked at what constitute special damages as follows: 'Special damages said Bowen LJ in Radcliffe v. Evans (1892)2 Q.B 524 C.A at 258, means the particular damage (beyond the general damage), which result from the particular circumstances of the case, and the plaintiffs claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial'. (See also Saleh v. Bon Ltd (2006) LPELR-2991 (SC), Xtoudos Services Nigeria & Anor. v. Taisei (W.A) Ltd & Anor. (2006) LPELR-3504''. On the authority as cited, I find no proof of the Claimant's claim for entitlement to special damages. Not having been proved, this relief is refused and dismissed accordingly. The last relief sought is for interest on the judgment sum. This claim is predicated on the Court awarding any sum to the claimant. It is obvious from this Judgment that no amount has been awarded the Claimant in this suit. That being the case, a claim for interest cannot succeed. For, as Lord Denning pointed out in UAC v. MacFoy (1962) AC 152, you cannot put something on nothing and expect it to stay there. The main claim having failed for lack of proof by credible and admissible evidence, this claim also fail and is dismissed, Finally and for the avoidance of doubt, all the reliefs sought by the Claimant are refused Claimant not having adduced credible and admissible evidence in support of them and are dismissed. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge