IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
18TH DAY OF AUGUST 2022 SUIT NO. NICN/CA/11/2018
BETWEEN:
1. Mr. Godwin Ofem
2. Mr. Okpo Etim
3. Mr. Emmanuel Amodu
4. Mr. Martins Ofido claimants
5. Mr. Ubana Obetan
(For themselves and as representing other
25 workers of Earth Summit Limited)
AND
Earth Summit Limited ……………………………………………………………………….….. defendant
JUDGMENT:
1. Vide a general form of complaint dated 9/3/2018 filed on the same date, the claimant prays the court for:
1. An order directing the defendant to pay to the claimants the sum of N3,668,460.00 (Three Million Six Hundred and Sixty Eight Thousand Four Hundred and Sixty Naira) being their terminal benefit.
2. Payment of damages in the sum of N5,000,000.00 (Five Million Naira)
3. Cost of litigation N200,000.00 (Two Hundred Thousand Naira).
2. Upon being served with the originating processes commencing this suit, the defendant on 20/3/2018 filed memorandum of appearance. This was followed by a notice of preliminary objection dated 3/6/2019. The notice of preliminary objection was argued on 29/10/2019. Thereafter, the case was adjourned to for ruing. The ruling on the preliminary objection was delivered on 19/3/2020, wherein the preliminary objection was dismissed. Since the delivery of the ruling, the defendant decided to abstain from appearing in this matter. The defendant also failed to file defence to the claim of the claimants.
3. The 1st claimant testified as CW1 in proof of the claim of the claimants. CW1 after identifying his witness statement on oath adopted same as his evidence in proof of the case of the claimants.
4. The claimants instituted this action for themselves and on behalf of 25 other former staffs of the Earth Summit Nigeria Ltd. The claimants aver that they worked for the defendant as security staff until they were laid off on 6/4/2017. The claimants also stated that they were engaged without issuance of individual appointment letters and thy were deployed to guard the facilities of Shorelines Logistics Nigeria Limited, Marina Road, Calabar, under a security contract between the defendant and the Shoreline Logistics Nigeria Limited, an oil serving company.
5. According to the defendant every month the defendant sends a security service bill to Shoreline Logistics Nigeria Limited from which the claimants are paid. The bill is normally accompanied with a payment voucher showing names of the claimants and their entitlements. Exhibit C1, is a copy of the security service bill for March, 2017.
6. It is the case of the claimants that Shoreline Logistics Nigeria Limited has paid the defendant all monies meant for the claimants up to the Month of March 2017, including the sum of N1,163,622.00 (One Million One Hundred and Sixty three Thousand and Six Hundred and Twenty Two Naira) being medical allowance for the 1st Quarter of 1017 (January – March 2017).
7. It is also the case of the claimants that on 16/3/2017, Shoreline Logistics Nigeria Limited gave notice of termination of security service to the defendant with effect from 1/4/2017. See exhibit C3. Following exhibit C3, the defendant verbally laid off the claimants on 6/4/2017 without payment of their March 2017 entitlements. The claimants were stopped at the gate of Shoreline Logistics Nigeria Limited from entry and were told to leave and they returned to their homes and they complied. Thereafter, the claimants went to the defendant’s office in Calabar severally to demand for their entitlements orally, but all to no avail.
8. Due to the refusal of the defendant to pay the claimants their terminal benefits they wrote letter of demand, but the defendant through its counsel stated that the claimants are not entitled to their demand. See exhibits C4 and C9.
THE SUBMISSION OF THE CLAIMANTS.
9. I. I. Ikoi, Esq; franked the claimants’ final written address wherein twin issues were formulated for determination. They are:-
1. Whether the claimants have proved their case to be entitled to the reliefs sought.
2. Whether by his inability to defend the suit the defendant has admitted his liability to the claimants.
ARGUMENT:
10. Issue 1, Whether the claimants have proved their case to be entitled to the reliefs sought. Counsel answered the issue 1 in the positive. Counsel contended that the claimants have unassailably proved their case by the required standard of proof in civil cases and thus entitled to the reliefs claimed in their statement of facts. Counsel went on to argue that in civil cases the burden of proof is on preponderance of evidence on balance of probability.
11. It is the submission of counsel while relying on the case of Mini Lodge Ltd V Ngei (2010) 41 NSCQR (Pt.i) 1 @ 8, that whoever desire any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. Counsel posited that the claimants claim is based on pleading contained in their statement of facts and witness statement on oath all filed on 9/3/2018. The claim of the claimants is that they were entitled to their March 2017 salary and six days prorated salary for the month of April 2017, having worked for the defendant up to 6/4/2017, housing allowance, transport allowance, meal, utility pension and medical as clearly shown in the computation attached to the security service bill exhibit C1 and computation of entitlements exhibit C12. It is submitted though the claimants have no letter of appointments from the defendant, exhibits C1 and C12 constitute their contract since it has been sufficiently pleaded that the defendant has been paying them from the computation as their entitlements. To support this submission counsel relied on the case of Isheno V Julius Berger Nig. Plc (2012) 2 NILR 127 @ 149, where it was held that: a court of law will not find it difficult grant a relief based on the labour agreement, if the plaintiff pleads it.
12. According to counsel contract can be established by conduct of parties, and not necessarily through express contract. Counsel refers to section 20(1) of Labour Act and submitted that the law admit of implied contract of employment, as is the case in this case.
13. It is submitted that having establish that there is contract of employment relationship between the claimants and the defendant, the defendant is liable to pay the claimants entitlements upon the termination of their employment. The defendant’s failure to pay the claimants, they are entitled to damages for breach of non-payment. It is also submitted that having compelled the claimants to retain services of a lawyer, the claimants are entitled to recover legal fees from the defendant.
14. It is also the submission of counsel that under section 8(1) (c) of the Pension Reforms Act 2004, it is mandatory contributory pension scheme is set up in which an employee is required to deduct 7 ½ of employees’ monthly salary and same percentage of contribution from the employer and paid into the employees’ pension savings account maintained with a pension fund administrator.
15. It is submitted that from exhibit C1, the defendant deducts the contributory savings from the claimants’ salaries every month, but exhibits C7, C8 and C10, the defendant has never paid the contributions of both employer and that of the employee. Counsel also submitted by section 11(7) of Pension Reform act it is an offence for an employer to fail to remit to the pension fund administrator under the contributory pension scheme. Counsel urged the court to rely on exhibit C12 to grant this relief.
16. It is submitted that the claim for damages is as a result of the defendant’s failure to pay the claimants entitlement due to them since April 2017, when the defendant laid off the claimants. Counsel placed reliance on Olarenwaju V Afribank (2001) 6 MJSC 68 @ 71, where the Supreme Court held that:
‘’If the master terminates the contract with his servant in a manner not warranted by the contract, he must pay damages for breach of contract. The remedy is in damages’’.
17. Issue 2, Whether by his inability to defend the suit the defendant has admitted his liability to the claimants. In arguing this issue counsel submitted that the defendant’s failure to file defence means admission of liability to the claimants. To support this submission counsel relied on the case of Okoebor V Police Council & 2 Ors (2003) 6 MJSC 13 @ 15, where it was stated, thus:-
‘’the basic principle of law is that where a defendant fails to file defence he will be deemed to have admitted the claim or relief in the statement of claim.’’
18. Counsel submitted that the claimants witness testified on 14/10/2021, which evidence has neither been contradicted nor discredited by the defendant. The law is very clear in a matter like this. Counsel also relied on the case of Ayinke V Lawal (1994) 7 NWLR (Pt.356) 263.
19. Counsel also submitted that in this case the defendant has waived its right to fair hearing by the persistent absence from court in spite of all the hearing notices ordered by the court and served on the defendant. In support of this contention counsel relied on the case of Governor of Oyo state & 2 Ors V Oba Ololade Folayan (1995) 9 SCNJ 50v 2 53.
20. Counsel urged the court to grant the claimants claim.
COURT’S DECISION:
21. I have earlier in this judgment stated that the defendant despite being served with the originating process commencing this, and entry of appearance and filing preliminary objection refused to file defence to the claim of the claimants, after the dismissal of the preliminary objection.
22. The law is trite that where a defendant failed to file defence or appear to defend or participate in the trial despite being given opportunity to do so, is deemed to have admitted the claim of the claimant.
23. The claimants in this action have argued that they have discharged the burden of proof impose on them by the law through the evidence of CW1 and documents tendered and admitted as exhibits in the course of the trial. This is because the defendant has failed to take advantage of the opportunity afforded to it to defend, but failed to do so.
24. Though, the defendant has not filed any defence or appeared to cross examined CW1 on the evidence given before the court, the claimants are still by law required to succeed by minimal evidential proof. Where issues are not joined, as in this case, proof is not required. This trite position of law is what was restated in the case of Akibu V Odutan (1992) 2 NWLR (222) 210 at 226-7, where the apex court stated, thus: -
‘’Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not Joined issues which make proof unnecessary."
25. However, the claimants claim as endorsed at paragraphs 17 of the statement of facts, which have been captured earlier in this judgment, clearly shows that claims for salary, medical allowance and arrears of deductions for pension, being monetary claims are in law claims for special damages. See 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) page 35 paragraphs BE, per Abba Aji, JCA (now JSC) held thus:
‘‘The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.’’
26. The fundamental question that arises is whether a claim for special damages such as the claimants’ relief 1, in the instant case, will succeed on the defendant’s failure to file defence. The answer to this vexed question can be found in the decision of the Supreme Court in the case of NNPC V CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174, where it was stated as follows:
"A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357."
27. Stressing further on the need to strictly prove special damages, the apex Court in the case of NEKA BBB MANUFACTURING CO. LTD V AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt 1) 32 held:
‘’Where the claimant specifically alleges that he suffered special damages, he must perforce prove it. The method of proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable so that the opposing party and the Court will see and appreciate the nature of special damages suffered and being claimed."
28. The trite position of the law as restated in the above decisions of the apex Court is that a claim for special damages being exceptional and specific in nature, can succeed only upon concrete proof and not upon admission, either implied or express. Put differently, because special damages are exceptional and specific in nature, they will not succeed and will not be granted as a matter of course upon admission, express or otherwise, even where it is specifically pleaded as required by the law.
29. In the case at hand the evidence of CW1 and the exhibits tendered through him cannot by any stretch of imagination prove claim for special damages. By law, entitlement to special damages must not only be specifically pleaded, it must also be strictly proved. Admission either on the basis of default of pleadings or on pleadings without evidence to show the claimants entitlement is not enough. The success of a claim in special damages depends on the strict prove of what is claimed. Where the claimant fails to prove his claim of special damages, he cannot rely on the defendants admission on pleadings and his case is bound to fail.
30. It is to be noted that special damages are claims that the law does not presume or infer from the nature of the act complained of. This is because; they do not flow or follow in the ordinary course of events, like in the case of general damages. They are special and exceptional in their character. Hence, they must be specially pleaded and strictly proved. See Onuigbo v. Nwekeson (1993) 3 NWLR (Pt. 283) 533; Ekennia v. Nkpa - kara (L997) 5 NWLR (Pt. 504) 152, Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 931) 439. Therefore, for a party making claim for special damages to succeed in an action for special damages, it must be strictly proved. The term "strict proof", means no more than that the evidence adduced must ventilate and vindicate the particulars pleaded in the statement of claim. The evidence must indicatively particularize and exactly identify with clarity the averred losses with measurable exactitude. The required standard is not especially or exceptionally high to the extent of not being readily attainable. What is required is evidence which is apt and of such a magnitude that lends itself to ascertainable proclivity. That is, amplified evidence necessary to copiously establish the pleadings and computed amount being claimed. In any event, what determines strict proof depends largely on the given facts and peculiar circumstances of each case. Invariably, the burden in this regard is discharged when there is credible evidence that enhances proximate assessment or quantification of the alleged losses or damages.
31. It is also necessary to point out that proof of entitlement is often by reference to an instrument or document that grants it see (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence. In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.
32. The claim of the claimants being for special damages 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 [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).
33. In the instant case, the claimants, in proof of their claim for March 2017 and 1st - 6th April 2017, salaries, medical allowance for 1st quarter 2017 and arrears of pensions deductions not remitted, relied on exhibits C1, C4, C7, C8, C10 and exhibit 12. These exhibits are incapable of proving the claim of the claimants due to lack of evidential value.
34. For exhibit C1 it is a photocopy of a letter written by the defendant to Shoreline Logistics Nigeria Limited. This document was tendered in evidence through CW1. CW1 is one of the claimants in this. CW1 is not a member of staff of Shoreline Logistics Nigeria Limited. There is nothing before the court to show that the request made vide exhibit CW1 was paid to the defendant. Exhibit C1, can only establish that a request for payment has been made but not proof of the payment.
35. I also note that there is also attached to exhibit C1 a copy of a table with columns with title payment voucher for earth Summit Security Ltd (Shoreline) for month of March 2017. And there is no officer from Shoreline Logistics Limited called to testify before the court to validate the claim for payment. Exhibit C4 being a letter of demand, cannot serve as proof, all that it can show is that the claimants have demanded for their entitlement from the defendant and no more.
36. Exhibit C12 is a document prepared by one of the claimants. The document is inform of a table titled details of claimants entitlements for March 2017, prorated salary for 6 days (1st – 6th April 2017), medical allowance for 1st quarter 2017, and arrears deducted pension, but not remitted (August 2014 – March 2017). Exhibit C12, cannot be proof any claim, all that the exhibit shows is that the claimants have claim against the defendant, but not proof of any claim. To make matters worse, exhibit C12 is undated, this has rendered it not having any evidential value.
37. For an undated document, except where parol evidence is adduced as to its date, it remains invalid and so has no evidential value. See Aremu v. Chukwu [2011] LPELR-3862(CA). There is no parol evidence before the Court indicating the date of any of the undated documents in issue. The law is clear that an undated document is a worthless piece of paper. See Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) at page 755 and Tsalibawa v. Habiba (1991) 7 NWLR (Pt. 174) at page 461. See also Wema Bank PLC & Anor. v. Alaran Frozen Foods Agency Nigeria Limited & Anor (2015)LPELR-25980(CA). Being worthless therefore, I discountenance the said exhibit for purposes of this judgment.
38. The claimants did not also help matters by lumping of the various heads of claims as depicted in relief 1, this clearly shows the uncertainty and vagueness of the claim of the claimants. A claim that is vague and lacks certainty is no claim at all. In the instant case, in paragraph 17(1) of the claimants statement of facts, the claimants sought an order for lump sum of N3,668,460.00 being their terminal benefits, but there is no particularisation of the terminal benefits.
39. The claimants did not specifically states the sums for the various heads of terminal benefits being claimed. There is no witness called by the claimants to give evidence on exhibit C1 and the purported payment voucher attached to exhibit C1 was not signed therefore it is a worthless piece of paper which in the eyes of the law has no probative value and is void. See Ojo v. Adejobi (1978) 3 SC 65,
40. The main relief which is for terminal benefits being vague, uncertain and lacking in particulars and proof by evidence must fail. See University of Jos V Dr. Ikegwuoha (2013) 8 NWLR (PT.1360) 478. Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate it disentitled the claimant.
41. The law has always been that parties must succeed or fail on the strength of their case as presented before the Court. The claimants claimed for special damages in respect of unpaid salaries, medical allowance for 1st quarter 2017 and arrears of pension deductions not remitted. It is a well-established principle of law that special damages claimed by a party must be strictly proved. See Dumez v. Ogboli (1972) 3 SC 196 and Agunwa v. Onukwue (1962) 1 All NLR 537.
Whenever special damages are claimed, the party so claiming has an uphill task of a strict proof. In effect the rule requires anyone asking for special damages to prove strictly that he suffered such special damages as he claimed. Thus, the claimant should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to an award under that head. The general law of evidence as to proof by preponderance in civil cases operates in discharging such burden of proof. The claimants failed to prove special damages.
The failure to particularize and strictly prove special damages by qualitative and credible evidence renders the claim for special damages liable to be dismissed. Since the other two reliefs defend on relief 1, the failure of relief 1, means failure of the other two reliefs for damages and cost of litigation.
42. The law is well settled that for a party to be awarded any relief by a court of law, that party must not only plead with particularity but also prove by credible and convincing evidence that he is indeed entitled to the relief he seeks. A court of law has no jurisdiction to grant to a party that which he has not asked for. Courts ought not to play the role of Father Christmas which can go round granting to parties reliefs which they have not asked for. Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401; Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392; Ige v. Olunloyo (1984) 1 SCNLR 158; Atser v. Gachi (1997) 6 NWLR (Pt. 570) 609; Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605; Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514.
43. It is pertinent to stress that the claimants claim failed to show the heads of each items of claim. The claimants must fail since the claim is in the specie of special damages which must be specifically pleaded and strictly proved. This was not done by the claimants in the instant case. Even though the defendant did not file any defence to counter the claimants’ averment, it is trite that admission of special damages does not absolve claimants from strict proof. Put simply, a claim for special damages cannot succeed solely on admission. See NNPC v CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 where the Supreme Court, aptly held that special damages are never inferred from the nature of the act complained of. See also UNILORIN TEACHING HOSPITAL v ABEGUNDE(2013) LPELR 21375 (CA); ARAB CONSTRUCTION LTD & ANOR v ISAAC (2012) LPELR 9787 (CA).
44. I also note that exhibit C12, details claimants entitlement was prepared by a party interested in anticipation of this suit. Therefore, exhibit C12, cannot have any evidential value to establish the claim of the claimants. Exhibit C12 ought to have been expunged for offending section 83 (3) of the Evidence Act 2011. It is trite law that document made by a party to a suit or person otherwise interested when proceedings are pending or anticipated is not admissible. This means in effect by mandatory provision of Section 83(3) of the Evidence Act, 2011, has rendered exhibit C12, ineffective and cannot be acted upon in this case. See LADOJA v AJIMOBI & ORS (2016) LPELR 40658 (SC); U.T.C. (NIG) PLC v LAWAL (2013) LPELR 23003 (SC); B. B. APUGO & SONS LTD v OHMB (2016) LPELR 40598 (SC); HIGHGRADE MARITIME SERVICES LTD v F.B.N. LTD (1991) LPELR 1364 (SC).
45. In view of all I have been saying above, the claimant have woefully failed to discharge the onus of proof which rest on them and are therefore not entitled to any judgment in their favour.
46. Before ending this suit let me say that reference by counsel to section 20(1) of Labour Act, was not correct. The reason being that the section is not relevant to the issues under consideration. Section 20 of Labour Act deal with issue of redundancy and there is no claim for redundancy in this suit.
47. Likewise, reference to section 8(1) of the Pension Reforms act 2004 was also wrong as the said law has been replaced by Pension Reform act of 2014. The wrong citation of the relevant law may have been responsible for the claimant to state wrong percentage of contributions to be made. The relevant section is section 4 of the Pension Reform Act 2014. The contribution to be made by employer is ten per-cent. While the employee is to contribute eight per-cent.
48. In the final result and for all the reasons I have given above, this suit is unmeritorious and is hereby dismissed.
49. I make no order as to cost.
Sanusi Kado,
Judge.
REPRESENTATION:
I. I. Ikoi, Esq; for the claimants
No representation for the defendant.