IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 4TH DAY OF JULY, 2019
SUIT NO: NICN/MKD/38/2017
UGESE JOHN AHORGA CLAIMANT
1. STATE UNIVERSAL BASIC EDUCATION
BOARD, (SUBEB) MAKURDI, BENUE STATE
2. USHONGO LOCAL GOVT. AREA
3. ATTORNEY- GENERAL & …DEFENDANTS
COMMISSSIONER FOR JUSTICE,
4. LOCAL GOVT. PENSION BOARD, MAKURDI,
J.O. Ekaaunde for the claimant
M.A. Agber (DPRS) with E.T. Nyityo (SSC) Benue State Ministry of Justice for the Defendants.
By an amended Complaint with other accompanying originating processes dated and filed on the 15th November 2018, the Claimant seeks against the Defendants the following reliefs:
"a. A declaration that the removal of Claimant’s name from the payroll of the 1st and 2nd Defendants from the months of June, July, August, September, October, November and December 2015 is illegal, null and void.
b. An order of court directing the 1st Defendant to compute Claimant’s salaries, allowances and other emoluments due and owed him while he was in active service as Chief Assistant Education Officer with respect to the months of June, July, August, September, October, November and December 2015 and pay to Claimant.
c. An order of court directing the 4th Defendant to pay the Claimant his computed retirement benefits of N4,308,002.00 (Four Million, Three Hundred & Eight Thousand, Two Kobo) only as gratuity and N1,159,846.00 (One Million, One Hundred & Fifty- Nine Thousand, eight Hundred & Forty- Six Naira) only as pension respectively.
d. General damages of N2,000,000.00 (Two Million Naira) only for the untold hardship cause to the Claimant and his family.
e. Such other orders as this Honourable Court may deem fit to make in the circumstances of this case."
The Claimants had earlier filed a complaint on 26th May 2017 against the 1st -3rd Defendants for illegally withholding his salaries and financial benefits as Chief Assistant Education Officer spanning a period of seven months, from June to December 2015. However, that complaint was amended on 10th December 2018 to join the 4th Defendant and incorporate additional reliefs.
The Defendants only filed a memorandum of conditional appearance on 7th June 2017 but did not join issues with the Claimants by filing their statement of defence despite several adjournments.
On the 5th June 2018 when the matter was set down for hearing before Hon. Justice P.O. Lifu, counsel to the Defendants, M.A. Agber, (Learned DPRS) informed the court that he was yet to be briefed by the Defendants to enable him file a defence on their behalf. The court granted the Defendants an adjournment with cost of N5, 000.00.(Five Thousand Naira)only. On 10th December 2018, when the matter came up before the present Coram, Defendants’ counsel was not in court. On 20th February 2019, the matter came up for hearing and the Defendants still had not filed their defence and the Claimant upon an application was ordered to open his case.
The Claimant as CW1 adopted his statement on oath dated 30th May 2017 and tendered all the documents contained in the list of documents in evidence. Counsel to the Defendants did not object the admissibility of the documents except the document dated 28th November 2016 on ground that it is a public document that must be certified. The Court however over ruled the objection and admitted the said document as it is relevant to the matter.
The exhibits admitted are as follows;
Letter of Appointment dated 12/1/2004- Exhibit UJA1. Confirmation of Appointment-Exhibit UJA2. Letter of last Promotion- Exhibit UJA3. Employee’s Service Record- Exhibit UJA4. Letter of Complaint dated 25/9/2016- Exhibit UJA5. Solicitor’s letter dated 24/2/2017- Exhibit UJA6. Approval of Statutory Retirement dated 7/4/2016- Exhibit UJA7. Re: Computation of Retirement Benefits dated 28/11/2016- Exhibit UJA8.
Thereafter, Defendants’ Counsel informed the court that the Defendants do not intend to file any defence or call any witness as the Defendants chose to swim and sink with the Claimant hence the Defendants’ counsel asked for a date for adoption of their final written addresses.
CASE OF THE CLAIMANT
The Claimant’s case as contained in his statement of facts is that he was employed by the Defendants as a primary school teacher in 1985 and posted to serve at Ushongo Local Government Area. Claimant stated that he continued to work as a teacher and rose to the position of Chief Assistant Education Officer in 2009. However his name was wrongly removed from the payroll in June, July, August, September, October, November and December 2015 while he was in active service.
The Claimant stated that he retired in April 2016 upon the attainment of the statutory age but his computed retirement benefits have not been paid by the Defendants.
The Claimant therefore instituted this suit for payment of his seven months’ salary from June to December 2015 when his name was removed from the payroll amounting to N1,295.000.00 (One Million Two Hundred & Ninety- Five Thousand Naira)only, and his retirement benefits computed by the Defendants amounting to N5,467,848.80 (Five Million, Four Hundred & Sixty- Seven Thousand, Eight Hundred & Forty- Eight Naira Eighty Kobo)only.
Claimant under cross-examination said that he retired as Chief Education Officer on Grade Level 14. That Exhibit UJA8 was addressed to the Permanent Secretary Local Government Pension Board. That he was being paid salary through the Bank but there was no document to show how much salary the Defendants are owing him.
The Defendants’ final written address was adopted by counsel on 10th April 2019 and a lone issue for determination was raised thus;
"Whether from the evidence before the court, the Claimant has proved his case to be entitled to judgment."
Counsel submits that this issue be answered in the negative as it is trite law that anyone who desires any court to give judgment as to any legal rights or liability is dependent on the existence of facts which he asserts shall prove that those facts exist. Counsel referred to section 131 (1) of the Evidence Act 2011 and the cases of Elias V. Omo- Bare (1982) 5 SC 2 and Sokwo V. Kpongbo (2008) 7 NWLR (Part. 1086) 342.
Counsel argues that the Claimant having asserted that he is entitled to be paid various sums of monies by the Defendants, it behooves on the Claimant to adduce credible evidence that the Defendants are indeed liable to make such payments to him.
Counsel submits that in discharging this responsibility, the Claimant must rely on the strength of his case by pleading relevant facts and adducing credible evidence. Counsel cited the case of Alhaji Abatcha Mohammed Kolo V. Alhaji Mohammed Lawan (2018) 280 LRCN 1 at 21.
Counsel submits that Claimant in paragraphs 8 and 9 of his statement of facts, and paragraphs 3 and 4 of his deposition of 15th November 2018 urged the court to enter judgment in his favour in the sum of N1,295,000.00(One Million, Two Hundred and Ninety Five Thousand Naira)only, as his salary for the months of June – December 2015 but did not tender any payroll for those months to show he was not paid. Secondly, while under cross examination, the Claimant admitted that he used to receive his salary via the bank but never disclosed the name of the bank, how much he was taking as salary or tender any document showing the salary or showing that he was not paid.
Counsel submits that the claim for N4,308,000.00(Four Million, Three Hundred and Eight Thousand Naira)only, and N1,159,846.00(One Million, One Hundred And Fifty Nine Thousand, Eight Hundred And Forty Six Naira)only, as gratuity and pension respectively cannot succeed as the Claimant is basing his claim on exhibit UJA8 (RE- Submission of Retirement Benefits). Counsel argues that the said exhibit UJA8 is a public document that emanated from the office of the Auditor- General of Local Govt. Pension Board, Makurdi to the Permanent Secretary Local Govt. Pension Board thus it is only a certified true copy of same that can be admissible as provided under sections 104 and 105 of the Evidence Act. Counsel referred the court to the cases of Bisichi Tin Company Ltd. V. Commissioner of Police (1962) All NLR 459, Ude V. Osuji (1990) 5 NWLR (pt. 151), Araka V. Egbue (2003) 17 NWLR (Part. 848) 1 at 6 and Hassan V. EFCC (2014) 1 NWLR (Part.1498) 72.
Counsel urged the court to expunged exhibit UJA8 for not passing this test of certification and dismiss the entire claims.
Counsel on behalf of the Claimant adopted his final written address on 10th April 2019 and raised a single issue for determination thus;
"Whether the Claimant has proved his case against the Defendants to be entitled to the reliefs sought."
Counsel to the claimant urged the court to answer the above issue in the affirmative and submits that it is trite law that he who asserts has the onus of proof vide section 131 (1) of the evidence Act 2011 and in civil matters the standard of proof is on balance of probabilities as held in the case of Osuji V. Ekeocha (2009) All FWLR (Part.490) 641 at 643. Counsel posits that where Defendant does not file any defence to the Claimant’s claim as in this instant suit, only minimal proof is required of the Claimant to prove his case.
Counsel submits that from the unchallenged evidence adduced by the Claimant, it is clear that the Claimant has established his case to be entitled to the reliefs claimed. Counsel submits further that where evidence adduced by a party is unchallenged, uncontested or uncontroverted, judgment should be given to such a party and this was the decision of the Supreme Court in the case of Amasike V. Registrar- General, Corporate Affairs Commission (2010) All FWLR (Part. 541) 1406 at 1469.
Counsel submits that where a Defendants refuses to give evidence in their defence, they are presumed to have accepted the case of the Claimant hook, line and sinker. Counsel referred the court to the Court of Appeal case of Monkom V. Odili (2010) All FWLR (Part. 536) 542 at 565 wherein the principle was laid down thus;
The effect of a party’s failure to call evidence in defence of the claim against him at the trial is that he is presumed to have accepted the evidence adduced against him by the other party. In the instant case, the legal effect of the Appellants’ failure to call evidence in defence of the claim against them at the trial was that they were assumed to have accepted the evidence adduced by the respondent in support of his claim.
Counsel contends that during trial the Claimant testified as CW1 and tendered 8 documents as exhibits and the Defendants objected to only exhibit UJA8 titled “Re- Submission of Retirement of Benefits” in respect of the Claimant dated 28th November 2016 on grounds of certification, it being a public document but the objection was over ruled by the court and admitted on ground of relevance.
Counsel submits that it is trite law that where a document is tendered and admitted in evidence, it can be acted upon by the court as held in the cases of Obi V. Nwagwu (2017) LPELR- 43281 (CA) 31-32 and Obisi V. Chief of Naval Staff (2004) 11 NWLR (Part. 885) 482.
Counsel submits that the Defence counsel alleged during cross examination that exhibit UJA8 was obtained by fraud since same was not certified and this is allegation of crime which, by section 135 (1) of the evidence Act 2011 must be proved beyond reasonable doubt. According to counsel, the defence failed to prove beyond reasonable doubt how exhibit UJA8 was obtained by fraud by the Claimant.
Counsel submits that the mode of obtaining evidence is no longer of the moment, as what governs admissibility of document is its relevance to the case. More so the Claimant stated during cross examination as regards exhibit UJA8 that “It was given to me when I was retiring. All of us who retired were given the letter”. Counsel therefore urged the court not to expunge exhibit UJA8 as the response of the Claimant as regards exhibit UJA8 is unambiguous.
Counsel contends that the issue raised by the defence as to the failure of the Claimant to tender his statement of account goes to no issue as the Defendants did not join issues on exhibits UJA5 and UJA6 which are letters of complaint from the Claimant. There was no response in rebuttal of the said exhibits or explanations thereof. Therefore, where Claimant’s pleadings are not challenged by way of a statement of defence, the said averments are deemed admitted thus in this case the defendants failed to file a defence and rested their case on that of the Claimant. It then means that the Defendants have admitted the claims and reliefs of the Claimant.
Counsel submits that where there is a wrong, there must be a remedy and general damages are presumed by law in every violation of a legal right as held in the case of Eseigbe V. Agholor (1993) 9 NWLR (Part. 316) 128 at 145. General damages is a loss which flows naturally from the Defendants’ act and the quantum need not be pleaded or proved as it is presumed by law. Therefore, the acts of the Defendants amounts to violation of the Claimant’s right to payment of owed salaries as well as pension and gratuity hence the Claimant is entitled to damages.
Counsel urged the court to grant the reliefs of the Claimant as captured in paragraph 9 of the amended statement of facts dated and filed on the 15th of November, 2018 and deemed as properly filed and served on 10th December 2018 and paragraphs 11 and 16 (b) of the amended statement of facts as the Claimant has satisfactorily proved his case.
I have considered the processes filed in this case, the evidence adduced, Exhibits admitted and the submission of the counsel to the parties and I am of the opinion that the issue for determination in this case is whether the Claimant has proved his case to be entitled to the reliefs claimed?
In considering this, It should be noted that the claim of the Claimant is that he has been removed from the payroll of the defendants and the salaries due to him for the months of June- December 2015 while he was serving as Chief Assistant Education Officer amounting to N1, 295.000.00(One Million, Two Hundred and Ninety Thousand Naira) only, was not paid to him and his gratuity and pension totaling N5, 467,848.80 upon his retirement in April 2016 was also not paid to him by the Defendants.
The Claimant in his bid to prove his claim testified as CW1 that he was employed by the Defendants as a primary school teacher in 1985 and posted to serve at Ushongo Local Government Area. He stated that he continued to work as a teacher and rose to the position of Chief Assistant Education Officer in 2009. However his name was wrongly removed from the payroll in June, July, August, September, October, November and December 2015 while he was in active service.
The Claimant also stated that he retired in April 2016 upon the attainment of the statutory age of retirement but his computed retirement benefits have not been paid by the Defendants.
Claimant tendered exhibit UJA7 (Letter of Approval of Statutory Retirement) dated 7th April 2016 to show that between the months of June- December 2015 he was still in the employment of the Defendants when his name was removed from the payroll hence he, personally and via counsel wrote letters of complaints to the 1st and 2nd Defendants. See exhibits UJA5 and UJA6 which were received and stamped by the 1st and 2nd Defendants.
Interestingly, the Defendants did not file their pleadings to rebut or challenge these claims or give particulars of fraud in obtaining exhibit UJA8 and did not also call evidence but informed the court during trial that they rested their case on that of the Claimant and are prepared to swim or sink with the Claimant.
I wish to state that although the defendants did not file a defence to the Claimant’s claim but the Claimant will only succeed on the strength of his own case not on the weakness of the defence. But where the case of the defence supports the claim of the claimant, then Claimant is entitled to rely on the supportive evidence of the defendant. See Akinola V Oluwo (1962) 1 S.C.N.L.R. 352. So also where the defendant does not call evidence at trial, the onus of prove on the Claimant will be discharged on a minimal of proof. See Ajidahun V Ajidahun (2000) NWLR (Part. 654) 605.
It is settled principle of law that pleadings are the foundations upon which civil cases are adjudicated. See Tofi V Chen (2011) LPELR 4552(CA)
The Defendants in this suit failed to join issues by way of pleadings even upon several opportunities given and did not also adduce evidence in denial of the Claimant’s claim. In the case of Esoho V. Asuquo (2007) All FWLR (Part. 359) 1355, the court held that it is the responsibility of the Defendant to join issues with those aspects of the plaintiff’s pleadings he disputes or considers that Plaintiff ought to establish. Where the Defendant declines to do so and does not join issues on such matters, the facts so pleaded would be deemed to have been admitted.
Also in Malie V. Abubakar (2007) All FWLR (Part. 360), it was held that, where the Defendant fails to file a defence, judgment maybe entered against the Defendant in favour of Plaintiff on the basis of the averment in the statement of claim as such is deemed not denied. Thus where the Defendant fails to adduce evidence in denial of averments in Plaintiff’s claim, such a defendant becomes vulnerable to the reliefs sought. See the case of Ume & Ors. V. Ibe (2016) LPELR-40080 (CA).
Furthermore, a court is only bound to decide the case as formulated on the pleadings of the parties and From the foregoing, it can be seen that the failure of the Defendants to file their statement of defence and join issues with the Claimant and call witnesses leaves the court with only powers to enter into enquiry or evaluate evidence within the pleadings of the Claimant and is robbed of the jurisdiction to adjudicate on matters not pleaded. See Remi V Sunday (1999) LPELR 6501(CA)
Where evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the court should accord credibility to such evidence. See the case of Gana V. FRN (2018) LPELR-44344 (SC).
In the instant case, the Claimant has by pleadings, evidence on oath and exhibits UJA5 and UJA6 (Letters of complaint of wrongful removal of his name from Ushongo LGEA payroll from; June, July, August, September, October, November to December 2015), and UJA8 shown a consistent claim of salaries between June- December 2015 while in service of the Defendants, and gratuity and pensions owed him upon his retirement in 2016.
Therefore, in the absence of any evidence to the contrary, I hereby find that the Claimant has made out a case to be entitled to the reliefs of this Honourable Court against the Defendants and I order as follows;
That the removal of Claimant’s name from the payroll of the 1st and 2nd Defendants from the months of June, July, August, September, October, November and December 2015 while he was serving is illegal and unlawful.
That the 1st Defendant is ordered to compute and pay to the Claimant’s salaries, allowances and other emoluments due and owed him while he was in active service as Chief Assistant Education Officer with respect to the months of June, July, August, September, October, November and December 2015.
That the 4th Defendant is ordered to pay to the Claimant his computed retirement benefits of N4, 308,002.00 (Four Million, Three Hundred & Eight Thousand, Two Naira) only as gratuity and N1, 159,846.00 (One Million, One Hundred & Fifty- Nine Thousand, eight Hundred & Forty- Six Naira) only as pension respectively as contained in exhibit UJA8 within 30 days from the date of the judgment, failing which it shall attract 10% interest per annum until the judgment sum is fully liquidated.
Judgment is entered accordingly. I make no Order as to cost.
HON. JUSTICE S. H. DANJIDDA