NATIONAL INDUSTRIAL COURT OF NIGERIA
BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP: HON. JUSTICE A.A. ADEWEMIMO
DATED: 25TH OCTOBER, 2022 SUIT NO. NICN/BEN/05/2018
BETWEEN:
EDO STATE COMMERCIAL BIKE RIDERS’
ASSOCIATION (ESCOBRA) …….. CLAIMANT
AND
MR. SYLVESTER OBAWEKI .….… DEFENDANT
REPRESENTATION
Frank Edebor, Esq. for the Claimant
No appearance for the defendant
JUDGMENT
1. The Claimant initiated this suit vide a complaint, statement of facts and other accompanying processes dated and filed on 27th of February, 2018, but later amended same after leave was sought and obtained from the Court on 11th July, 2018. The Claimant vide his extant Statement of Facts seeks the following reliefs against the defendant:
a. A declaration that the defendant having voluntarily resigned by virtue of his letters ceases to be a member of the Claimant.
b. An order that the defendant not been a financial member of the claimant ceases to be a member.
c. An order of perpetual injunction restraining the defendant, his thugs, agents, privies, servants and other unknown persons from parading, acting and usurping the functions of the President of the Claimant.
d. The sum of N5,000,000.00 (Five Million Naira) only as general damages.
2. The Claimant is a Registered Body of Commercial Bike Riders in Edo State, with Headquarters at No. 5, Zabayor Street, Off Ekenwa Road, Benin City, and it instituted this action against the defendant, to restrain him from parading himself as a member of the Association, having resigned and ceased to be a member. The case of the claimant is that the defendant was a member, former President and member Board of Trustees of the claimant but along the line, resigned from these positions. The Claimant further alleged that the defendant went on to become a member of a rival association called ACOMORAN till date.
3. The claimant accused the defendant of been involved in some fraudulent activities which were against its Constitution, including the following: forgery of the State General Secretary’s signature; entering into a memorandum of understanding with other trade unions on the Claimant’s behalf; forgery of the association letter head paper; printing of fake identity cards; creation of illegal unit parks; misappropriation of funds; false deposition on oath that the Claimant’s Certificate of Incorporation is missing; amongst others. The Claimant through its Disciplinary Committee investigated the allegations against the defendant and recommended his removal as President, expulsion and that investigation of his criminal activities be reported to the appropriate agencies.
4. It is on record that the defendant entered appearance and filed a statement of defence in this suit dated 22nd March and filed 23rd March, 2018. The defendants denied all material averments in the statement of facts as if same have been specifically set out and traversed seriatim. While the claimant also filed a Reply to the Statement of Defence dated and filed 14th May, 2018.
5. Trial in this suit commenced on the 11th November, 2020, after the Court granted the application of the Claimant’s counsel to open its case in view of the failure of the defendant’s counsel to attend Court, despite proof that hearing notices were issued to him on several occasions. Patrick Ikhane, the General Secretary of the claimant testified as CW1, he adopted his written deposition on oath of 12th November, 2018 and tendered several documents admitted and marked Exhibits BK1 – BK9. CW1 testified that he is a member of the Board of Trustee of the Claimant. He led evidence that the defendant resigned as President, and same was accepted by the claimant and duly communicated to him whereupon he acknowledged same.
6. CW1 testified that the defendant all of a sudden resurfaced after six years, and started parading himself as President of the Claimant. CW1 testified further that the claimant resigned as President, Member, Member Board of Trustee of the Claimant. CW1 led evidence that under the Constitution of the Association, any member who resigns on his own can only be re-admitted after he must have obtained and submitted a fresh application form directed to the General Secretary. The case was thereafter adjourned for cross-examination of CW1, after the close of his evidence. Hearing notice was also ordered on the defendant’s counsel to this effect. On 1st of December. 2020, the next hearing date, the defendant was again not represented by counsel, upon which the claimant’s counsel applied that he be foreclosed from cross-examining CW1, and same was granted by the Court.
7. On the 26th of November, 2021, Mr. Innocent Egbe Imahazoboa, the State President of Bike Riders Association (the Claimant) testified as CW2. He adopted his written depositions dated 12th of November, 2018, and tendered several documents marked Exhibits BK10-BK15. CW2 testified that the Claimant is in charge of the welfare and security of all bike riders and/or members of the Association in Edo State. He averred that the defendant vide a letter dated 31st January, 2012 resigned as member and member Board of Trustees of the claimant. He added that by an earlier letter dated 10th June, 2011 addressed to the Claimant’s secretary, he had officially resigned as President of the Claimant.
8. CW2 testified that the Claimant vide a letter dated 7th March, 2012, to the defendant, raised some issues which are to be resolved before the defendant’s resignation will be accepted. CW2 led evidence that the Claimant vide its letters dated 9th May, 2012 and 24th June, 2011, accepted the defendant’s resignation as member and President respectively. He added that same was duly acknowledged by the defendant and he later went on to become a member of a rival association called ACOMORAN in 2011 till date. CW2 stated that 6 years after this event, the defendant resurfaced and started parading himself as the President of the claimant. He alleged that the defendant through the use of force and self-help, is determined to remain the Claimant’s President and vide a letter dated 10th January, 2018, written on the claimant’s letter head, wherein he forged the signature of the State General Secretary dissolved the Esan North East Local Government of the Association. He alleged further that the defendant also signed a Memorandum of Understanding dated 30th October, 2017 as the Chairman of the Claimant with other Trade Unions, knowing fully well he is no longer a member of the Claimant.
9. CW2 continued that the defendant falsely deposed to an affidavit dated July, 2009 filed at the High Court of Justice Registry, Benin City that the Certificate of Incorporation issued to the claimant was missing, knowing he was never in possession of same.
10. CW2 testified that before the defendant ceased to be a member of the claimant, a disciplinary committee was set up to investigate the allegations against him but he bluntly refused to appear before them. He maintained that the committee later recommended among other things, his removal, expulsion, and that his criminal activities be reported to the relevant agencies. CW2 led evidence that any member of the claimant that resigns voluntarily must re-apply to the General Secretary before he can be accepted back. Adding that such member cannot be recalled by the executive committee or any other organ, except he is a suspended member.
11. He elucidated further that the State Executive has no power to recall a member that resigns and no recall was made in this instance. He also claimed that himself and CW1 are members of the Board of Trustees of the claimant, and the Association does not operate a bank account with Union Bank Plc, Mission Branch, Benin City till date. He testified that the claimant’s constitution requires the signatures of the President, Secretary and the Treasurer in opening new Bank Accounts, and neither Comrade Peter Ike nor the defendant is the State Treasurer and President respectively.
12. In conclusion, CW2 averred that at its emergency meeting held on 19th of January, 2018, the President and members Board of Trustees were directed to initiate legal proceedings against the defendant. The court upon the close of evidence of CW2 later adjourned cross examination of the witness to the next hearing.
13. Owing to the absence of the defence counsel at the subsequent hearings, notwithstanding the service of hearing notices on him, the Court foreclosed the defendant from defending the suit and the case was adjourned for Adoption of Final Written Addresses. Learned counsel for the claimant filed his Final Written Address dated 10th May on 12th May, 2022, and same was eventually adopted on 25th July, 2022.
14. The Claimant’s Final Address was argued by Frank Edebor, Esq. wherein he formulated a sole issue for determination, to wit:
Whether the claimant from the evidence is entitled to the reliefs as stated in its Amended Statement of Facts?
15. On the sole issue, the Claimant’s counsel contended that it is trite law that where evidence is unchallenged or uncontroverted, such evidence will be accepted as proof of the fact it seeks to establish. He noted that the claimant has been able to discharge the burden of proof in this case and argued that the defendant neither led any evidence to rebut the claimant’s case nor cross examined the Claimant’s witnesses. On this premise, he claimed the defendant did not discharge the burden of proof placed on him to rebut the claimant’s case. He relied on Military Government of Lagos State Vs Adeyiga (2012) AFWLR Part 616, page 396 A 424 paragraph G and 425 paragraph A and pointed out that the testimony of the witnesses called and the exhibits tendered were not challenged nor controverted.
16. He argued further that it is settled law that the burden of proof in a particular proceeding lies on the person who would fail if no further evidence is given on either side, and cited AKINBADE V. BABATUNDE & ORS. 2018 VOL. 276 LRCN Page 48 at 85 paragraph F – Z. On the claim for N5,0000,000.00(Five Million Naira) general damages, he argued that the Claimant is entitled to same, citing NATIONAL UNIVERSITIES COMMISSION VS ALLI 2024 ALL FWLR PT 715 page 233.
17. In conclusion, he urged the court to grant the claimant’s reliefs as contained in the complaint in this suit.
18. I have studied the processes filed, listened to the witnesses called, and studied the Exhibits tendered by the claimant in proof of its case. I have also considered the final submissions of learned counsel for the claimant and thereafter adopted the issue formulated by claimant’s counsel for the determination of this case to wit:
Whether the claimant from the evidence is entitled to the reliefs as stated in its Amended Statement of Facts?
19. It is worthy of note that this case was undefended by the defendant, even though, he entered appearance and filed a statement of defence at a point. The defendant however abandoned the case and did not attend court to cross examine the claimant’s witnesses or establish his defence. The position of the law is clear, in instances where a party refused to call evidence to back up its pleadings, same is deemed abandoned and can in no way be relied on by the court. Also, see GOV. ZAMFARA STATE V. GYALANGE (2013) 8 NWLR (PT 1357) P.482 paras D – E where the Court held:
“Evidence that is neither attacked nor successfully challenged is deemed to have been admitted, and the Court can safely rely on it in the just determination of the case.”
20. Further in the case of AREMU V. CHUKWU (2012) 3 NWLR PT 1288 PP 613 – 614 PARAS H – A the court held;
“Civil cases are normally decided upon the balance of probabilities. Thu, where a party to a case is unable to adduce a credible evidence to tilt the scale of justice to his side, the court is under a duty to enter judgment against that party.”
21. The implication of the defendant’s failure to proof his case in this instance is, all the averments of the claimant is deemed admitted as same are uncontroverted. In other words, the presence of a Statement of defence notwithstanding, the defendant having failed to call evidence in support of same, the case of the Claimant stands unchallenged and only needed minimal proof, see Kayili V Yilbuk (2015)2 SCM 161 at 192-193, CBN & Ors v Okojie (2015)8 SCM 21 at 192,193 paras D-I, G-I.
22. In line with the above, this Court is obliged to accept and act on the evidence placed before the Court by the Claimant, see Adeleke v. Anike [2006] 16 NWLR (Pt.1004) 131 at 171, WAEC V. Oshionebo [2006] 12 NWLR (Pt.994) 258 at 272-273.
23. On this premise, I find that the Claimant in this case has satisfied the Court with the minimal standard of proof required from it under the law vide Section 131, 132 and 133 of the Evidence Act, 2011. The case of the Claimant that the defendant is no longer a member of the association is deemed established, the defendant having resigned, and same having been accepted by the Claimant, see Exhibits BK1 – BK3. Also see Exhibit BK6 at page 4, which specifies the requirement for membership, of which nothing was placed before the Court that the defendant has satisfied same after his resignation. In this wise, the claimant’s case succeeds, consequent upon which reliefs a, b, and c are also meritorious and are hereby granted. I so hold.
24. However, on the claim for N5,000,000(Five Million Naira) General damages, the law is trite that General damages is what the law presumes to be the direct natural or probable consequence of the act complained of or damages resulting from the loss flowing naturally from the breach of contract, and is incurred in due consequence of the breach see Okoro J.C.A in NEPA v. Malam Muhammad Auwal [2010] LPELR-4577 (CA).
25. In the instant case, however the claimant did not place anything before this Court to support this leg of his relief, especially considering the fact that the claimant has succeeded in three of its reliefs. On this premise, the claim for damages fails and is hereby refused. I so hold.
26. In summary, this Court hereby declare and order as follows:
a) The defendant having voluntarily resigned by virtue of his letters ceases to be a member of the Claimant.
b) The defendant not been a financial member cannot claim to be a member of the Claimant.
c) The defendant, his agents, privies, servants and other unknown persons are henceforth restrained from parading, acting and usurping the functions of the President of the Claimant.
A cost of N100,000.00 (One Hundred Thousand Naira) is hereby awarded against the defendant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Presiding Judge