IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP, HON. JUSTICE R.B. HAASTRUP

DATE:3^RD JUNE 2026                                  SUIT NO. NICN/ABJ/269/2023

BETWEEN:

 

Zakhem Construction Nig. Ltd……………...CLAIMANT

 

AND

 

Mr. Graham Black……………………………. DEFENDANT

 

 

REPRESENTATION

Akin Adewale, SAN for the Claimant

Emmanuel Ekong for the Defendant

 

JUDGMENT

INTRODUCTION

[1] The Claimant initiated this action against the Defendant by means of a Complaint, dated and filed 4^th day of October 2023, accompanied with the Claimant’s Statement of Facts and other Originating processes, as required by the Rules of this Court. The claims of the Claimant as per paragraph 26 of its Statement of Claim are as follows:

 

a.      An order of Court mandating the Defendant to return to the Claimant all the Claimant’s documents, files hard disks and others(sic) property of the Claimant in his possession.

 

b.     An order directing the Defendant to render comprehensive account or report of all receivables and expenditures with regard to the project the Claimant executed for Dangote Cement Company.

 

c.      An order directing the Defendant to render a comprehensive account of all receivables and expenditures with respect to the Project handled by ZB Joint Venture Ltd.

 

d.     An order directing the Defendant to pay to the Claimant the sum of N2, 000, 000, 000.00 (Two Billion Naira) being general damages for aforesaid acts of the Defendant.

 

e.      Payment of 10% interest on the judgment sum until final liquidation.

 

[2] This is a transferred case to this Court, which started De Novo on 18^th November 2024, when the case was mentioned again. By the antecedent of this case as revealed from the records of this Court, the Defendant never entered appearance and filed no processes, despite several hearing notices served on the Defendant. It is on record that from the total number of nine (9) Court sittings to wit; 18/11/2024, 21/01/2024, 6/03/2025, 8/04/2025, 18/06/2025, 21/07/2025, 24/09/2025, 17/12/2025 and 13/03/2025, the Defendant counsel appeared only in six (6) sittings, namely:21/01/2024, 6/03/2025, 24/09/2025, 17/12/2025, 13/03/2025 and today 3/06/2026.

 

[3] Seeing that the Defendant exhibited non-diligence in defending this action, the Court proceeded with Definite Hearing on 18^th June 2025.

 

CLAIMANT’S CASE

 

[4] The Claimant from his Statement of Facts, is a private registered company in Nigeria, involved inter-alia in the construction of petroleum and gas pipe-lines and other Civil Engineering services and Construction works. The Defendant was once an employee of the Claimant and later appointed as its Executive Director at Claimant’s Lagos office before the Defendant later moved to the Claimant’s Headquarters office in Abuja. The Defendant was assigned as Claimant’s representative in Claimant’s joint venture with Mr. Chris Baywood Ibe, which birthed ZB Joint Venture Limited, with the Defendant as Claimant’s representative and Executive Director, with responsibilities of reporting the activities of the Joint Venture to the Claimant periodically.

 

[5] It is the case of the Claimant that despite several demands made to the Defendant, he failed to submit a detailed report in relation to receivables and expenditures. That the Defendant ignored several requests of the Claimant to submit documents regarding the pipe-line projects executed for Dangote Cement Company, for which Dangote Cement Company still owes the Claimant huge amounts. That the Defendant had ignored the Claimant’s requests and left its premises, colluded with other staff, broke into Claimant’s office in Lagos, and carted away vital documents including the files and hard disks from computers containing information of Dangote Cement Company. That the action of the Defendant has frustrated the Claimant’s demand of outstanding payments from Dangote Cement Company, causing damages running into billions of naira to the Claimant. It is averred that without the return of the items in Defendant’s possession, it will be Impossible to do a proper reconciliation of accounts on Claimant’s projects handled for Dangote Cement Company and that of the Joint Venture; hence this action against the Defendant and the Claims thereof.

 

[6] The Claimant opened its case on 18^th June 2025, with a sole witness named Gergas Chikani, a Director of the Claimant who testified on behalf of the Claimant as CW1. After adopting his Written Statement on Oath, dated 4^th October 2023, the documents tendered in evidence by Claimant’s counsel were all admitted in evidence and marked as Exhibits C1 – C5, and the case was adjourned to 21/07/2025 for cross examination of CW1 by Defendant’s counsel. Due to the failure of Defendant or counsel to appear in Court, upon oral application of Claimant’s counsel, the Defendant was foreclosed from cross examination of CW1. Thereafter, the Claimant closed its case and case adjourned to allow Defendant the opportunity of defence.

 

[7] On 24/9/2025, the Defendant counsel Emmanuel Ekong, appeared in Court and urged the Court to set aside the foreclosure order made against the Defendant. He prayed for an adjournment on ground that the Defendant’s wife was bedridden. Meanwhile, this was the same counsel who had informed the Court on 21/01/2024 that he was appearing on protest as he was not in the know of where about of the Defendant. The Court not being convinced by submissions of learned counsel, proceeded with the matter and ordered the Claimant’s counsel to file and serve final written address on the Defendant, particularly as Defendant had filed no processes in defence. The Case was then adjourned to 17^th December 2025 for Adoption of Final Written Addresses.

 

[8] On 17^th December 2025, Defendant counsel again informed Court that he had a pending application before the Court and that the Claimant had responded to same by a Counter Affidavit, and that he needed to file a further and better affidavit in response. This Court again adjourned the case to 12^th February 2026 to hear the pending Applications, which were taken on 13^th March 2026. The Defendant counsel applied to withdraw one of the Applications dated 17^th December 2025, which is for an extension of time to transmit records of Appeal to the Court of Appeal. This Court granted the Defendant counsel’s prayer and struck out that Application since the Claimant’s counsel was not opposed to same. Thereafter the Court proceeded to hear the Application for stay of proceedings filed by Defendant on 11^th December 2025. By a Bench Ruling delivered same date, this Court relied on Order 64 Rule 14(1) (a – e) of her Rules and struck out the Application of the Defendant/Applicant for non-compliance with the above provisions. Thereafter, the Claimant’s counsel was granted the leave of Court to adopt Final Written Address, since the Defendant had no Final Address filed before the Court. The case was thereafter adjourned to 3^rd June 2026 for judgment.

 

[9] On the date of Adoption of Final Written Addresses, the Defendant counsel informed Court that he was not served with Claimant’s Final Written Address. Upon perusal of the records of the Court, it was confirmed that Final Written address of the Claimant was served on the Defendant on 3/11/2025, which was well over four (4) months before the date of adoption of addresses. (See affidavit of service deposed to by Court bailiff on 14^th November 2025 – Pages 138 – 142 of the Process File). Sequel to the adoption of Final Written Addresses, the Defendant counsel again in his usual tactics prayed the Court for an adjournment to allow him file Final Written Address. The Court found no merit in the oral Application of the Defendant counsel; hence the application was refused, and matter adjourned for judgment.

 

[10] It need be recalled that there is no Final Written Address filed by Defendant, hence it is the final written address of the Claimant that will be considered, which was adopted on 13^th March 2026.

 

CLAIMANT’S FINAL WRITTEN ADDRESS

 

[11] The Claimant’s Final Written Address is dated 9^th October 2025, but filed 10^th October 2025, with a lone issue nominated for determination to wit; whether or not the Claimant has proved its case on balance of probabilities to be entitled to a favourable judgment of this Hon. Court.

 

[12] Before his argument on the above issue, Claimant’s counsel narrated the Defendant’s antics in this suit. That since the Defendant left the Claimant’s services and his address was not known, His Lordship, Hon. Justice O.O. Oyewumi (now JCA), granted leave to the Claimant to effect service on Defendant by substituted means through his lawyers, Jasmine Advocates. That the essence was for Jasmine Advocates to bring the Court processes to the notice of the Defendant. Counsel submitted that subsequent Court processes were served on the Defendant via his email address. That the Defendant had all opportunities to defend the suit, but failed to make use of same and should not be seen to take the Court for granted.

 

[13] In his argument on the sole issue, learned Counsel for the Claimant made a summary of the Claimant’s case, which the Court already did in this judgement. It is therefore, unnecessary to recast same.

Claimant’s counsel referred the Court to Exhibit C2 dated 5^th August 2021, reproducing the entirety of the document. (Exhibit C2 was written by Claimant’s Chairman, Ibrahim Zakhem to the Defendant). By Exhibit C2, the Claimant among others made demands to the Defendant to submit a conclusive report in relation to ZB JV and Dangote Project with emphasis for work completion and subcontractors progress and payments. That prior to Exhibit C2, the Defendant had by Exhibit C5 written to the Managing Director of the Claimant of his intention to retire from the Claimant.

According to Counsel, the Defendant had declined to by the Vice Chairman of the Claimant upon the death of Albert Zakhem, and also ceased from participating in the activities of the Claimant.

 

[14] To counsel, it was possibly out of dissatisfaction with the Claimant’s new Board of Directors, that the Defendant failed to respond to Exhibit C2 and failed to carry out his duties so that the Claimant could not have the required facts and documents on its entitlements from ZB Joint ventures and from Dangote Projects. Claimant’s counsel then relied on Exhibit C5 paragraph 4 which he reproduced thus:

 

“However, Albert Zakhem leadership and focus for the future development of ZCNL is now disappointedly lost with his untimely and tragic death. Furthermore, the recent unlawful document submission to Corporate Affairs Commission (CAC) are complying to take premature retirement…………”

 

[15] Counsel submitted from the foregoing that the Defendant was not ready to work with the new Board of Directors of the Claimant following the death of Albert Zakhem, whom the Claimant had held in high esteem. That to get his pound of flesh from the new management of the Claimant, the Defendant abandoned his duties and carted away vital documents and materials of the Claimant, which would assist the Claimant to claim its entitlements from ZB Joint ventures and from Dangote Projects, urging the Court to so hold.

 

[16] Counsel continued that upon the notice of retirement of the Defendant (Exhibit C5), further demands were made on the Defendant by Chairman of the Claimant, to handover the Company’s valuables, documents and materials in relation to ZB Joint Ventures Ltd within 2 weeks, to the head of finance of the Claimant, from the date of the letter. That the Defendant ignored the demands in Exhibits C2 and C3 which have caused the Claimant huge damages. That the other partner in ZB Joint Venture, Mr. Chris Baywood Ibe submitted claims to NNPC Ltd for project executed by the Joint Venture, running into millions of United States of America Dollars, as well as contract executed for Dangote for which the Defendant was in charge, but the Claimant has remained in the dark regarding its entitlements to these claims. To buttress his above submissions, counsel relied on paragraphs 16 – 21 of the witness statement on oath of CW1, and then submitted that the Claimant has from the foregoing proved its claim for general damages on balance of probabilities.

 

[17] Counsel relied on the case of UBN PLC vs. CHIMAEZE (2014) 33 WRN 1 @ Page 28, and submitted that general damages need not be specifically pleaded and strictly proved. It is awarded at the discretion of the Court and the quantum of damages awarded at its discretion, based on the evidence before the Court. That by the evidence of CW1, particularly paragraph 24, it will be impossible for the Claimant to do a proper reconciliation of account on Claimant’s projects handled for Dangote cement and of the Joint Venture, without the return of files, disks and other documents taken away by the Defendant. Counsel urged the Court to award sum of N2 Billion (Two Billion Naira) damages against the Defendant, for his oppressive and aggressive acts which have caused colossal damages to the Claimant. He submitted that from the evidence adduced before the Court, the Claimant on balance of probability proved its entitlement to a favourable judgement of this Court regarding the claims as per paragraphs 26 (a), (b) and (c) respectively.

 

[18] Further relying on OSIBAKARO D. OTUEDON & ANOR vs. AMBROSE OLUGHOR & ORS (1997) 7 SCNJ 411, G.S. PASCUTTO vs. ADECENTRO NIGERIA LIMITED (1997) 12 SCNJ 25, amongst others, counsel urged the Court to rely on the unchallenged evidence of the Claimant and enter judgement in its favour, seeing that the Defendant did not enter appearance and also failed to file statement of defence.

 

[19] Regarding the claim for 10% post judgement interest, counsel relied on Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, in urging the Court to award 10% interest on the judgement debt from date of judgement until final liquidation. Counsel further relied on Section 132 Evidence Act 2011 (As amended), and reiterated that the Claimant has proved its case on balance of probabilities. He then further urged the Court to enter judgement in Claimant’s favour as per its claims before this Court.

 

DECISION

 

[20] I have read the entirety of processes filed in this action, evidence led in support and submissions of Learned Counsel to the Claimant and distilled this sole issue for determination to wit; “whether or not the Claimant has proved its case to entitle it to its reliefs in this suit”

 

[21] The crux of the Claimant’s case is that the Defendant who was once and Executive Director in the Claimant’s office had upon his exit from the Claimant’s employment, carted away Claimant’s vital documents, particularly on projects handled by the Claimant for Dangote Company and ZB Joint Ventures Limited, which has made it impossible for reconciliation of accounts and for the Claimant to claim its entitlements on the said projects.

 

[22] This suit is undefended as the Defendant did not file any defence. By OKEOBOR vs. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444 @ 473, in such circumstances, the averments in the Claimant’s pleadings are generally deemed admitted. However, admission does not dispense with the Claimant’s duty to prove his case by credible evidence. It is settled law that the burden of proof rests on the Claimant, who must prove his case by credible evidence and cannot rely solely on the weakness of the Defendant’s case. In other words, the failure of a Defendant to file a defence does not relieve the Claimant of the primary burden of proof. See ATUNWA vs. LADENIKA (1998) 7 NWLR (PT. 557) 221 @ 228-229.

 

[23] It is also settled that where evidence before the Court is unchallenged, the Court is duty-bound to accept and act on it, as it constitutes sufficient proof of the Claimant’s case. In such circumstances, the onus of proof is discharged on minimal proof, since there is nothing on the other side of the scale. See MOBIL OIL (NIGERIA) LTD vs. NATIONAL OIL & CHEMICAL MARKETING CO. LTD (2000) 9 NWLR (PT. 671) 44 @ 52. Even so, the Claimant herein will not be entitled to judgment in its favour merely because the Defendant failed to enter a defence. The Court will only be bound to accept unchallenged evidence of the Claimant if it were cogent and credible. See AREWA TEXTILES PLC vs. FINETEX LTD (2003) 7 NWLR (PT. 819) 322.

 

[24] A careful examination of the Claimant’s pleadings and the evidence adduced in support, do not show or even reveal any of such projects alleged to have been handled by the Claimant for Dangote Company and ZB Joint Ventures Limited, or even any correspondences between the parties in that regard, showing role played by the Defendant, which necessitate this action and claims thereof against the Defendant. Again, it is observed that Exhibit C2 contains allegations of gross misconduct and abuse of office against the Defendant, without further evidence to support allegation of diversion of Claimant’s funds by Defendant and how that has caused Claimant’s disqualification from being awarded ELPS Midline Compressors project.

By evidence of CW1, the Defendant had the responsibility to report the activities of the Joint Venture to the Claimant periodically, to keep the Claimant abreast of the happenings in the Joint Venture. It is the further evidence of CW1 that the Defendant as the former Executive Director of the Claimant, oversaw Claimant’s projects implementation and was Claimant’s representative in the Joint Venture, and in a position to know the happenings thereof. See paragraphs 7 & 8 of Witness Statement on Oath of CW1. There were however, no such documentary evidence to support these assertions.

 

[25] The position of the law remains that the burden of proof in civil proceedings lies on the person who would fail if no evidence at all is given. It is he who asserts that must prove and whoever desires judgement in his favour must establish his case on preponderance of evidence. The Claimant has failed to prove his claims in this suit against the Defendant, and its reliefs 1, 2 and 3 are hereby refused. The Claimant must lead credible and legally admissible evidence in order to succeed. See NITEL vs. OKEKE (2017) 9 NWLR (PT.1571) PAGE 439 @ 462 PARA G – H, ONOVO vs. MBA (2014) 14 NWLR (PT.1427) 391 @ 414 PARA A – B, Sections 131, 132 and 133 Evidence Act 2011(As amended).

[26] Regarding the claim for General Damages as per relief 4 of the Claimant, it has equally failed to prove by any credible evidence that the Defendant was indeed in custody of its vital documents needed for reconciliation of its accounts, which has caused Claimant damages claimed against the Defendant in this suit. Hence, the absence of such evidence would not entitle the Claimant to the claim for damages.  I so hold.

 

[27] The law remains that a plaintiff must succeed in establishing the claim vis-à-vis the relief thereof. Where a plaintiff fails to prove the claim with some credible evidence, the relief for damages must naturally fail. The award of General Damages is at the discretion of the Court, and the measure of General Damages is awarded to assuage such a loss which flows naturally from the Defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. It is presumed to be the direct and probable consequence of the act complained of, and generally incapable of exact calculation. Hence, the quantification of general damages in terms of money is a matter for the Court. Seeing that the Claimant in the instant case, failed to establish the loss caused him by the Defendant’s wrongful act, it cannot be entitled to its claim of N2, 000, 000, 000.00(Two Billion Naira) damages against the Defendant. I so hold. Consequently, the claim is rejected. See AKAOLISA vs. AKAOLISA (2022) 13 NWLR (PT.1848) 487 SC., ELF PETROLEUM vs. UMAH (2018) 10 NWLR (PT. 1628) 428.

 

[28] Regarding the claim for 10% interest on judgement sum as per relief 5, this is refused, seeing that the Claimant has failed in all its claims in this action. He cannot be entitled to interest on judgement sum. I so hold.

 

[29] Hence, against the backdrop of the above postulation, the sole issue is hereby resolved against the Claimant. The suit is also dismissed for lacking in merit.

 

[30] Judgment is hereby entered accordingly.

 

 

HON. JUSTICE R.B. HAASTRUP

JUDGE