IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA.
DATE: 17th July, 2019
SUIT NO. NICN/YEN/95/2016
JAMES OSUNRO CLAIMANT
1. ENERGY RAY INTEGRATED SERVICES
2. IFEAKACHUKWU CHINEYEMBA DEFENDANTS
Kenneth O. Eke with C.E. Brown for the Claimant.
S. I. Nengia for the Defendants.
The Claimant filed this Complaint on 24th May 2016 against the defendants jointly and severally for the following reliefs:
“1a. A Declaration that the Claimant was an employee and staff member
of the 1st Defendant from September 2008 to September 2015 and who within the catchment period, is entitled to wages, allowances, bonuses and other negotiated benefits including proceeds from Tax and Pensions subscriptions, accruable to an employee thereof.
b. A Declaration that the 2nd Defendant is the Managing Director and Chief Executive Officer of the 1st Defendant, who manages and superintends the management of the affairs of the 1st Defendant as a going concern.
2. An Order against the Defendants for payment to the Claimant the sum of Seven Million, Nine Hundred & Twenty- Five Thousand, One Hundred & Forty Nine Naira Six Kobo (N7,925,149.06) being and representing the following:
a. Unpaid salaries for four months, June to September 2015 @
N200,000.00 = N800,000.00
b. Rig allowances for MLC for eleven days @ N15,000.00 per day =
c. Negotiated bonuses for December 2014 =
d. 5% SPDC training in 2013 -
e. Medical bills at St. Martins Hospital in 2015 =
f. Unremitted Pay As You Earn tax September, 2008 to September
2015 at various rates =
g. Unremitted pension deductions from September 2008 to September
2015 at 7.5% of various salary scales from the Claimant equals to
85 months =
h. Total value of 7.5% contributory pension from Energy ray Integrated Services in favour of Claimant for the period of 85 months of service =
3. Work- end pay-off in favour of the Claimant -
4. Total claim of Seven Million, Nine Hundred & Twenty- Five Thousand, One Hundred & Forty Nine Naira Six Kobo (
N7,925,149.06). The Defendant may pay this amount totaling Seven Million, Nine Hundred & Twenty- Five Thousand, One Hundred & Forty Nine Naira Six Kobo ( N7,925,149.06) to the Claimant’s Legal Practitioner within 14 days at which point this action or proceedings shall terminate.
5. Such further or other Orders as this Honourable court may deem fit to make in the circumstances of this case.”
The Claimant's statement of facts and other accompanying processes dated 18th May 2016 were filed on 24th May 2016 in line with Order 3 Rule 4 (i) of the erstwhile National Industrial Court Rules 2007. The Defendants filed their memorandum of appearance, statement of defence/counter-claim, list of witness and statement on oath of witness vide motion on notice filed on 31st January 2017 and deemed properly filed and served on 8th December 2017. The Claimant filed a Reply to the statement of defence/defence to the counter-claim on 14th August 2017 with an additional written statement on oath by the Claimant filed on 13th April 2018.
Upon conclusion of filing and exchange of pleadings, the matter proceeded to trial on 23rd April 2018. The Claimant (Mr. James Osunro) testified as CW1 and adopted his written statements on oath and tendered exhibits 1a,1b,1c
(which are his qualifying certificates), exhibit 2 (Personnel Identify Card of Energy Ray Integrated Services Limited with the name of Osunro James), exhibit 3 (which is the letter of resignation dated 26th October 2015), exhibits 4 (Salary increase/review dated 1st August 2013), exhibits 5A and 5B (Solicitor’s letters to Managing Director, Energy Ray Integrated Services Limited dated 1st February 2016 and 29th April 2016 respectively), exhibit 5C (Letter of response from Enterprise Solicitors to the Counsel to the Claimant dated 8th February 2016), exhibits 6A and 6B (Solicitor’s letter to Anchor Pension Managers Limited and print out from Anchor Pensions) and exhibits 7A and 7B (solicitor’s letter to Chairman, River State Board of Internal Revenue and Response from Rivers State Internal Revenue Service). CW1 was cross examined by the defence and discharged.
Oguejio for Tochukwu testified as CW2 on the same date and adopted his sworn statement on oath dated 24th May 2016 which was to the effect that he was employed as an NDT Technician by the 1st Defendant in August 2010 and he resigned on 26th October 2015. He stated that the Claimant was employed in September 2008 and the Claimant told him that he was issued an employment letter by the 1st Defendant but he cannot find the letter. He stated also that as staff of the 1st Defendant, the Claimant is entitled to the claims before the court. He was cross examined by the defence and thereafter discharged.
After the Claimant closed his case, the Defendants opened their joint defence on 23rd May 2018, Ugochukwu Chineyemba testified as DW1 on behalf of the defendants by adopting his sworn statement on oath dated 31st January 2017. No document was tendered for the defence and DW1 was cross-examined and discharged.
CASE OF THE CLAIMANT
The Claimant by his statement of facts was employed by the 1st Defendant Company in August 2008 and he was issued a letter of employment which he cannot find. According to the Claimant, he started with a salary of forty thousand naira and upon several promotions and salary increment/review, it progressed to Two hundred thousand naira (
N200,000.00) between 2013 and 2015 when he resigned from the services of the 1st Defendant.
The Claimant stated that while he worked with the 1st Defendant, his salary was being deducted as his pension contribution with IEI Anchor Pension Managers Limited and also PAYE tax was deducted but neither of the two deductions were remitted to the appropriate bodies.
The Claimant also claims that he was entitled to bonuses, allowances and salary arrears while in the employment of the 1st Defendant hence upon his resignation on 26th October 2015, he caused his counsel, Kenneth O. Eke, Esq. to write a demand letter (exhibit 5A) to the 1st Defendant for the total sum of Seven Million, Nine Hundred & Twenty- Five Thousand, One Hundred & Forty Nine Naira Six Kobo (
N7,925,149.06) comprising his arrears of salary, bonuses, allowances, pensions and PAYE deductions (exhibits 6A & B, and 7A & 7B). The 1st Defendant vide exhibit 5C replied the Claimant’s request that the Claimant abandoned his duty post/official responsibilities in August 2015 with valuable properties of the 1st Defendant including the official vehicle and that the demands by the Claimant are not contained in the contract of employment between the 1st Defendant and the claimant. Claimant thereafter filed this suit claiming the sum so stated among other reliefs.
CASE OF THE DEFENDANTS
The case of the Defendants from their joint statement of facts is that the Claimant was an employee of the 1st Defendant who was employed as a driver in 2009 and subsequently trained as equipment lifting instructor and that all trainings leading to certification of the Claimant were initiated by the 1st Defendant who incurred all the expenses and cost of trainings and certification. However, in August 2015 the Claimant abandoned his duty post with valuable properties of the company such as safety overalls, shoes, helmet, hand gloves, staff identification card, equipment lifting training/manual a Toyota Sienna vehicle which was an official car. The Defendants stated further that the 1st Defendant was able to retrieve the vehicle from the Claimant by the aid of the officers of the Divisional Police, Trans Amadi, Port Harcourt and that the 1st Defendant incurred expenses of One Hundred & Eighty-Nine Thousand Seven Hundred & Fifty Naira to repair and refurbish the vehicle.
The Defendants claim that the Claimant abandoned his duty post with a co-staff in August 2015 to establish the same business being done by the 1st Defendant and that the affairs of the 1st Defendant are managed by the Board of Directors and the day to day management is vested in the operations manager, Ugochukwu Chineyemba.
The Defendants further state that the benefits, allowances and bonuses averred by the Claimant do not arise from the contract of employment between the Claimant and the 1st Defendant and that majority of the staff of the 1st Defendant including the Claimant were opposed to the implementation of the contributory pension scheme and sums deducted from Claimant’s salary as tax were remitted to the Rivers State Board of Internal Revenue. The Defendants also contend that the 1st Defendant offset medical bills of the Claimant at St. Martins Hospital.
The Defendants filed a counter-claim along their Defence seeking the sum of One Hundred & Eighty-Nine Thousand Seven Hundred & Fifty Naira (
N189,750.00)as expenses for repairs and refurbishing of the vehicle and also the sum of Four Hundred Thousand Naira ( N400,000.00) as cost of hiring alternative vehicle for the 1st Defendant’s operations for 80 days assessed at Five Thousand Naira ( N5,000.00) per day.
The Defendants also deny owing any sums to the Claimant and that the 2nd Defendant is one of the Board of Directors of the 1st Defendant hence cannot be personally liable to the Claimant. Thus the entire suit of the Claimant against the Defendants be dismissed as lacking in merit.
Defendants filed their final written address on the 29/4/2019 wherein they raised 4 issues for determination thus;
“i. Whether the claimant has shown that he was an employee of the defendant from September, 2008 to September, 2015.
ii. Whether the signing of a document on behalf of a legal entity (1st Defendant) makes the 2nd defendant the Managing Director of the 1st defendant.
iii. Whether the claimant has with credible evidence shown that he is entitled to his monetary claims in this action.
iv. Whether the 2nd defendant is liable to the Claimant in this action.
v. Whether the 1st defendant is entitled to the relief sought in the counterclaim."
Defendants' counsel submitted that the law requires a party who desires the court to make any declaration in his favour to lead credible evidence to prove same. It is the submission of the Defendants that the assertion of the claimant that he was an employee of the defendants from September 2008 to September 2015 which was denied by the defendants was not proved by any credible evidence. Defendant cited the case of A. G. Federation V Ajayi (2000) NWLR (Pt. 682) 509.
Defendants argue on their issue NO. 2 that the mere fact that the 2nd Defendant signed documents on behalf of the 1st defendant does not make him the Managing Director of the 1st Defendant. That the burden of proving this is on the claimant.
In arguing issues 3 and 4, counsel on behalf of the Defendants contends that the Claimant has not proved all the monetary claims because there is no enough documentary evidence to support his claims. Defendants also argued that they are not liable to the claimant's claim.
On issue 5, Defendants vehemently contended that they are entitled to their counter claim and finally urged the court to dismiss the claimant's suit but grant the Defendants' counter claim.
The Claimant’s counsel in his final written address which was adopted on 29/4/2019 raised two issues for determination thus;
“1. Whether Defendants’ deliberate seizure of the Claimant’s salaries for June 2015 to September 2015 plus other negotiated bonuses, allowances and entitlements including refusal to remit deducted sums as taxes and pensions to the relevant authorities without cause does not constitute an unfair labour practice and slavery.
2. Whether upon the preponderance of evidence, the claimant has not proved his claims before the Honourable Court to entitle him to a favourable judgment of the court."
Counsel to the claimant submits that the seizure of the claimant’s salaries and other negotiated bonuses, allowances and entitlements including refusal to remit same to appropriate authorities without justification amounts to unfair labour practice and offends the Labour Act, Personal Income Tax Act and the Pensions Act.
Counsel submits that payment of salaries is a corporate duty on an employer to his employee for services rendered and that there is ample evidence that the claimant worked for the Defendants for a period of June 2014 to October 2015 when he resigned forfeiting his October 2015 salary as one month notice in lieu of notice.
Claimant’s counsel submit that failure to tender the claimant’s letter of employment does not affect his status as an employee of the 1st Defendant for the law is that employment can be oral or implied or expressed, and what is important is that claimant offered services to the Defendant for which he is entitled to compensation by way of salary. He cited the unreported judgment of Hamisu J. delivered on 10th October 2018 in suit No. NICN/YEN/446/2016 between Seth Nwansi V. Plat Geria Co. Ltd of the National Industrial Court Owerri Division and also exhibits 4, 5A, 5B and 5C respectively. He urged the court to resolve reliefs 2, 3 and 4 in favour of the claimant.
Counsel to the claimant submits also that by the provisions of section 5 (2) Labour Act, Cap L1 LFN 2004, an employer is permitted to make deductions from an employee’s salaries at source for certain statutory requirements like tax, pensions and labour union subscriptions and this must be done with the consent of the employee and also remitted to the appropriate authority. Thus payment of tax and pensions are statutory duties on citizens and it may be be impracticable for an employee to decide whether or not to pay. Citing Section 2 (1) (a) of Personal Income Tax Cap P8 LFN 2004 and section 5 (3) (b) of the Labour Act.
He submitted that the Defendants made a feeble attempt at denying the deductions by saying that workers opted out of it. However, there is ample evidence that the defendants deducted various sums of monies from the claimant as tax and that defendants failed to remit the sum of Six Hundred & Forty-Four Thousand Six Hundred and Forty-Nine Naira Sixty kobo (
N644,649.60) to the relevant body. Counsel referred to exhibits 7A and 7B. and concluded that since the person to use the sum is out of service of the 1st defendant, same be refunded to the contributor (the claimant). Counsel urged the court to resolve reliefs 2 and 3 against the Defendants.
Counsel argued further that sums of monies equivalent to 7.5% were deducted from the claimant’s salaries as pension contributions which were to be remitted to an organization and in this case the IEI Anchor Pension Managers Limited of No.10 Evo road GRA, Port Harcourt, Rivers state and vide exhibits 6B, sums deducted as pensions from the claimant’s salaries were never remitted to the pension managers hence the sum of money known as pension which is Six Hundred & Forty-Two Thousand, Seven Hundred & Fifty Naira be refunded by the Defendants to the Claimant.
Claimant’s counsel submitted also that the other claims captured in reliefs 2 (a) – (i) represent ordinary salaries, allowances, bonuses and other employee entitlements are operational in the industry of public service as per collective bargaining. Hence the denial of same by the defendants was just mere traverse and no more as DW1 failed to show evidence to the contrary as regards to the claims. Counsel argued further that the claimant’s severance or work Pay-Off of Four Million Naira (
N4,000,000.00) was not mentioned at all by the Defendants in their defence hence urges the court to make an order granting same.
On issue ii, counsel to the claimant submits that claimant has proved his case on the preponderance of evidence and entitled to a favourable judgment. Counsel argued that the Claimant sued the Defendants jointly and severally with the full knowledge that the 2nd Defendant was at all material times the Managing Director/Chief Executive officer of the 1st defendant but in their defence, the Defendants chose to present DW1 who claimed to be the Chief Operating Officer of the 1st Defendant. The DW1 in his statement on oath claimed to be Operations Manager. He referred the court to paragraph 1 of the statement on oath of DW1.
Counsel submits that DW1 in whatever capacity does not know anything regarding the antecedents of this case but that he is a younger brother to the 2nd Defendant who in his effrontery chose not to appear in court and that the courts have a duty to provide an enabling environment for parties as stated in the case of Inakoju V. Adeleke (2007) 2 MJSC. Thus it is the duty of the Defendant to attend court and the court does not indulge a non-challant defendant who is desperate to be absolved of liability. Counsel cited the case of Mohammed V. Tersuo (2001) FWLR (pt.69) 1404 ratio 1.
Counsel argued also that the Defendants chose to present DW1 who does not know if the 1st Defendant made any deductions as taxes or pensions from the Claimant’s salaries but claimed that workers did not agree on any tax or pension deductions though DW1 failed to present any evidence of collective bargaining in proof thereof. Counsel argued further that DW1 who claimed to be the Chief Operating Officer was not a signatory to Exhibit 4 and that DW1 claimed that the 2nd defendant never performed administrative roles in the 1st Defendant’s company however, the 2nd Defendant signed exhibits 4.
Counsel to the claimant submitted that DW1 in his continuous contradictions stated in paragraph 22 of his deposition that “all sums deducted as tax from the claimant’s salary have been remitted to the Rivers State Board of Internal Revenue”. Counsel argued also that in paragraph 27 of the Statement on oath, DW1 stated that the 1st Defendant has no form of contract of employment with the Claimant from whose salary deductions were made. That paragraphs 12 and 13 of the statement on oath admit existence of a contract of employment. Counsel referred the court to Exhibits 6A, 6B, 7A, 7B and testimony of DW1 under cross examination on 23rd April 2018.
Counsel went further to argue that DW1 mentioned two documents in paragraphs 11 and 25 but never frontloaded nor tendered same and that DW1 purported to file a counter claim but never attempted to prove same hence the counter-claim is deemed abandoned. He relied on the cases of Usman V. Garke (2003) 14 NWLR (pt.840) 261 ratio 7 and Nsefik & Ors. V. Muna & Ors (2013) 12 (pt.1) MSJC 147 ratio 4 paras F-G where the courts held that a counter-claim not proved nor established should be dismissed as it has been abandoned.
On the whole counsel submits that seizure of the Claimant’s salaries and other negotiated bonuses, allowances and entitlements including refusal to remit sums deducted as taxes and pensions without cause is an unfair labour practice and slavery. Counsel relied on Sasegbon’s Laws of Nigeria, 1st edition 2005, vol.16 page 92 item 99 that pension, salaries and other entitlements are right which cannot be unilaterally taken away by an employer.
Counsel submitted also that the Claimant has proved his claims before the court as the defence of the Defendants is marred with contradictions hence the case should be resolved in favour of the Claimant. He relied on the case of Oshiomole V. Airhiavbere (2013) 1 MSJC (pt.1) 1 at 22-23 paras D-C wherein the Supreme Court held that “the long laid down position of the law is that party should be consistent in stating his case and consistent in proving it. That is the importance of pleading.”
Counsel also submits that where there are two contradictory pieces of evidence, the judicial attitude is to reject the two pieces of contradictory evidence as unreliable and of no probative value. Citing the case of Yusuf V. Obasanjo (2006) ALL FWLR (pt.294) 387 at 483 paras D-E
Counsel submits that in the case of Chami V.UBA Plc (2010) 2 MSJC 119 at 137 paras B-C, it was held that where a party offers no evidence in defense of the case of the plaintiff, the burden placed on the plaintiff is minimal, since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case. Counsel to the Claimant therefore urges the court to enter judgment in favour of the Claimant in line with his reliefs.
I have considered the evidence adduced including the exhibits admitted and perused the arguments and submissions of the learned counsel to the parties. The main issue to be determined by the court from the issues distilled by the respective counsel in my view is whether from the totality of the evidence before the court, the claimant is entitled to judgment in this suit.
As shown from the processes filed and the evidence of the parties, the contention is that Claimant is alleging that as an employee of the 1st defendant from August 2008 to October 2015, he was entitled to arrears of salaries, bonuses, allowances, sums of monies deducted as taxes and pensions from his salary and also severance package upon resignation from the services of the 1st Defendant on 26th October 2015 vide exhibit 3.
The Defendants on the other hand are contending that though the Claimant was employed by the 1st Defendant in 2009 and not 2008, all the bonuses, allowances and severance pay are not part of the contract of employment and that the Defendants are not owing the Claimant arrears of salaries and sums deducted from his salaries as tax were remitted to the Rivers State Board of Internal Revenue Service and that the Claimant absconded from his duty post with properties of the 1st Defendant. The Defendants further deny liability of the 2nd Defendant personally to the claimant as the 2nd Defendant was just one of the directors of the 1st Defendant and was never involved in the day to day running of the affairs of the 1st Defendant.
In my view, the status of the Claimant in this suit is not in dispute even though there is absence of a contract of employment. The Claimant stated in paragraph 4 of his deposition that he was employed by the 1st Defendant in 2008. This position was to some extent admitted by DW1 in paragraph 3 of his deposition that Claimant was an employee of the 1st Defendant though from 2009. It is trite law that what is admitted needs no further proof. See the case of Jolasun V. Bamgboye (2010) 44 NSCQR 94 @ 98 para 5 and Ntuks V. N.P.A (2007) 31 NSCQR 430 @ 435. Also vide exhibit 4A which is titled salary increase/review on a letter head paper of the 1st Defendant dated 1st August 2013 and signed by the 2nd Defendant, and exhibit 4B which is titled, Letter- Salary and Allowances Increment/Review on a letter head paper of the 1st Defendant dated 27th March 2015 and signed by one Ezenwora Esther from the Human Resources Department of the 1st Defendant, it can be inferred or implied that there existed a master-servant relationship between the parties and I so hold.
I must emphasize here that although contract of employment can be oral, implied or expressed, but it is equally important to have a written contract of service embodying the terms and conditions of service as this forms the bedrock of a party’s case in a contract of employment. Section 7 of the Labour Act Cap L1 LFN 2004 stipulates that every employer is mandated to provide the worker within three months of commencing work a written statement specifying terms and conditions of service.
Having established that a master-servant relationship exists between the Claimant and the 1st defendant, the next issue to resolve is if the 2nd Defendant can be personally liable for the acts of the 1st Defendant. By the averments in the deposition of the Claimant in paragraph 2, he admitted that the 1st Defendant is a Limited Liability Company registered under the Companies and Allied Matters Act. Therefore, the 1st Defendant is a separate entity that can sue and be sued hence the 2nd Defendant being the Managing Director of the 1st Defendant cannot be held personally liable for acting on behalf of the 1st Defendant. Hence in the case of Osigwe V. PSPL Ltd (2009) 37 NSCQR (pt.II) 841 at 846 and 848-849 paras 5 and 16, where an agent acts on behalf of a known and disclosed principal, he incurs no personal liability. The 2nd Defendant is the Managing Director of the 1st Defendant and since the 1st Defendant is known and has been sued, the 2nd Defendant cannot be held personally liable for acts and liabilities of the 1st Defendant.
On the issue of unremitted pensions and taxes to the relevant authorities, the Claimant’s counsel has argued that since the sums of monies were deducted from the Claimant’s salaries and by exhibits 6A & B and 7A & B respectively, the said sums were not remitted to the appropriate authorities, they be refunded to the Claimant who is no longer in the employment of the 1st Defendant. Section 9 (1) a & c of the Pensions Reform Act 2004 provides that an employee under the public and private sector is required to contribute a minimum of 7.5% of the salary and the employer contributes 7.5% as well to make it 15% monthly. Where such deductions are made, they are to be remitted to the relevant authorities. The Claimant in this suit has argued that 7.5% of his salaries were deducted in the course of his employment with the 1st Defendant but the deductions were never remitted to the relevant authority.
Counsel to the Claimant tendered exhibits 6A and 6B in support thereof. This assertion was denied by the Defendants and in response the Defendants vide DW1 claimed that the staff of the 1st Defendant rejected deductions being made on their wages and in another breath, DW1 stated in evidence that the sums deducted from Claimant’s salaries varied. See paragraphs 15 and 16 of the Statement on Oath of DW1.
This was the same argument by the Claimant as regards PAYE but the Defendants through DW1 stated that taxes deducted from Claimant’s salaries were remitted to Rivers state Government. Page 2 of exhibit 4 states that PAYE tax and Pension Contribution of 7.5% of basic salary will be made from the Claimant’s monthly salary with respect to the Labour Law and Government Tax Policy but there is no other documentary evidence to buttress the fact that sums of monies were actually deducted as pensions from the Claimant’s salaries and not remitted. Exhibit 7B which is a reply from the State Internal Revenue Service, stated therein that the 1st Defendant has not been consistent in remitting tax deducted from staff emoluments so they cannot confirm if tax deducted in respect of the Claimant were remitted to Rivers State Government.
Even though pension is for the benefit of an employee, but in this suit there is no other documentary evidence to show that such monies were actually deducted.
In my view therefore, both the taxes and pensions if so deducted are to be remitted to the relevant authorities and not to the Claimant.
Regarding the issue of unpaid salaries, bonuses, allowances and severance, the Claimant claims for unpaid salaries for the period of June 2015- September 2015, Rig allowance, negotiated bonuses, 5% SPDC training in 2013, medical bills at St. Martins Hospital in 2015 and work end pay-off. These heads of claims and allowances were equally denied by the Defendants. Even though mere denial by the Defendants is not sufficient, the claims of the Claimant being monetary sums before the court are special claims and they must be specially pleaded and sufficiently proved. In the case of Ajigbotosho V. R. Const. Co. Ltd (2018)281 LRCN 57, the Supreme Court held that for a claim in special damages to succeed, it must be specifically pleaded and strictly proved in evidence. Thus claims for special damages based on mere estimates or estimation of the Plaintiff (Claimant) is not precise but guess work and a court cannot issue an order on mere conjecture.
To prove an entitlement, an employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 by KANYIP J. and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd  60 NLLR (Pt. 208) 39.
The law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd  LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr. Aloysius Uzowuaka & ors  LPELR-515(SC);  13 NWLR (Pt. 1159) 445 SC.
The Claimant made an effort by calling CW2 who was also a staff of the 1st defendant before he resigned his appointment on 26th October 2015. The deposition of CW2 is to the effect that the Claimant was employed in 2008 and is being owed by the 1st Defendant. CW2 stated during cross examination that the Claimant told him that he was issued an employment letter by the 1st Defendant but he has misplaced it.
There is nothing before the court to know when the Claimant was last paid, how much he was being paid, how much was being deducted by the 1st Defendant and to show the number of times the Claimant went offshore or onshore or on what basis his severance and 13th month salary were to be paid. Failure to provide evidence in respect of these specific heads will only leave the court to speculate and that is not the hallmark of a judicial order. In the case of I.H.A.B.U.H.M.B V. Anyip (2011) 202 LRCN 51 at 55, the Supreme Court held that “the law is trite that unless pleaded and strictly proved, the court is not obliged to make any awards in that regard for special damages”. See also the cases of Union Bank of Nigeria Plc V. Alhaji Adams Ajabule& Anor (2011) LPER- SC 221/2005 or (2011) 18 NWLR (pt.1278) 152 and Osuji V. Isiocha (1989) 3 NWLR (pt.111) 623.
Even though a contractual relationship of master and servant exists between the Claimant and the 1st Defendant, the burden rests on the Claimant who is claiming unpaid salaries, bonuses, allowances and severance to call evidence in support of this special head of claims. The Supreme Court has in the case of A.I.C. Ltd V. NNPC (2005) NWLR (pt.937) 60 held that a plaintiff (claimant) must succeed on the strength of his case and not on the weakness of the defence especially in a claim of this nature.
The Defendants in their joint Defence filed a counter claim against the claimant for sums of monies amounting to Five Hundred & Eighty-Nine Thousand, Seven Hundred & Fifty Naira (
N589,750.00) as cost of repairing vehicle No. KJA 950 DJ and cost of hiring alternative vehicle for the period the Claimant was in possession of the official vehicle of the 1st Defendant. The Defendants however did not lead evidence in proof of any of this sum either in their deposition or oral evidence or documentary evidence. It is trite law that where no evidence is called in respect of a counter claim, it is deemed abandoned as you cannot put something on nothing and expect it to stand. A counter claim is a separate action and the burden of proof lies on the counterclaimant. See the case of Jokas International Limited V. Union Bank of Nigeria Plc (2018) LPELR 43645. The counterclaim having been abandoned is hereby dismissed.
In the light of the forgoing, I find and hold that the Claimant has failed to prove his claims of unpaid salaries, bonuses, allowances and severance against the Defendants in this suit and cannot succeed in his claim before the court. Since the Claimant failed to tender documentary evidence to show how he arrived at the alleged deductions and entitlements, the court cannot speculate on mere estimate thus the Claimant has not proved his case on the preponderance of evidence as required by section 131(1) and (2) of the Evidence Act 2011 hence his claims contained in the statement of facts fail and are accordingly dismissed.
Judgment is entered accordingly.
HON. JUSTICE S. H. DANJIDDA