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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 19TH MARCH, 2015 Suit No. NICN/ABJ/150/2012 BETWEEN MR. T. S. AGIH CLAIMANT AND THE HON. MINISTER FEDERAL MINISTRY OF EDUCATION DEFENDANT ABUJA. REPRESENTATION Ehjah Igoh Esq for the Claimant. Yewande Gbola-Awopetu Esq for the Defendant. JUDGMENT The claimant by a complaint dated and filed on 18th May, 2012, claims against the Defendant as follows:- i. A refund of the sum of N10,500 (Ten Thousand Five Hundred Naira) Only deducted illegally from claimant’s Account by the College at Kabba. ii. The balance of Arrears of Salaries from April to December, 2005 in the sum or N159,771 (One Hundred and Fifty-nine Thousand Seven Hundred and Seventy-one Naira) Only. iii. Transport Allowance in the sum of N465,465 (Four Hundred and Sixty-five Thousand Four Hundred and Sixty-five Naira) Only. iv. Duty Tour Allowance in the sum of N2,500 (Two Thousand Five Hundred Naira) Only per night for 10 days amounting to N25,000.00 (Twenty-five Thousand Naira) Only. v. First Twenty-eight days allowance in lieu of hotel accommodation for Rubochi in the sum of N250,000 (Two Hundred and Fifty Thousand Naira) Only. vi. Resettlement allowance at 5% of basic salary as at the time of posting in the sum of N1,500 (One Thousand Five Hundred Naira) Only. vii. The cost of local running in the sum of N10,000 (Ten Thousand Naira) Only. viii. Apologies for my ill-treatment by the Defendant. ix. Damages in the sum of N500,000 (Five Hundred Thousand Naira) Only for trespass to my properties, ill-treatment by the Defendant and damages for illegal ejection from his apartment at Federal Government College, Kabba. Accompanying the complaint are claimant’s statement of facts, witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. In reaction to the complaint, the defendant entered the memorandum of appearance dated 26th June, 2012 and filed same date. By a motion on Notice moved on 10th of October, 2012. The defendant statement of defence were deemed properly filed and served. The matter went on trial, the claimant examination in chief was done on the 22nd February, 2013 and concluded same date. The defendant failed since that time did not cross-examine the claimant neither did they open their defence. I must comment on the work ethics of the counsel that represented the defendant in this case in the person of Yewande Gbola-Awopetu (Mrs) her attitude to work is appalling and counsel has no regard and respect for the court, she is not a fit officer to be retained in Government Service. A very lazy officer. This case suffered several adjournment due to the fact that the defendant did not come to court until 15th of October, 2014, when the defendant case was forclosed for lack of diligent prosecution, inspite of several hearing notice sent to the defendant. On the 18th February, 2015, the claimant finally adopted his final written address. The claimant raised a lone issue which is whether the complainant has proved his case to warrant the grant of the reliefs sought. The claimant gave a very tense submissions in his final address submitting that the claimant’s witness statement Oath and documents were admitted in evidence. That the claimant tendered documents to buttress and established his case. The claimant further pointed out that evidence he led was never controverted by the defendant and must therefore be taken as the truth by the court. Having carefully considered the case of the claimant the pleadings and oral evidence issue for the court to determine is whether the claimant is entitled to this claims. It is settled law that where a party to an action fails to testify in support of facts in his pleadings those facts are deemed abandoned. In the instant case there is no evidence on record. In OJOH V KAMALU (2005) 18 NWLR (PT. 958) PG 523 @ 565, PARAS G – H, the Supreme Court per TOBI, JSC held thus:- …… Pleadings, not being human beings have no mouth to speak in court. And so they speak through witnesses. If witnesses do not narrate them in court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantages of the owner ….. In ALAO V AKANO (2005) 11 NWLR (PT. 935) 160 @ 180 PARA ….. where AKINTAN, JSC held as follows:- ….. The law is settled that where issues are joined on any averments in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned. On the import of an abandoned pleading, the Court of Appeal per OGUNBIYI JCA (AHTW) IN AREGBESOLA V OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 548 @ 597 PARAS C – D stated the position of the law more aptly thus:- ….. an abandoned pleading is dead and “to the procedural disadvantage of the owner. “Further still and in addition to it being dead, the effectual presupposition is that issues are no longer joined because their being nature of the pleadings can no longer speak through the language of a witness. The consequential outcome is that the there would be no reply at all on record in which case, issues are no longer denied because there is no denial. In DANJUMA V TERENGI (2011) 6 NWLR (PT. 1244) PG 542 @ 557 PARAS A – B, the Court of Appeal per YAYAHA stated the position of the law thus:- ….. In the instant case, although the respondent pleaded who founded the land originally, he did not lead any evidence in proof of the pleading. Pleadings not supported by evidence are deemed abandoned …. The case of the claimant is that between July and November, 2005 he was posted five times to four schools. He reported to all the colleges he was posted to by the defendant but that the defendant refused to pay the usual allowance due to him on such transfer. The letters of posting are reproduced hereunder:- 1. Re-posting letter to FGGC, Kabba to FSTC Jalingo from FGGC Kabba by a letter dated 8th March, 2005. 2. Re-posting letter from FGGC, Kabba to FGC, Keffi dated 15th September, 2005. 3. Re-posting letter from FGGC, Kabba to FGC, Sokoto dated 26th November, 2005. 4. Re-posting letter from FGGC, Kabba to FGC, Rubochi dated 22nd November, 2005. 5. Re-posting letter to Federal Government College, Keffi dated 13th September, 2005. All the posting took immediate effect. In the course of moving from one school to the other he incurred some expenses listed below:- i. A refund of the sum of N10,500 (Ten Thousand Five Hundred Naira) Only deducted illegally from claimant’s Account by the College at Kabba. ii. The balance of Arrears of Salaries from April to December, 2005 in the sum or N159,771 (One Hundred and Fifty-nine Thousand Seven Hundred and Seventy-one Naira) Only. iii. Transport Allowance in the sum of N465,465 (Four Hundred and Sixty-five Thousand Four Hundred and Sixty-five Naira) Only. iv. Duty Tour Allowance in the sum of N2,500 (Two Thousand Five Hundred Naira) Only per night for 10 days amounting to N25,000.00 (Twenty-five Thousand Naira) Only. v. First Twenty-eight days allowance in lieu of hotel accommodation for Rubochi in the sum of N250,000 (Two Hundred and Fifty Thousand Naira) Only. vi. Resettlement allowance at 5% of basic salary as at the time of posting in the sum of N1,500 (One Thousand Five Hundred Naira) Only. vii. The cost of local running in the sum of N10,000 (Ten Thousand Naira) Only. viii. Apologies for my ill-treatment by the Defendant. ix. Damages in the sum of N500,000 (Five Hundred Thousand Naira) Only for trespass to my properties, ill-treatment by the Defendant and damages for illegal ejection from his apartment at Federal Government College, Kabba. In support of this claim the claimant tendered a letter dated 22nd June, 2009 addressed to the Principal FGGC, Kabba by Mrs. O. Aboje Deputy Director (APD) the letter reads Exhibit PW5 reproduced:- DEPARTMENT OF ADMINSTRATION FEDERAL SECRETARIAT COMPLEX PHASE III 146 P. 58154/1/321 MINEDUCATE 22nd June, 2009 The Principal, Federal Government Girls’ College, P.M.B. 237, Kabba, Kogi State. PAYMENT OF MR. T. S. AGIH’S UNSETTLED ENTITLEMENTS I write to refer to your letter No. FGGC/KAB/CON./16 dated April, 2007 on the above subject and to advise that you settle the matter once-and for all as follows:- (i) You are to forward to this office evidence of compliance with the directive conveyed by the Ministry’s No. FME/ABJ/01/1/112 dated 8th May, 2008 concerning Mr. T. S. Agih’s 28 days’ allowance in lieu of hotel accommodation; (ii) You are to source funds to settle his 2005 leave Transport Grant at the prevailing rate and arrears of salaries from April to December, 2005. 2. I am to also inform you that Mr. T. S. Agih has simultaneously been directed to remove his belonging from the store and you are expected to grant him access accordingly. 3. Prompt compliance is expected. SIGNED O. Aboje (Ms) Deputy Director (APD) For: Honourable Minister CC: Mr. T. S. Agih, Federal Government College, Rubochi, P. M. B. 477 Garki-Abuja. Above is for your information, particularly paragraph 2 and 3. SIGNED O. Aboje (Ms) Deputy Director (APD) For: Honourable Minister The claimant has therefore proved his case against the defendant and he is therefore entitled to his claims, as the claims have not been controverted by the defendant. Lastly, the claimant is demanding for the sum of N500,000.00 (Five Hundred Thousand Naira) Only as damages, for trespass to his properties, ill-treatment and for illegal ejection from his appointment at the Federal Government College, Kabba by the defendant. Damages are those damages presumed by law to be direct natural and probable consequence of the act complaint of and generally incapable of exact evaluation. Therefore in awarding damages, a trial court must make its own assessment of the quantum of such damages in the light of the evidence adduced and not base its award on speculative claims. The defendant must have been found liable of the acts complained of and that would be the bases of which the court would rest whatever damage it sees fit to grant to the claimant. In the instant case, the claimant has been made to incure unnecessary expenses by the defendant by it’s failure to pay the claimant the money he expended in the court of his official duty. The claimant is asking for a modest sum of N500,000.00 (Five Hundred Thousand Naira) Only which is granted as general damages. This is because this case would not have been initiated in the first instance if the defendant had responded to the claimant’s claims. For the reasons given above, the claimant case succeeds and the claims must be settled within 30 days. Judgment is entered accordingly. _________________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE