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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HON. JUSTICE JOYCE A. O. DAMACHI

            

DATE: 27th NOVEMBER 2025                      

SUIT NO: NICN/LA/262/2023

 

BETWEEN:

 

MELVIN – JOHN 0.  ODILI                                        CLAIMANT     

            

AND

 

  1. WALTER SOLUTIONS DWC-LLC 
  2. SEBASTIAN WALTER                                     DEFENDANTS

 

 JUGEMENT 

  1. INTRODUCTION 

By a General Form of Complaint dated and filed 07. September 2023 the claimant seeks the following reliefs:

  1. The sum of EU 46,925.00 (Forty – Six Thousand Euros) being the sum due to the Claimant as earned commissions for sales as at January 2023.
  2. The sum of USD 6,000.00 (Six Thousand United States Dollars) being the Claimant’s unpaid salaries for February and March 2023.
  3. Interest on the sum of EU 46,925.00 (Forty – Six Thousand Euros) and the sum of USD 6,000.00 (Six Thousand United States Dollars) at the rate of 21% per annum from the 31st March 2023 until judgment is delivered and subsequently at the rate of 18% per annum from the date of judgment until final liquidation. 
  4. The sum of EU 16,000.00 (Sixteen Thousand Euros) being the sum due to the Claimant as earnings for stock gaps for sales as at January 2023
  5. The sum of N2,000,000.00 being the cost and expenses incidental to these proceedings incurred by the Claimant.

 

CLAIMANTS CASE  

2. The claimant a Nigerian citizen was employed by the defendant as a regional sales manager based/resident in Lagos on 02 April 2021 to market and sell BBM Extrusion Blow Molding Equipment across West Africa. He was put in charge of the following markets:

a. Phase 1: Nigeria and Ghana 

b. Phase 2: Senegal, Ivory Coast, Cameroon. 

 

3.Claimant avers that the 1st defendant (based in Dubai, UAE) is an authorized agent of BBM Maschinenbau GmbH (Germany), while the 2nd defendant is its General Manager and the Claimant’s immediate supervisor, that his salary and commissions were denominated in US Dollars  and EUROS, and communication between the parties was mainly through email. His remuneration package included: 

  1.  Salary of USD 3.000,00 per month culminating in USD 36,000.00 per annum.
  2. 0.5% commission on machine sales and 
  3. 20 days paid vacation per annum.

 

4. By a notice of resignation dated 03.January 2023 effective on the 31.March 2023. Claimant avers that even though he worked from January to March his salaries for February and March (USD 6,000 total) were withheld but he admits that he was paid for January 2023. The defendant also failed to pay:

  1. €46,925 – commissions for prior year sales (already admitted via email);
  2. €15,000 – “stock gap” performance incentive (also acknowledged by the defendant

5. The Claimant’s efforts and that of his counsel (via demand letter dated August 2, 2023) to recover these sums were ignored. Instead, the Defendants allegedly made false allegations of fraud and breach to avoid paying him.

6. Claimant tendered 8 No documents to be used at the trial which were admitted and marked as Exhibits C1-Exhibits C8  

  • Exhibit C1 -    Employment agreement dated April 02, 2021
  • Exhibit C2 – Email trail dated March 18 – 21, 2023
  • Exhibit C3 -    Notice of Resignation dated January 03, 2023
  • Exhibit C4 – Email trail dated March 7 – 9, 2023
  • Exhibit C5 - Email trail dated January 9 – 29, 2023 
  • Exhibit C6 – WhatsApp message and Email dated November 23,2022
  • Exhibit C7 -    Claimant Counsel Letter dated August 3, 2023
  • Exhibit C8 – email trail dated 25th February to 15th March 2023.

 

7. On commencement of proceedings, the Defendants did not enter appearance and did not participate in the trial proceedings, defendants were duly served with all the processes and hearing notices. 

8. The Claimant, as CW1 adopted his written deposition on oath dated the 7th day of September, 2023 on 16.October 2024 as his testimony/evidence in this case and WAS NOT cross-examined by the Defendant’s counsel. On the application of counsel to Claimant, the defendants were foreclosed and CW1 discharged from the witness box on the 25th February 2025. 

The records of the proceedings of the Court bear it out that several adjournments were granted to enable the defendants file   their defense and cross-examine the Claimant, the Defendants were served with hearing notices with respect to the scheduled hearing dates, in spite of the adjournments, the Defendants failed to avail the opportunities to defend the case. The Court foreclosed the Defendant from its defence and adjourned for adoption of written addresses.

CLAIMANT’S FINAL WRITTEN ADDRESS

9.   THE SOLE ISSUE FOR DETERMINATION

Whether in all the circumstances of this case, the claimant has by cogent and credible evidence established his entitlement to the reliefs claimed in these proceedings and

 

LCC submitted that in civil cases, the party seeking judgment (usually the claimant or plaintiff) bears the burden of proof. This means they must state and prove the facts that establish their legal right, the breach of that right, and the defendant’s liability, using relevant and admissible evidence. He cited Section 131(1) of the Evidence Act, 2011 and the Supreme Court’s decision in NWAVU v. OKOYE (2008) LPELR-2116 (SC), to the effect that the burden of proof lies on the party who makes an affirmative claim or who would fail if no evidence were presented. He submitted that while the plaintiff usually bears this burden, it can shift to the defendant depending on the pleadings and circumstances of the case.

 

10. The Claimant, who alleges that the Defendants owe him money arising from his employment, bears the initial burden of proof to show, through credible and admissible evidence, that the Defendants are indeed indebted to him. Although the burden of proof in civil cases can shift between parties, the Claimant must first establish a prima facie case. 

 

11. He referred the court to S.131 Evidence Act which provides that     Whoever desires a court to give judgment in their favor based on certain facts must prove that those facts exist;  When a person is required by law to prove the existence of a fact, the burden lies on that person; the burden of proof shifts as the case progresses — once one party produces enough evidence to establish a fact, the burden may move to the other party to disprove or counter it.

 

12. WHILE admitting that it is the Claimant who must first provide sufficient proof to establish, with credible and admissible evidence the fact that the defendants owed the amount claimed.

In support of his claim, CW1 (the Claimant) testified about the nature of his employment, his annual gross earnings (Exhibit C1), and his positive working relationship with the Defendants, evidenced by commendations (Exhibit C6). He further stated that after he resigned properly according to the terms of his employment (Exhibit C3), the Defendants allegedly failed to pay his salaries for February and March 2023 (Exhibit C2).

 

13. The Claimant, in addition to Exhibits C1 and C3, tendered Exhibit C4, which reflects the Defendants’ admission of the outstanding entitlements owed to him before his resignation. The amounts claimed include: €46,925 as earned commissions for the previous year (Exhibit C5), $6,000 as unpaid salaries for February and March 2023 (Exhibit C2), and €16,000 as “stock gaps,” a performance incentive (Exhibit C5).

 

 

14. LCC submitted that CW1 also testified that the Defendants attempted to have his visa revoked (Exhibit C8), and when negotiations failed, the Claimant’s counsel made a formal demand for payment (Exhibit C7).

 

15. The Claimant’s exhibits (particularly C2 and C7) demonstrate repeated demands for payment, establishing strong proof of the Defendants’ indebtedness. Consequently, the burden of proof on the Claimant has been satisfactorily discharged based on the preponderance of evidence.

 

16. Furthermore, since CW1 was not cross-examined by the Defence to test his veracity by Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 and Oforlete v. State (2000) 12 NWLR (Pt. 681) 436, failure to cross-examine a witness on material facts implies acceptance of the witness’s testimony, and the court is entitled—indeed bound—to rely on such unchallenged evidence if it is credible.

 

17. LCC argued that due to the defendants' failure to provide a defense or evidence to counter the claims notwithstanding the fact that they had the opportunity to defend the case, having been served with all the processes, they are deemed to have accepted the Claimants case.   The Claimant having met the requirements of the law is entitled to the claims. He cited MATA v. KANO STATE PUBLIC COMPLAINTS & ANTI CORRUPTION COMMISSION & ANOR, (2023) LPELR – 60503 (C A), to support the decision that a defendant who fails to defend a suit is deemed to have admitted the claims.

                                                                                                 

 

COURT DECISION 

18. The legal implication of the failure of the Defendant to call evidence in defence of the claims is that the Defendant is presumed to have admitted the case made against it by the Claimant. See: Okoebor Vs Police Council [2003] 12 NWLR (Pt 834) 444; Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd [2006] 8 NWLR (Pt. 983) 585

19. The law however is that this does not, on its own, translate to automatic victory for the Claimant against the Defendant. This is because a Claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a Statement of Defence or evidence by the Defendant does not exonerate the responsibility on a Claimant to prove his claim. Harka Air Services Ltd Vs Keazor [2006] 1 NWLR (Pt. 960) 160; Ogunyade Vs Oshunkeye [2007] 15 NWLR (Pt 1057) 218.

20. It is a universal evidential principle that he who asserts proves his assertion; he who claims proves his claim. It is needless to cite authorities for this well known principle. 

21. To establish that he was an employee of the Defendant, the Claimant in his testimony referred to his letter of offer of appointment, Exhibit C1 - Employment agreement dated April 02, 2021. A cursory look at the employment agreement indicates that it was endorsed by both parties with a commencement date of 26.04.2021. it contains 14 sub heads ranging from the position; place of work; Responsibilities; Markets; contract start date; salary; commission; medical insurance; holidays; Termination; outside employment; Competition after leaving the company; confidentiality & other Agreements. From the email trails exhibited   by the claimant, such as exhibits C2; C4; C5 there is ample evidence that the claimant was in the employment of the defendant and in Nigeria Airways V Gbajumo (1992) 5NWLR 244 @ 735 the court held that where one party employs another, appoints him to various positions in its establishment, pays him salary and allowances, these acts constitute sufficient fact from which a contract of employment can be inferred. I so find.

 

22. The claimant is before this court seeking the sum of EU 46,925.00 (Forty – Six Thousand nine hundred and twenty five Euros ) being the sum due to the Claimant as earned commissions for sales as at January 2023. The Claimant avers in para 6 of his SOF that as at January 2023 when he submitted his resignation letter he was entitled to the sum of EU 46,925.00   being the sum   earned as commissions for sales in the previous year.  According to him, the sum is already admitted and agreed to in the email trail dated January 9-29 2023 which was marked as Exh C5.  

 

23. Terms and conditions of contract of service are the bedrock of any case and should therefore be pleaded. In   Cory Lighterage V T & GWU (1973) 2 ALL ER 558 the court held that it is usual to speak of the terms and conditions of employment which are part of every contract of employment. Terms of employment are bilateral that is, there are part of the agreement made between the employer and the employee  and terms of employment can be found in all agreements whether express or implied.

 

24. It is also trite law that parties are bound by their terms of contract of employment, particularly where the terms are clear and unambiguous see UBN Plc V  Soares (2012) 11 NWLR (pt 1312)550 CA.  

In the instant case, Exh C1, the Employment Contract has in Sub-Head 7

 

“COMMISSION: 0.5% of all machine sales value (unless mutually agreed otherwise),

a.Equipment Value EUR3mio= Commission EUR15,000

b. Equipment Value EUR 5mio=commission EUR 25,000.

This term of the contract provides for commission as shown above, the claimant is relying on the email trend to justify his claim what the court noted fron the said email tread is that on Monday 9th January 2023 10.31PM the defendant Sebastian Walter sent a mail to the claimant and Bernard Schuite   was copied and the subject of the email was “Commission”. The message was:

 

Hi Melvin 

 

Please find below overview

Ardova-49329-EUR1.000---(goods value EUR200.000---)

TGI-49610-EUR9.175,--(goods value EUR 1.835.000--)

AA Rano 49357-EUR1.575,---(goods value EUR 315.000,--) –as per original work contract excluded, will however be included tentative(not all cost confirmed)

 

Ardova-50300 –EUR 16.000,---(based on goods value EUR 3,2 mio)

Huilerie-50066-EUR9.625,--(based on goods value EUR1,925mio)

Huilerie-50069-EUR9.550—(based on goods value EUR1,910mio)

 

Best Regards, 

Sabastian.

 

25. The follow up mail was from the claimant on 10 January 2023 07:25 to SEBASTIAN WALTER and copied to BERNARD SCHULTE 

 

Dear Sebastian, Dear Bernard,

Thanks for your feedback. I had assumed that I was also entitled to some commissions for stockgap also? 

Best Regards 

Melvin 

 

In response, Sebastian Walter replied same day 10th January 2023 10.54:43 AM and copied Bernard Schulte:

 

Hi Melvin,

My apologies, I forgot stockgap in the list, will update this afternoon.

Best regards

Sebastian

 

26. It is evident before this court that the claimant has been able to establish that he was entitled to commission as agreed by parties in the employment Agreement in Exh C1 and in Ex C5 going by the email trail, the defendant in the person of the 2nd Defendant admitted to the fact that the claimant is entitled to  commission in the sum of EUR 46.925.00 (ie. EUR 1.000 + 9.175+1.575+ 6.000+ 9.625+ 9.550 = EUR 46.925). this is the finding of the court. Relief 1 succeds I so hold.

 

 

27. The 2nd Relief is for the sum of USD 6,000.00 (Six Thousand United States Dollars) being the Claimant’s unpaid salaries for February and March 2023.

The Claimant in his SOF averred that his remunerations and salaries were denominated in United States dollars and Euros.   That after he served the defendants his 3 months’ notice period prior to Resignation dated January 03, 2023 in compliance with employment contract. He was paid salary for the month of January 2023 only, and was told to offset the February salary with the monthly expenses for the month which did not cover the entire salary, that the defendants did not make up the shortfall whereupon the Claimant informed the defendants via email that he will not be available to carry out any tasks in so far as his salary was not paid.  

 

28. Going by the employment contract Exh C1 in sub head 6, 

“SALARY: USD 3.000-per month, the salary is paid at the end of the month. 12 monthly salaries p.a…”. 

 

Claimant admitted that January salary was paid and by his averment, he was informed by the defendant to offset the February salary with the monthly expenses for the month which did not cover the entire salary.

The claimant failed to inform this court on the specific amount that was given to him for monthly expenses. Exh C1 has established the fact that 3.000 USD was his monthly salary. However in para 5 of his SOF, claimant  stated that the defendants did not make up the shortfall whereupon the defendants were informed that he would no longer carry out task if he was not paid. The import of this statement is that monthly expenses was paid to the Claimant and he was instructed to use that to offset his February salary, if the claimant maintains that defendant did not make up for the shortfall, then going by commonsense, some amount was paid to take care of the February salary. The said amount for reasons best known to the claimant was not disclosed to the court.

 

29. The courts have always frowned and maintained that the court cannot speculate on facts see the dictum of EKPE,J.C.A in ARU & ORS V. OHAFIA LINE SERVICES LTD (2014) LPELR-23158(CA) "In the case of ADISA vs THE STATE (1991) 1 NWLR (Pt. 168) 490, the Supreme Court held that what a Court of law should do is make use of the available materials before it, and in this context, the affidavit evidence and come out with some figure which it thinks will satisfy the justice of the case. A Court can only give that much that the evidence at its disposal proves. After all, a Court cannot speculate or conjecture possible facts not before it or dabble into or flirt with facts not before it. See also the cases of EKPENYONG Vs NYONG (1975) 2 SC 71; UNION BEVERAGES LTD Vs OWOLABI (1998) 1 NWLR (Pt. 68) 128."   

 

30. In the light of the above, this court is not convinced in the instant case that  the salary for February was not paid, some amount was paid as admitted by the claimant by his testimony. It is settled principle that a claimant's evidence must be credible and reliable, and must be presented in a clear and convincing manner. The claimant typically bears the burden of proof, which means they must prove their case on a balance of probabilities (in civil cases). To the mind of this court, the claimant has failed by his own testimony to discharge that burden of proof: therefore this court shall decline to grant the first part of the relief which is for 3.000 USD for February 2023 salary. I so find and hold. 

 

31. With regards to the 2nd arm of Relief 2, which is for 3.000 USD as salary for March, parties are bound by the terms of their agreement, Exh C1 clearly provides that claimant’s salary shall be 3.000 USD, the claimant has maintained by his testimony that it was not paid and he informed the defendant that he would no longer carry out task for him if he is not paid his salary. this relief succeeds in part and the claimant is entitled to 3.000 USD for March 2023 ONLY. I so hold.

 

32. The 3rd Relief sought is for Interest on the sum of EU 46,925.00 (Forty – Six Thousand nine hundred and twenty five Euros) and the sum of USD 6,000.00 (Six Thousand United States Dollars) at the rate of 21% per annum from the 31st March 2023 until judgment is delivered and subsequently at the rate of 18% per annum from the date of judgment until final liquidation.  

 


33. In Skymit Motors Limited V. United Bank Of Africa PLC [2021]5NWLR123 On Distinction between pre-judgment interest and post judgment interest –the SC held that Pre-judgment is simply a judgment reached before evidence is available. If the claim is for money, the claimant may claim interest up until the date the judgment is given, and that is pre-judgment interest. There is a clear difference between an award of interest pre-judgment, where a plaintiff must specifically claim such and prove it, and award of interest on a judgment-debt, which is purely statutory, and can only be awarded if there are provisions to that effect in the law or rules of court. [Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR((Pt. 122) 422; Berliet (Nig.) Ltd. v. Kachalla (1995)9 NWLR (Pt. 420) 478 referred to.] (P. 145, paras.D-F)

34. It was Rhodes-Vivour JCA (as he then was) relying on Ekwunife v. Wayne (W.A) Ltd (1989) 5 NWLR (Pt. 122) 422; Texaco v. Pedmar (Nig). Ltd. (2002) 13 NWLR (Pt. 785) 526; Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. (1970) 1 All E.R 225 and A.B. Kemp Ltd. & Ors v. Tolland (1956) 2 Lloyds List Report 681 in P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt. 1055) 478 at 500 who took time out to espouse on the position of the law on the vexed issue of pre-judgment interest in the following words -

            ''When actions are brought on Commercial matters, the courts usually find that  money ought to have been paid sometimes ago. In such cases, it ought to carry   interest and that is pre-judgment interest. The time, pre-judgment, when it would  start to run depends on evidence. The basis of such an award is that the defendant had kept the plaintiff out of his money, and the defendant has had the    use of it for himself, so he ought to compensate the plaintiff accordingly''.

 "The general rule at common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, pre judgment interest will, be payable where there is an express agreement to that effect and such agreement may be inferred from a course of dealing between the parties or where an obligation to pay interest arises from the common practice or usage of a particular trade or business - Alfontrin Ltd Vs. Attorney General, Federation (1996) 9 NWLR (Pt 4750) 634, Diamond Bank Ltd Vs. Partnership Investment Co Ltd (2009) 18 NWLR (pt 1172) 67. 

35. Consequentially, a plaintiff, in order to succeed in a claim for pre judgment interest, must show how the entitlement to such interest arose, that is whether by law, by contract or agreement or he must plead facts showing that the claim is part of the loss or special damages which the defendant's wrong imposed on him. It is not enough to merely say that the plaintiff is claiming interest. The basis of the claim of interest must be made manifest on the pleadings - Ekwunife Vs. Wayne (W.A.) Ltd (1989) 2 NWLR (pt 122) 422, Sani Abacha Foundation for Peace & Unity Vs. United Bank for Africa Plc (2010) 17 NWLR (pt 1221) 192." Per ABIRU, J.C.A.(P. 26, paras. A-G).

36. In the light of the foregoing authorities, it is without doubt that the Claimant presented no scintilla of proof that there is either an agreement for 21% interest or statutory provision imposing the payment of the said interest on the sum awarded to the Claimant in RELIEF 1 ABOVE as pre-judgment interest. Consequently, the Claimant is not entitled to pre-judgment interest and same is accordingly refused.

37. With regards to post judgment interest on the other hand, 18% per annum from the date of judgment until final liquidation.   I take into cognizance the provision of the rules of this court which by Order 47 Rule 7 stipulates that the Court may at the time of delivering judgment or making the order, give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum. 

 

38. RELIEF 4 is for the sum of EUROS 16,000.00 (Sixteen Thousand Euros) being earnings for stock gaps for sales as at January 2023. In para 8 of the SOF, Claimant states   that he is also entitled to remuneration called Stock gaps which is given to him as a performance enhancement incentive. That the defendants acknowledged that he is entitled to the same in the several emails exchanged with the 2nd defendant. In Ehx C5, there is an acknowledgement by the defendant that the claimant is entitled to stock gap  in his email of 10th January 2023 10.54:43 AM and copied Bernard Schulte:

 

Hi Melvin,

My apologies, I forgot stock gap in the list, will update this afternoon.

Best regards

Sebastian

The court noted that parties are in agreement that claimant is entitled to stock gap going by the Claimants reminder that it should be included in his calculated entitlements and the defendants acknowledgement. However, both parties were silent on the specific amount and how it was calculated. What the court has before it is   just a blanket  acknowledgment that the claimant is entitled to Stock gap. In view of this, this court declines to award the EUROS 16,000.00 (Sixteen Thousand Euros) being sought as earnings for stock gaps for sales as at January 2023. I so hold. Relief 4 fails and it is dismissed.

 

39. The 5th Relief is for the sum of N2,000,000.00 being the cost and expenses incidental to these proceedings incurred by the Claimant. Cost and expenses incidental to this case is assessed at N400 thousand Naira. I so hold 

 

40. All sums awarded in this judgment is to be paid within 30 days of this judgment failing which it shall attract 10% simple interest per annum.

41. Judgment is accordingly entered.

 

Hon Justice Joyce Agede Damachi 

Judge 

 

 

 

Chinwe Anyawu Esq (Holing the brief of Hanacho Alozie Esq) for the Claimant 

Defendants not represented