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Industrial Court dismisses alleged malicious prosecution claim against Construction firm

216 Friday 6th August 2021

The Presiding Judge, Yenagoa Judicial division of the National Industrial Court, His Lordship, Hon. Justice Bashar Alkali has dismissed the case of alleged malicious prosecution and reinstatement claims filed by one Bernard Benemone against Setraco Ltd for lack of proof.

The court held that it is not enough to make allegations of malicious prosecution without proving same, that the firm having laid a formal complaint to the Police based on the incident which occurred on the 31st May 2012 as a result of theft within its premises has no coloration of malice.

From facts, the claimant-Bernard Benemone had submitted that he was employed as a Security Personnel of the firm and averred that he was arrested in 2012 with four other persons for an alleged case of conspiracy that at the quest of the CSO of the firm, they were charged, discharged and acquitted on the 10th day of October 2013. 

He averted that after the court case, the firm agreed to reabsorb him and the four colleagues but started foot-dragging when he demanded his entitlement while the case lasted. He sought for reinstatement and the sum of Seventy Two Million, Nine Hundred and Fifty-Seven Thousand, Thirty-Two Naira only as specific damages for malicious prosecution amongst others.

Under cross-examination, he stated that he started working with the firm on 4th August 2010 but cannot remember his staff number that his staff I.D was destroyed when his house was flooded, that he was not paid the same amount every month, and the firm used to pay them through table payment but started paying them their salaries through bank after the incident. 

In defense, the defendant- Setraco Ltd submitted that Bernard as a casual employee was not given an Employment Letter, Condition of Service, or Identity Card of the Company neither does he have a Staff Number and is not entitled to any form of allowance or any form of financial benefit.

The Learned counsel to the firm, I. Onyeanwu Esq with C.C. Dim Esq submitted that the bernard was not able to establish by any iota of evidence that the firm maliciously prosecuted him and did not state before the court in any way where the firm insisted on his prosecution against any finding by the Police that he was innocent or not on night duty.

Learned counsel contended that it is clear from the evidence above that the Claimant was not a regular staff and that was why he had no basic and regular salary as his wages depend on the number of days he worked in a month and more so as all the months do not have an equal number of days, urged the court to dismiss the case.

In opposition, Learned counsel to Bernard, Collins Akebofa Esq argued that the firm did not deny being in possession of counterpart copies of his client employment documents but failed to bring them before the court despite the notice to produce same, urged the court to hold that the Claimant has led sufficient evidence to dislodge any suggestion, insinuation or assumption that he is a casual staff and to grant all the reliefs as can be seen from his statement of claim.

Delivering the judgment after careful evaluation of the submission of both parties, the presiding judge, Justice Bashar Alkali held that Bernard Benemone  was not able to establish any case of malicious prosecution against the firm, that the fact that Bernard's was discharged for the offense charged cannot set the law in motion against the firm. 

Furthermore, on the claim for 52 million naira specific damages, the court held that the claims fall under the terms of the contract and the claimant has failed to plead the terms of the contract which he has with the defendant and also failed to tender any document to aid the court to arrive at a just decision as the court cannot speculate on the terms of the contract between the parties.  

On the claim for entitlement, Justice Alkali says thus: 

“looking at the claims of the Claimant there is nowhere in the claims where the Claimant prays for the payment of these entitlements. And this court is not a father Christmas to give a Claimant relief not sought. Therefore that aspect of the case of the Claimant is hereby discountenanced.”

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