IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 16th day of May, 2023                             SUIT NO:   NICN/YEN/75/2016

 

BETWEEN:

 

MELROSE BOOKS AND PUBLISHING LTD      ----                  CLAIMANT

 

AND

 

MR. HAPPY OGHRORO                            ----                  DEFENDANT

 

Representations:

G. N. Akwarandu Esq. for the Defendant.

 

Judgment.

 

This suit was commenced by way of a General form of Complaint filed on the 3rd of May, 2016 along with statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

The said suit was originally commenced at the Yenagoa Division before Hon. Justice J. T. Agbadu Fishim and it was subsequently transferred to Owerri Division before Hon. Justice Hamisu Danjidda, and following which it was transferred to Port Harcourt Division and assigned to this court sometime in July 2019. Arising from the complaint and statement of fact, the Claimant claims against the Defendant is as follows:

1.         The sum of N2, 048,000.00 (Two Million Forty-Eight Thousand Naira) being the value of the Claimant’s goods which the Defendant removed from the Claimant’s Depot at Port-Harcourt and unlawfully appropriated to himself.

2.         The sum of N1,040,000.00 (One Million Forty Thousand Naira) being the proceeds of sale of the Claimant’s goods collected by the Defendant from Charles Ugboko, a Sales Representative under his supervision, which the Defendant failed to remit to the Claimant.

3.         The sum of N439, 450.00 (Four Hundred and Thirty-Nine Thousand Four Hundred and Fifty Naira) being the proceeds of the sale of goods belonging to the Claimant which the Defendant collected and unlawfully appropriated to himself.

4.         The sum N10,519,934.00 (Ten Million Five Hundred and Nineteen Thousand, Nine Hundred and Thirty-Four Naira) being the value the Claimant’s goods in the custody of the Defendant which the Defendant has failed to account for till date.

5.         Interest on the aforementioned sums at the rate of 21% per annum from July, 2015 until Judgment.

6.         Interest on the judgment sum at the rate of 10% per annum from the date of judgment until the final liquidation thereof.

In reaction to the claims, the Defendant on the 4th of February, 2021 entered appearance by filing a statement of defence and counter claims, list of witness and witness statement on oath, list of documents and copies of the said documents to be relied upon at trial, the counter-claim of the defendant is as follows;

1.         The repayment of the sum of N1, 200,000.00 (One Million, Two Hundred Thousand Naira) being and representing the sum of Money the Defendant contributed in preparing for a workshop organized by the Claimant between April, 2015 and June, 2015.

2.         The Payment of the sum of N868, 148.00 (Eight Hundred and Sixty Eight Thousand, One Hundred and Forty Eight  Naira)  being the Defendant’s commission from the total amount Living Word Ministries paid to the Claimant in respect of the books the Defendant supplied to Living Word Academy.

3.         The sum of N5, 000,000.00 (Five Million Naira) being and representing special and general damages the Defendant has suffered as a result of the Claimant’s unwarranted acts of refusing to accept the Defendants resignation letter which has prevented the Defendant from securing another job since 2015 till date and has resulted to untold hardship for the Defendant and his family.

After pleadings were exchanged and matter adjourned for hearing of the substantive suit, the claimant failed to present their case on several occasions that the matter was adjourned for hearing of the claimant’s case, the matter was for the last time adjourned for hearing to the 25th day of January 2022, however the claimant failed to open his case, the case of the claimant was then struck out due to lack of diligent prosecution. On the 15th day of November 2022 the defendant presented their defense by calling their first witness in the person of Happy Oghroro as DW1/CC1 and he adopted his witness statements on oath which was marked as CC1. Through the said DW1/CC1, 5 documents were tendered and admitted in evidence as CC2– CC6.

Arising from the Statement of Defence and witness statement on oath of DW1/CC1, the case for the Defendant is that the Defendant supervised the business  activities of the Claimant in six (6) of its depots in the Eastern region of Nigeria including Port-Harcourt. That he is not aware of any audit conducted by the claimant which formed the basis of the claimant’s action in this court, and that he only received a letter from the Claimant’s managing Director dated 15/7/2015 informing him of the allegations of financial misappropriation which was made against him, thereby directing him to report to the Claimant’s head office on 21/7/2015 to defend himself in front of a panel which he did and he exonerated himself of each and every allegations of financial misappropriation contained in the Claimant’s letter of 15/7/2015 directed to him. The defendant added that the months of April, 2014 and June 2014 he was busy preparing for workshops organized by the claimant in each of the four (4) states the Defendant was covering as the district manager of the claimant and that on the agreement of the Claimant and the Defendant, the Defendant financed the said workshop with the sum of N1, 200,000.00 (One Million, Two Hundred Thousand Naira), which said sum he alleged was borrowed with interest but that the Claimant has refused to pay back the money despite repeated demands. He added further that the Defendant tendered his resignation letter dated 22/7/2015 to the Claimant, but that the claimant refused to accept his resignation letter, the Defendant averred further that he was forced to resign his employment with the Claimant because of the wicked and intolerable behavior of the Claimant towards the Defendant, and that the Defendant did not misappropriate the Claimant’s money. He went further to state that the Claimant’s unwarranted act of refusing to accept the Defendants resignation letter has made things difficult for him and prevented the Defendant from securing another job since 2015 till date and this has resulted to untold hardship for the Defendant and his family. He stated further that the defendant is entitled to the sum of N868, 148.00 (Eight Hundred and Sixty Eight Thousand, One Hundred and Forty Eight Naira) being the Defendant’s commission from the total amount of money Living Word Ministries paid to the claimant in respect of the books the Defendant supplied to Living word Group Academy.

Upon cross examination, DW1 /CC1 posited that his salary was N267, 000.00 with float allowance of N50, 000.00 and a 20% commission of goods sold, and that as a district manager of the south region when a request is made, he writes to the company who will deliver the goods to him and he will supply to the buyer and he will thereafter pay the money to the company within 24 hours. That as the district manager he was entitled to vehicle and money for the maintenance of the vehicle but the claimant later stopped giving money, and that when he was with the claimant he had organized workshop for over 60 times and that the said workshop was organized on the authority of the claimant although he has nothing to show to that effect. And that he chose to resign and pay one month salary in lieu of notice even  when claimant’s letter said he should give them one month before resignation, and that he went to the investigation penal to refute all allegations against him and that the record of the investigation panel proceedings is with the claimant.

Upon the discharge of DW1/CC1, the matter was adjourned for adoption of final written address and arising from the Address of the Defendant which was filed on the 7th day of March, 2023, counsel to the Defendant G. N. Akwarandu Esq, formulated 2 issues for the determination of this suit to wit:

a.         Whether the Claimant has established the liability of the Defendant for the reliefs sought.

b.         Whether the Defendant/Counter-Claimant has proved his case in the light of the facts, pleadings and evidence entitling him to the reliefs sought.

In arguing issue one counsel stated that Section 131 of the evidence act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts to which he asserts must prove that those facts exists. Counsel cited ONUIGBO V. NWEKESON (1993) 3 NWLR (PT. 283) 533. Counsel submitted that the claimant did not only fail to prove its case but equally refused/failed to present itself before the court to prove its case and consequently, the Claimants case was struck out for want of diligent prosecution on 25/01/2022. And that the Claimant having failed to prove her case is therefore not entitled to the reliefs sought.

On the second issue counsel stated that Exhibits CC1 and CC4 shows that Living Word Academy Ministries paid the total sum of N3,956,740.00 (Three Million, Nine Hundred and Fifty-Six Thousand, Seven Hundred and Forty Naira) to the Claimant for the goods (books) worth N3,956,718 (Three Million, Nine Hundred and Fifty-Six Thousand, Seven Hundred and Eighteen Naira) supplied to Living Word Academy of No. 153 Aba/Owerri Road, Aba, Abia State and that the Claimant has refused to pay the Defendant/Counter Claimant his Commission.

Counsel further stated that the case of the Defendant/Counter Claimant is that he contributed the sum of N1,200,000 (One Million, Two Hundred Thousand naira) which was borrowed on interest to finance a workshop organized by the Claimant between April, 2015 and June, 2015. And that Exhibit CC5 is the list of attendees to  the workshop organized by the Claimant while Exhibit CC3 is a copy of the loan application form the Defendant/Counter Claimant used in securing  the loan of  N1, 200,000 (One Million, Two Hundred Thousand Naira), this was contributed to the workshop organized by the Claimant. Since then, the Claimant has refused to refund the expended sum to the defendant.

Counsel further submitted that the act of the claimant by refusing to accept the Defendant/Counter-Claimant’s resignation letter made it difficult for and has prevented the Defendant/Counter-Claimant from securing another job since 2015 and has resulted to untold hardship for the Defendant/Counter-Claimant and his family. Counsel submitted further that in spite of service of the Defendant/Counter Claimant’s Statement of Defence/Counter-Claim on the claimant, the Claimant did not file any defence to the Counter Claim and that the Defendant/Counter-Claimant has shown from credible evidence that he is entitled to all the reliefs sought for in his counter-claim and urged the court to grant same.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimony of the witness called by the defendant, watched his demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submission of learned Counsel to the defendant/counter-claimer in his final written address.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written address, the sole issue for the determination of this suit is to wit:

Whether or not in view of the facts and evidence before this court, the defendant is entitled to the reliefs sought.

Before resolving the lone issue, I must quickly state that this action was instituted by the claimants who were unable to proceed with their case due to the absence of their witness. Thus, the case of the claimant was struck out on the 25th day of January 2022 due to lack of diligence and the defendant presented their counter-claim before the court while the claimant did not response to the counterclaim of the defendant.

I will now turn to the sole issue for determination which is simply to ascertain whether or not based on the facts and evidence before this court, the defendant is entitled to his counter-claims. 

In determining the sole issue, I find it apposite to highlight the facts before this court which the counter-claim of the defendant is based on. It is the case of the defendant that the Defendant as the district manager of the claimant’s company supervised the business activities of the Claimant in six (6) of its depots in the Eastern region of Nigeria including Port-Harcourt. That by an audit conducted by the claimant the defendant was alleged to have misappropriated funds and was made to face a panel on the 21/7/2015 wherein he allegedly exonerated himself of each and every allegation of financial misappropriation contained in the Claimant’s letter of 15/7/2015 directed to him. Defendant alleged that because of that, he tendered his resignation letter dated 22/7/2015 to the Claimant, but that the claimant refused to accept his resignation letter which has caused hardship to the defendant and his family. However prior to the resignation the defendant alleged that he is entitled to the sum of N868, 148.00 (Eight Hundred and Sixty Eight Thousand, One Hundred and Forty Eight Naira) being the Defendant’s commission from the total amount of money Living Word Ministries paid to the claimant in respect of the books the Defendant supplied to Living word Group Academy. And also the fact that the Defendant financed the said workshop with the sum of N1, 200,000.00 (One Million, Two Hundred Thousand Naira), which said sum he alleged was borrowed with interest but that the Claimant has refused to pay back the money despite repeated demands.

The Defendant is accordingly seeking for the payment of the sum of N1, 200,000.00 (One Million, Two Hundred Thousand Naira), which said sum he alleged was borrowed for the workshop and the sum of N868, 148.00 (Eight Hundred and Sixty Eight Thousand, One Hundred and Forty Eight Naira) being the Defendant’s commission from the total amount of money Living Word Ministries paid to the claimant in respect of the books the Defendant supplied to Living word Group Academy.

It is worthy to note that the claimant neither proceeded with their case nor filed any defence to the counter claim of the defendant. Hence I agree that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts to which he asserts must prove that those facts exists. Just like in the case of a claimant, where the claimant must establish his claim on the strength of their case same rule is also applicable in this case, the defendant must establish his claim on the strength of his case and not on the weakness of the claimant case. Per MISITURA OMODERE BOLAJI-YUSUFF ,JCA In DOZZY GROUP OF COMPANIES LIMITED v. MR. L. N. OKEKE(2016) LPELR-41522(CA) held that, "It is the law that a counter claim is a separate, independent and distinct action from the main claim. The burden of proof is on the counter claimant to prove the counter claim by credible evidence just as in the main claim."

Bearing the foregoing in mind, I shall consider each of the reliefs in order to determine which is grantable based on facts and evidence before this court.

Relief A is for, the repayment of the sum of N1, 200,000.00 (One Million, Two Hundred Thousand naira) being and representing the sum of money the Defendant contributed in preparing for a Workshop organized by the Claimant between April, 2015 and June, 2015.

The pivotal aspect of the relief is that the Defendant claims to have financed the workshop organized by the claimant with the sum of N1, 200,000.00 (One Million, Two Hundred Thousand Naira), he stated that the said sum was borrowed with interest and that this amount has not been paid back by the claimant. In support of their case the defendant has tendered Exhibit CC4 which is a loan application form dated 7/6/2015 and Exhibit CC6 which is the Claimant’s workshop attendance list of 2015.

I have taken a careful look at the said Exhibit CC4 which is a loan application form dated 7/6/2015 from “IGHOFUETA FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LIMITED" upon which the claimant is asking for this relief and I have observed that the purpose for the loan as stated on the said application form for the loan is for Business and not for a workshop and is hard to believe that a loan which stated that the purpose for it’s application is for business is the same as that which the defendant alleged to have been used for workshop.

Moreso, the defendant has stated in paragraph 14 of his defence that the workshop was organized by the claimant, but that he contributed N1, 2000.000.00 for the said workshop based on the agreement of both parties, however, the defendant has not placed anything useful before this court to show that the claimant consented to the said application for loan or even a written request to the defendant authorizing the defendant to collect loan for the claimant’s workshop or the said agreement entered by both parties to the effect that indeed  the claimant consented to the procurement of the a loan for the sole purpose of financing the said workshop or even evidence of a previous transaction, similar in nature to buttress the fact that  it is a norm for the defendant to contribute to the said workshop.

In AMMAX (NIGERIA) LIMITED & ANOR v. DIAMOND BANK PLC (2020) LPELR-51258(CA) the court held that, "A counter-claim is not merely a defence to the plaintiff's claim. It is an independent action and not part of the original action, although for convenience the two are tried together, the defendant in the counter-claim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of the defendant in the counter claim. Thus, a counter-claim is a separate action demanding the same respect as the original action, and the same constitutional right to fair hearing that the original claimant is entitled to, should not be denied to the counter-claimant, who is also a claimant in his own right. …In proof which lies on the plaintiff to prove his claim is also on the defendant to prove the averments in his counter-claim against the plaintiff or he will fail in his claim and the standard of proof appropriate to be attained in order to give judgment on a counter-claim of the defendant is of the type required of the plaintiff in every civil claim, that is, proof based on preponderance of evidence. See UNOKAN LTD V. OMUVWIE (2005) 1 NWLR (prt 907) 293…”

Based on the foregoing, the defendant/counter-claimant having not established the existence of a consentual agreement between the parties, relief (A) is bound to fail and same is hereby refused.

Relief two is for, the repayment of the sum of N868,148.00 (Eight Hundred and Sixty-Eight Thousand, One Hundred and Forty Eight naira) being the Defendant’s commission from the total amount Living Word Ministries paid to the Claimant in respect of the goods the Defendant supplied to Living Word Academy.

The basis for this relief is that the defendant alleged to have supplied the Claimant’s goods (books) worth N3,956,718 (Three Million, Nine Hundred and Fifty-Six Thousand, Seven Hundred and Eighteen Naira) to Living Word Academy of No. 153 Aba/Owerri Road, Aba, Abia State. That the Defendant/Counter-Claimant is entitled to the sum of N868,148.00 (Eight Hundred and Sixty-Eight Thousand, One Hundred and Forty-Eight naira) as commission from the total amount Living Word Ministries paid to the Claimant in respect of the books supplied by the Defendant/Counter-Claimant to Living Word Academy. And in prove of the transaction that goods were actually delivered to Living Word Academy and payments were made, the defendant tendered Exhibit CC5 which is a Keystone Bank Cheque dated 12/12/2016 issued by the living word academy to the claimant followed by Exhibit CC2 which is the letter to the Defendant by the living word dated 17/12/2016 informing the defendant about the payment of the balance of the goods supplied to them.

It is beyond  doubt that goods were actually supplied by the defendant to the Living word, however the defendant has a duty to prove the fact that there exists an understanding between the defendant and claimant to the effect that he is entitled to a particular percentage in respect of claimant’s goods supplied by the defendant to any customer, It is not enough to claim entitlement or commission to a particular sale, but there is the need to establish the fact that there is a memorandum of understanding between the parties that for every sale, the defendant is entitled to a commission. And this is the fact which the defendant has failed to establish. In MICHAEL SUNDAY OROJA & ORS v. EBENEZER ILO ADENIYI & ORS (2017) LPELR-41985(SC) Per CHIMA CENTUS NWEZE ,JSC held that, "...the counter-claimant, like the plaintiff in the main action, has a duty to prove his Counter-claim if he hoped to obtain judgment, Jeric Nigeria Ltd v. Union Bank of Nigeria Plc (2001) 7 WRN 1, 18; Prime Merchant Bank v Man-Mountain Company (2000) 6 WRN 130, 134; Walter v Skyll Nig. Ltd (2000) 13 WRN 60, 98. In effect, the burden of proving a Counter Claim is on the counter claimant as he is the party who would fail is no evidence is adduced to establish it, N.B.N. Ltd v. U.C. Holding Ltd (2004) 13 NWLR (Pt. 891) 436, 454; Umeojiako v. Ezeanamuo (1990) 1 NWLR (Pt 126) 253, 267."

The defendant having failed to establish consensus ad idem between the parties in respect of commission or percentage which the defendant would be entitled to for every sale of the claimant’s goods, the said relief is also bound to fail. Hence relief (B) is hereby refused.

Relief 3 is for, the sum of N5, 000,000.00 (Five Million Naira) being and representing special and general damages the Defendant has suffered as a result of the Claimant’s unwarranted acts of refusing to accept the Defendant’s resignation letter which has prevented the Defendant from securing another job since 2015 till date and has resulted to untold hardship for the Defendant and his family.

The court gave a good distinction between special and general damages in LUKE NWANEWU ONYIORAH v. BENEDICT C. ONYIORAH & ANOR(2019) LPELR-49096(SC) where the court held that, "General damages" are such, as the law will presume to be the direct, natural or probable consequence of the act complained of. Whereas, "special damages" are such, as the law will not infer from the nature of the act. They are exceptional in their character, and must be claimed specially and proved strictly- McGregor on Damages, 13th Ed. In other words, when it comes to special damages, all the losses claimed on every item must have crystallized in terms and value before the trial - see Shodipo & Co. Ltd. V. Daily Times (1972) All NLR 842. As Elias, CJN, noted in Shodipo & Co. Ltd. V. Daily Times (supra), the difference between a claim for special or general damages is that: Where one is claiming special damages, the circumstances are such that one is able to put one's finger on a particular item of loss and say, 'I can prove that I lost so much there, so much there, and so much there', whereas a claim for general damages means this: We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss”.

It is thus well settled that in law there is need to specifically plead and strictly prove special damages as the rule requires anyone asking for special damages to prove strictly that he did suffered such damages as being claimed, though this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required of a party claiming special damages is to establish entitlement to such special damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head. See FLOURMILLS OF NIGERIA PLC & ANOR v. NIGERIA CUSTOMS SERVICE BOARD & ORS (2016) LPELR-41256(CA).

I have considered the evidence before this court, the defendant has not specifically placed any cogent and convincing evidence before the court nor pleaded any special damages that he suffered which is a proportional result of the claimant’s act so as to be entitled to special damages. Consequently, relief for special damages is hereby refused.

The defendant had also asked for a general damages, and General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant's act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA).

 

In A.S.E.S.A. v. EKWENEM (2009) 13 NWLR (PT. 1158) 410, His Lordship Adekeye JSC held that: "Award of damages either special or general, is not made as a matter of course or on speculation or sentiment, but on sound and solid legal principles. "In other words", according to the Learned Emeritus, Law Lord, "It is not made out of sympathy borne out of extraneous consideration but on legal evidence of probative value adduced in proof of an actionable wrong or injury." 

 

The defendant is consequently not entitled to general damages based on the foregoing analysis, no evidence is before this court to prove the existence of any direct injury or damage sustained as a result of the action or inaction of the Claimant. I, therefore do not hesitate to refuse Relief three in its entirety.

 

It goes without saying therefore that the sole issue for determination is resolved against the defendant to the effect that the defendant is not entitled to the reliefs sought based on the facts and evidence available before this court.

In the final analysis, the counter-claim of the defendant lacks merit and same is accordingly dismissed in its totality without costs.

Judgment is accordingly entered.

 

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE