IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
5TH DAY OF JULY 2019 SUIT NO: NICN/KD/17/2018
INCORPORATED TRUSTEES OF CITIZENS
FOR PEACE AND FIRST AID MISSION OF NIGERIA CLAIMANT
1. OCEAN PROPERTIES EQUILIBRIUM CONCEPT LTD
2. USMAN IBRAHIM DANKALILI DEFENDANTS
Ifeanyi Chukwurah, Esq; For the Claimant, holding brief of I. S. Yahaya, Esq;
The claimant approached this Court via general form of complaint dated 17/04/2018 and filed on the same day. The complaint was accompanied with Statement of facts, witness statement on oath, list of documents, and photocopies of documents to be relied on at the trial. The claimant vide this action is seeking for the following reliefs;-
a. A DECLARATION that there was an existing contract for service between the claimant and the defendants until the 30th day of November, 2017.
b. A DECLARATION that the defendants are in default of the payment of the claimant’s entitlements for three months from the 1st September, 2017 to 30th November, 2017 in the sum of One Million Five Hundred Thousand Naira (N1,500,000) only.
c. ORDER of the Honourable Court compelling the defendants to pay to the claimant their entitlements due to them from 1st September, 2017 to 30th November, 2017 in the sum of One Million Five Hundred Thousand Naira (N1,500,000) only
d. Interest on the aforesaid sums at the rate of 10% per annum from the date of judgment until final liquidation.
e. One Hundred and Fifty Thousand Naira (N150, 000) being the professional fee of the Legal Practitioner.
f. Cost of filing this suit.
Case of the Claimant
The commandant of the claimant testified on behalf of the claimant as CW1. CW1, after adopting his witness statement on oath as his evidence in this case. CW1, in the course of giving evidence in chief tendered 3 documents in evidence which were admitted in evidence and marked as exhibits CW1A1-2, CW1B, and CW1C1-6.
From the statement of facts and CW1’s witness deposition on Oath and the oral testimony, the case of the Claimant was that the Claimant’s organisation is a registered company under Part C of the Companies and Allied Matters Act. LFN 1990. According to CW1, the claimant was contracted by the Defendants to provide security services at the defendants’ construction site at the Police Estate Bubban Saura, Kaduna. Consequent, upon which 10 security personnel were deployed to the defendants’ construction site at Babban Saura, Kaduna. When CW1 assumed mantle of leadership of the claimant as Commandant Kaduna, he wrote to the defendants to request that payments for the security personnel should be paid via the claimant’s Bank account. The defendants acceded to the request and continued to pay the monthly security personnel’s salaries through the claimant’s bank account. It was stated by CW1, that in the month of August, 2017, the claimant avers that the defendants demanded for more security personnel and it provided 15 more personnel for the defendants bringing the total number of personnel provided by the claimant’s organisation to 25. The claimant avers that the defendants paid each of the security personnel provided the sum of Twenty Thousand Naira (N20,000) per month, and made the said payment diligently until the month of August 2017 when the defendants stopped making the said payments. The defendants payment from the month of April 2017 to August 2017 where evidenced in EXHIBIT CW1 C1-6 which was a photocopy of transaction in account number 6060160134 with Fidelity Bank in respect of Citizen for Peace and First Aid Mission of Nigeria. It is the evidence of CW1, that from the moment the increase in personnel was effected to the defendants’ site, the defendants failed to pay the claimant’s staff from the 1st of September, 2017 to 30th November, 2017. The claimant further avers that for the services rendered to the defendants for three months commencing from 1st September -30th November, 2017 calculated at N20,000 per person which brings the total of N20,000 by 25 persons for a period of three (3) months to N1,500,000 (One Million Five Hundred Thousand Naira) only. It was also stated that the claimant was forced to withdraw the security services from the defendants by a letter Dated 1st day of December, 2017 due to non-payment of salaries owed the claimants security personnel posted to the defendants’ site. The refusal of the defendants to pay for the security services rendered led to writing of letters of demands dated 13th November, 2017 and 31st January, 2018 attached and marked as EXHIBIT CW1A1-2, wherein the salaries of the 25 personnel sent to the defendants’ site was demanded. However, the defendants still failed to respond to the said letters, the claimants engaged its solicitors Yahaya Esq; of M.ABU & PARTNERS to institute the instant suit against the defendants and the solicitor charged the claimant the sum of N150,000 (One Hundred and Fifty Thousand Naira) only and evidence and the receipt issued by the solicitors marked as EXHIBIT CW1B.
Despite being served hearing notices, the defendants failed to appear and failed to show interest to defend the suit. On the 23/01/2019 the court ordered the foreclosed of the defendant from both cross-examination and defence.
The claimant’s final written address was dated and filed on 26/02/2019. I.S. Yahaya, Esq; counsel for the Claimant adopted the written address as his argument in this suit while praying the Court to grant all the claimant’s reliefs. In the written address a sole issue was formulated for determination; to wit:
‘’Whether from the evidence available before the Court the Claimant is not entitled to an award of Judgment to his claim”.
In arguing the sole issue, counsel for the claimant urged the Court to enter judgment in favour of the claimant due to the defendants’ failure, neglect and refusal to enter appearance or defence despite being served with the originating processes and all other processes and hearing notices.
It is the submission of counsel that in the case of AJIBARE VS AKOMOLAFE (2013) ALL FWLR PT 672 PAGES 1689 @ 1742, the Court of Appeal, held thus;
“….the standard of proof required here is on a balance of probabilities or preponderance of evidence. The evidence of the Respondents on those facts found are established by the learned trial judge was neither challenged nor uncontroverted. Furthermore, the plaintiffs need not call a host of witnesses. Testimony of a single witness which is credible and uncontroverted will suffice…”
It is the contention of counsel that since the claimant’s claims against the 1st and 2nd Defendants as contained in the statement of claim and his sole witness deposition is credible, uncontroverted and unchallenged the Honourable Court should enter judgment in favour of the claimant and grant the reliefs claimed. On this contention, counsel relied on BURUTOLOU V YEIBAKE (2015) ALL FWLR PT 771 PG.1534 @ 1545 PARAGRAPH C-E where the court held;
“Where evidence given by a party to any proceedings was not challenged and was neither discredited nor demolished by the opposite party who had opportunity to do so, the court of trial has a duty to act on the unchallenged evidence before it”.
In concluding his argument counsel urged the court to enter judgment in favour of the claimant as per the claims before the court.
I have perused the originating process commencing this suit and the entire processes filed before the court. What this court is to resolve is the issue of existence of a valid contract between the claimant and the defendants to entitled the claimant to the reliefs sought.
It is to be noted at the onset that the defendants in this case did not deemed it necessary to enter appearance and put up a defence to the claimant’s claim despite being served with the originating process commencing this suit and hearing notices. This means that the court did not have the opportunity of having to hear the version of the defendants’ case, as a result of the failure by the defendants to enter appearance and filed defence to the action.
However, the law is well settled that absence of any defence from the defendants does not mean an automatic judgment for the claimant. For, a claimant can and will only succeed on the strength of his case rather than on the weakness of the case of his adversary. See Gonimi v. Buba (2018) LPELR (CA). The law on the requirement of a party to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof lies on the party seeking for declaration, and is quit heavy which has to be on cogent and credible evidence and not on admission or by default of pleading by the defendant not to talk of reliance on evidence. See BELLO V EWEKA (19801) 1 SC 101, MOTUNWASE V SORUNGBE (1988) 12 SC (Pt.1) 130; (1988) 5, NWLR (Pt.92) 90, DUMEZ NIGERIA LIMITED V NWAKHOBA (2008) 18 NWLR (1119) 361, (2008) LPELR-965 (SC), OGOLO V OGOLO (2006) 5 NWLR (Pt.972) 173. Thus, notwithstanding the fact that the Defendant in this case did not file any defence process and did not call any evidence, it does not translate to automatic judgment in favour of the Claimant. The Claimant must still adduce sufficiently cogent and credible evidence to discharge the onus placed on him.
It is to be remembered that in civil cases, the initial burden is in he who asserts to prove. This means that for the claimant to succeeds in proving his claims he has to make out a prima facie case on the evidence adduced before the issue of a defence on part of the defendant would arise. So, until the claimant adduced credible evidence to establish his case by preponderance of evidence, there will be nothing to defend by the defendant. See sections 131, 133 and 134 of the Evidence Act. ARCHIBONG V ITA (2004) 1 SC 1, AGU V NNDI (2002) 18 NWLR (pt.798) 103, O.A.A.C.G.F.S. V N.A.C.B (1999) 2 NWLR (PT.590) 234.
Generally, for a valid contract of service to exist there must be established offer and unconditional acceptance of offer i.e mutual assent between the parties. See TSOKWA MOTORS LTD & ANR. V UNION BANK OF NIGERIA LIMITED (1996) 10 NWLR (pt.478) 281, (1996) LPELR-3267(SC).
The duty of this court as a trial court in ascertaining the existence of a contract is to analyse the circumstances surrounding the alleged agreement and determine whether the traditional offer and acceptance can be gleaned from the purported agreement. The intention of the parties must be manifest. The existence of mutual assent is what determine right and obligation of parties. This is done by the court evaluating the evidence adduced before it. See SPARKLING BREWERIES LIMITED & ANOR. V UNION BANK OF NIGERIA LIMITED (2001) ALL NLR 575, (2001) LPELR-3109(SC).
The case of the claimant before the court is that there was a contract of service between the claimant and the defendants wherein the claimant supplied ten security guards to provide security at the construction site where the defendant is carrying out construction of houses. According to the witness the defendants were paying the sum of N20,000.00 per security Guard which amount to the sum of N200,000.00 per Month. The defendants were paying the agreed sums through the Bank account of the claimant. Exhibit CW is a copy of the Bank statement of account showing payments from the Month of April 2017 to August 2017.
It is also the evidence of the lone witness of the claimant that the 2nd defendant met him and requested that the number of security personnel be increased by 15, making the total number to 25 security personnel. The witness continued his evidence that the claimant acceded to the oral request of the 2nd defendant and increased the number of security to 25. The security personnel resumed duty at the construction site as from 1/9/17. However, the defendants defaulted in payment of the monthly salary of the 25 security guards, for three Months. The claimant wrote to the defendants for payment but they refused to even reply.
By the decision of the Supreme Court in the case of SHENA SECURITIES LTD V AFROPAK (NIGERIA) LTD & ORS. (2-008) 34 NSCQR Pt.ii, 1287, (2008) LPELR-3052(SC), contract for supply of security guards is a contract of service. The court went on to state that a contract of service can be in writing, oral or by express or by implication.
Vide paragraphs 4, 5, 6, 7, 8, 11, 12 and 13 of the statement of facts, the defendant did not pay a single penny for the services rendered. The unpaid amount for the 3 moths is the sum of N1,500,000.00. The claimant avers that the defendants contracted the claimant to provide security services at the construction site of the defendants at the police estate Buban Saura, Kaduna. The claimant stated that ten of its personnel were deployed to the defendants’ site at Buban Sauran Kaduna. The ten security personnel continued to be on site until sometimes in August 2017, when the 2nd defendant demanded for increase in the number of personnel on site to 25 personnel which demand the claimant agreed to. Following the oral agreement for increase of personnel fifteen additional security personnel were added to the existing tem bringing the total number to 25 on the defendants’ site. It was averred that each of the personnel is entitled to N20,000.00 Monthly. The defendants consistently paid the claimant through its account from April 2017 until August 2017, when the defendants stopped paying it its entitlement. However from 1st September 2017 when the number of security were increase to from ten to twenty five to 30/11/17, the defendant failed to pay the salaries of the security personnel.
By the rules of pleadings, where no statement of defence is filed in answer to the statement of claim, the allegations in the statement of claim are taken as admitted. The natural consequence of failure or default by the defendant to file and serve statement of defence, is that the allegation in the statement of statement of claim stand unchallenged and so long as they disclosed a cause of action, the plaintiff may be entitled to judgment, normally without the need to prove his case by calling evidence. However, this in turn depends on the claim, for equitable and discretionary reliefs as in this case, the claimant succeeds or falls on the strength of his case. Since the main claims of the claimant are declaratory which are discretionary the claimant must succeed by adducing cogent and credible evidence. The law is well settled beyond reproach that a party seeking for declaratory reliefs must establish his claim on the strength of his case. The weakness of the defence or even admission or absence of defence cannot assist a party in proof of declaratory reliefs, entitlement o declaration is based on the evidence adduced before the court. See DANTATA V MOHAMMED (2002) 7 NWLR (PT.664) 176, NWOKIDU V OKARU (2010) 3 NWLR (PT.1181) 362, DUMEZ NIG. LTD V NWAKHOBA (2008) 18 NWLR (PT.1119) 361, EKUNDAYO V BARUWA (1965) 2 NLR 211, ALI UCHA V MARTINS ELECHI (2012) MRSCJ VOL.79 104, the burden of proof in establishing declaratory reliefs to the satisfaction of the court as pointed out earlier in this judgment is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the party fails to establish his entitlement to the declaration by his own evidence. A court does not grant declaration of right either in default or on admission without taking evidence and being satisfied that the evidence led is credible. See MOGO V MBAMALI & ANOR. (1980) 3-4 SC 31, INEC V ATUMA & ORS. (2013) LPELR-20589(SC), ORJI V EMOVO (1991) 1 NWLR (PT.168) 476, OKEDARA V ADEBARA (1994) 6 NWLR (PT.349) 157, ONU V AGU (1996) 5 NWLR (PT.451) 652, BELLO V EWEKA (1981) 1 SC 509.
In proof of the claims before the court a sole witness testified for the claimant. The witness who is the commandant of the claimant stated that upon resumption of office as commandant of Kaduna State he discovered that some personnel of the claimant were on posting to provide security at construction site of the defendants. Consequently he wrote to the defendants requesting payment of monthly entitlement of the personnel on posting which is N20,000.00 per security be paid through the account of the claimant exhibit CW1C1-6, is a copy of the statement of account of the claimant showing payments made by the defendants for the period April 2017 to August 2017, which was the sum of N200,000.00 per Month. The claimant also stated that the 2nd defendant and one Abdullahi came to him to demand for increase of number personnel to be on site by fifteen to make the total number to 25 personnel. According to the witness the request was acceded to. Additional fifteen more personnel were posted to the defendant but the defendant failed or refused to pay for the services from 1st of September to 30th November 2017 which is for period of three months this was despite repeated demands.
It will not be difficult from the evidence adduced by the claimant to conclude that there is a contract of service between the claimant and the defendants for supply of ten security personnel to the site of the defendants from April 2017 to August 2017, this can be gleaned from exhibit CW1C1-6 which is evidence of payment of the remuneration of the ten security personnel for the period covered by the payment.
However, the difficulty is in the area of variation of the contract which the claimant’s witness alleged took place in August. This is because the purported agreement was not reduced into writing. Furthermore, the claimant did not call one Abdullahi who was alleged to have been with 2nd defendant when demand for increase of personnel was made. The claimant has also averred in paragraph 8 that Abullahi Mohammed and John Ikwen Joseph were part of its team of personnel assigned to the defendants’ site as head of the said team and supervised the personnel constantly. The failure of the claimant to call these people as witness to prove the assertion has left this court in doubt as to the veracity of the assertion on variation of the terms of the contract between the claimant and the defendant.
In the circumstances it is only the contract of service for supply of ten security personnel that is established by the claimant. The evidence of CW1 on this was corroborated by exhibit CW1C1-6. Having asserted that the personnel of the claimant continued to serve the defendants for three more months without pay will be taken to mean the ten original personnel since there is no concrete evidence in proof of the additional personnel. In the circumstance the claimant will only be entitled to payment of salaries for ten security personnel for the period of three Months from 1st September 2017 to 30th November 2017. In view of this finding the claimant will be entitled to payment of three Months salaries for ten personnel at N200,000.00 per month as shown by exhibit CW1C1-6. This means that the claimant is only entitled to N600,000.00 (Six Hundred Thousand Naira) only, and not N1,5000,000.00 (One Million Five Hundred Thousand Naira) as claimed.
I awarded lesser amount of money than what was claimed by the claimant, because in law court can award less that what was claimed but cannot grant more than the claim before it. The law is trite where a claimant claims more than what he can prove, he is awarded a lesser amount. See TD V ACB PLC, NWANKWO V NZERIBE (2013) 13 NWLR (PT.890) 422, HASTON NIG. L EKPENYOUNG V NYONG (1975) 2 SC 71, CALEN V UNIJOS (1994) I NWLR (PT.323) 631, MAKANJUOLA V BALOGUN (1989) 3 NWLR (PT.108) 192 KALO V DANIEL KALO (1975) 2 SC 15, OGUNYADE V OSHUNKEYE (2007) 15 NWLR (PT.1057) 218, ATIVIE V KABAL METAL NIG. LTD (2008) 10 NWLR (PT.1095) 399.
From my finding above the claimant was only able to prove its case in respect of ten security personnel posted to serve at the construction site of the defendants. The claim on variation of the original agreement for the supply of additional fifteen security personnel has not been proved by cogent credible and reliable evidence.
On the whole the claimant succeed only to the tune of the sum of N600,000.00 (Six Hundred thousand Naira) being the unpaid salaries of ten security personnel for three Months.
On the whole the defendants are hereby ordered to pay the claimant the sum of N600,000.00 (Six Hundred Thousand Naira) only, being unpaid salaries for three Months for services rendered by ten Security Men to the defendants at their construction site for the period 1st September 2017 to 30th November 2017.
The terms of this judgment shall be complied with within twenty one days from today. Failing which, the judgment sum shall attract 10% interest per annum.
Judgment entered accordingly.