Dr. Francis Patrick Udomah -VS- University of Calabar Teaching

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALBAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: 8^TH NOVEMBER, 2018 SUIT NO: NICN/CA/45/2015

BETWEEN

DR FRANCIS PATRICK UDOMAH ………….. CLAIMANT

AND

UNIVERSITY OF CALABAR TEACHING HOSPITAL
MINISTRY OF FINANCE INCORPORATED DEFENDANTS
THE ATTORNEY GENERAL AND MINISTER OF JUSTICE

REPRESENTATIONS

JAMES IBOR Esq. for the Claimant

NKOYO OROK IRONBAR Esq. for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a General Form of Complaint dated and filed 7^th October, 2015.

The reliefs sought by the Claimant are:

A DECLARATION that the Claimant having been diligently in the employment of the 1^st Defendant until lawful retirement on 8^th July, 2015 following his 35years of meritorious service is entitled to payment of all his earned salaries, approved expenses and allowances.
A DECLARATION that the failure and refusal of the Defendants to pay the Claimant his monthly salaries and allowances for the months of April, 2015, May, 2015, June, 2015 and July, 2015 and approved expenses is unlawful, malicious, illegal and unjustifiable.
AN ORDER directing the Defendants to pay to the Claimant the sum of N2,974,373.32 (Two Million Nine Hundred and Seventy Four Thousand Three Hundred and Seventy Three Naira Thirty Two Kobo) being Claimant’s salaries for the months of April, 2015, May, 2015, June, 2015 and July, 2015, approved expenses and earned allowances for the year 2012, 2013, 2014 as follows:

Gross salaries …………………………………………. N1,838,183.32
2014 Responsibility Allowance ………………………. N260,000.00
Responsibility Allowance for the months of
January, 2015 – July, 2015 …………………………… N140,000.00
April, 2012 Approved Duty Tour Allowance (DTA) .. N191,800.00
April, 2013 Approved Duty Tour Allowance (DTA) .. N202,890.00
Sept, 2013 Approved Duty Tour Allowance (DTA) .. N181,150.00
Oct, 2014 Approved Duty Tour Allowance (DTA) .. N160,350.00

Three Hundred and Fifty Thousand Naira (N350,000.00) only being professional fee to bring this suit.
General Damages to the tune of N5,000,000.00 (Five Million Naira) only for the excruciating difficulties and psychological trauma the Defendants have subjected the Claimant to for no reason whatsoever.

SUMMARY OF FACTS

The Claimant was an employee of the 1^st Defendant until his retirement on July, 2015 after putting in 35 years of service. Before his retirement, Claimant was owed the salaries of April, May, June and July, 2015 as well as other responsibility allowances and DTA allowances, which are still left unpaid. Claimant is hereby desirous of the money owed him as monthly salaries, Responsibility Allowances and Duty Tour Allowances left unpaid as well as damages.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 5^th of October, 2017 when the Claimant opened their case by calling the Claimant himself as CW1 and he adopted his witness statement on oath. He was lead by his Counsel and also tendered exhibits in support of his case. Thereafter, the case was adjourned to14th November, 2017 to enable the Defendants cross examine CW1. It must be noted that on the said date of 5^th October, 2017, Counsel to 1^st Defendant, N.B Olaitan Esq of Orok Ironbar & Assocciates applied that they be discharged from further appearing for the 1^st Defendant. He was accordingly discharged. It must be noted further that apart from a Memoranda of Appearance filed by Counsel to 1^st Defendant in this suit, there was no Statement of Defence filed by the 1^st Defendant. On the next adjourned date of 14^th November, 2017, Defendants were not present nor was there any legal representation. Counsel to Claimant applied that Defendants be foreclosed. However, in its wisdom, the Court was minded to adjourn the matter one more time to enable Defendants cross examine CW1. The Court also ordered further hearing notice to be served on the absent Defendants. The case was therefore adjourned to 18^th January, 2018. On the said date of 18/02/18, one I.A Ewa (Mrs) who identified herself as Senior Legal Officer of the 1^st Defendant was in Court to represent the 1^st Defendant. The Court was then informed that out of Court settlement was ongoing. Thereafter, the case was adjourned to 20^th March, 2018 for Report of Settlement. On 20^th March, 2018, Defendants were not in Court nor was there any legal representation. Case was further adjourned to 9^th May, 2018. On 7^th June, 2018 when this case was called up, Counsel to Claimant informed Court that settlement had broken down and asked Court for a date to enable them file, serve and adopt their final written address.

Thereafter, Claimant filed, exchanged and adopted his final written address.

CLAIMANT’S FINAL WRITTEN ADDRESS.

In Claimant’s final written address dated 13^th July, 2018 and filed same day, Learned Counsel on behalf of Claimant formulated a sole issue for determination, that is:

Whether the Claimant is entitled to the reliefs endorsed in his Complaint and Statement of Facts filed on the 7^th of October, 2015 having not been denied or controverted.

ARGUMENT

Learned Counsel submitted that the case of the Claimant having not been challenged or controverted, the Court should deem same to be true. He refered Court to Visafone V. Onamusi (2016) LPELR-41444 (CA) where it was held:

I agree with the decision of the learned trial Court. The case of the Respondent was undefended; the Appellant took no steps to have it set aside. The Supreme Court, per Niki Tobi, JSC held in Okorbor V. Police Council & Ors (2003) 12NWLR Pt. 832 @444 that the basic principle of law is that where a Defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim..

It is the submission of Learned Counsel that Claimant having tendered sufficient documents in proof of his case makes the balance of probability tilt in his favour. On preponderance of evidence and balance of probability, he relied on Nduibisi V. Olowoake (1997) 1NWLR (Pt.479) 62 @para. A; Sabon-Gida & Anor V. Dan-Namashi & Ors (2016) LPELR-41207(CA).

On general damages, Learned Counsel submitted that Claimant having proved his case is entitled to general damages. He relied on Afolabi V. Ola (2016) LPELR-40186 (CA) where it was stated thus:

The law regarding to general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be specifically pleaded and strictly proved. In other words, general damages are compensatory damages for halm resulting from the tort for which the party was sued. See the cases of UBN Plc V. Ajabule (2001) 18NWLR (Pt.1278) 152SC; Husseni V. Mohammed (2015) 3NWLR (Pt.1445) 100….

Learned Counsel therefore urged the Court to grant the reliefs sought by the Claimant.

COURT

Having gone through the Claimant’s case and after evaluating the evidence before me as well as having read through the final written address of Claimant before me, this Court has distilled a sole issue for the just determination of this suit, that is:

Whether from the facts and circumstances of this case, the Claimant has proved his case to be entitled to the reliefs sought

Generally, civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The party whose evidence is heavier succeeds in the case. See Dr Useni Uwah & Anor V. Dr Edmundson T. Akpabio & Anor (2014) 2MJSC (Pt.11)108 @113. The success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. See Ramonu Rufai Apena & Anor V. Oba Fatai Aileru & Anor (2014) 6 – 7 MJSC (Pt.11)184 @ 188. It is not enough to allege the existence of facts – a party who alleges the existence of facts must lead evidence to prove that such facts exist. Therefore, in determining this case, this Court will look at each and every relief sought by the Claimant as well as evidence lead to substantiate the existence of such facts. The law is settled and the stance of the Court is that it is not in consonance with the law to say that in every case in which evidence is called in support of a Claimant’s case is unchallenged; judgment must be given in favour of the Claimant. On the contrary, it is possible that evidence called in support of a Claimant’s case even if unchallenged, may still be insufficient to sustain the Claimant’s case. See Marchem Industries (Nig) Ltd V. V.M F Kent (WA) Ltd (2005) 10NWLR (Pt.934) 654 Per Oseji JCA; Rajco V. Le Cavalier Motels & Restaurants Ltd & Ors (2016) LPELR-40082 (CA). However, where the evidence adduced by a Claimant is unchallenged and uncontroverted by the Defendant, the standard of proof required of the Claimant becomes minimal. See Odeyemi V. Nitel Plc (2009)LPELR (4982)CA; Asafa Food Factory Ltd V. Alrine (Nig) Ltd (2002) 5SC (Pt.1)P.1. Therefore, in the case herein, the Court will look at and determine how the Claimant has discharged the minimal proof required of him in the absence of defence by the Defendants.

In proof of relief 1, 2 and 3, Claimant tendered Exhibit C1, a letter from 1^st Defendant to the Claimant dated 7^th May, 2015 and titled ACCEPTANCE OF RETIREMENT. In the said Exhibit C1, it was stated among other things that management wishes to use this medium to express its deep appreciation for the 35 years of meritorious service you rendered to humanity ……..Head of pension unit are by this letter advised to stop your salary with effect from 8^th July, 2015 and to commence the processing of your retirement documents…….

From Exhibit C1, the Court has no doubt that the Claimant put in 35years of service and his retirement took effect from 8^th July, 2015. Exhibit C1 is self explanatory. Going by Exhibit C1, it is quite sad that in a letter dated 20^th July, 2015 addressed to the Medical Director of the 1^st Defendant, titled AN APPEAL FOR FINANCIAL BENEFITS – REMINDER which was tendered and admitted as Exhibit C7 before this Honourable Court, the Claimant lamented in the last paragraph of the said letter that the salary slips for the last three months of his service were needed for processing his retirement benefits and being that he was still owed salaries of four months before his retirement, it would be impossible to process his retirement benefits with PenCom. In circumstances like this, one is always forced to ask – Does it always have to end this way? Why is it that it is at the time of parting one’s shoulders and saying well done for the 35 years of meritorious service put in that the sweet orange in the mouth of the worker/pensioner suddenly turns sour? This Court wishes to state that even though this Court as a Court of law is not to be seised with sentiment or emotion, nonetheless, this Court as a Court of law, justice and equity cannot condone or encourage any act that denies anybody who has put in 35 years of service or who retires after attaining 60, 65 or 70 years of age (as the case may be) the enjoyment of peace of mind and body in this world for the remaining limited time he/she will spend before departing to the Great Beyond. Employers of labour or those who are still in active employment as well as those who control the fate of pensioners must rise up against this trend for today it is the turn of the Claimant but tomorrow it will be the turn of another person. It will suffice to say that everybody must know that what goes around comes around and what goes up must come down.

In further proof of his case, Claimant tendered Exhibit C6 which is his pay slip for March, 2015, the month he was paid last before his retirement in July, 2015. In the said pay slip, his gross salary is stated as N459,545.83 (Four Hundred and Fifty Nine Naira Five Hundred and Forty Five Naira Eighty Three Kobo) and his net salary is stated as N385,914.46 (Three Hundred and Eighty Five Thousand Nine Hundred and Fourteen Naira Forty Six Kobo). Now, before calculating the salary of the Claimant for the unpaid months of April, May, June and July, 2015 as well as comparing same with the amount claimed by the Claimant, this Court wishes to state that gross salary, simply put, is salary before deductions whereas net salary, simply put, is salary after deductions. The actual/fiscal salary paid a worker at the end of the month is net salary, that is, salary after all necessary deductions and not gross salary. Therefore, the calculation of the unpaid salaries of the Claimant for the months of April, May, June and July, 2015 should be based on what he is entitled to as net salary, and I so hold. His salaries for the months of April, May, June and July, 2015, therefore, is N385,914.46 multiplied by four equals to N1,543,657.84 and not N1,838,183.32 as claimed.

In proof of his Duty Tour Allowances (hereinafter referred to as DTA), Claimant tendered Exhibits C2, C3, C4 and C5 respectively covering approval for the sum of N191,800 as DTA April, 2012; N202,890 as DTA April, 2013; N181,150 as DTA September, 2013 and N160,350 as DTA October, 2014 respectively. As for Responsibility Allowances in the sum of N260,000.00 for 2014 and the sum of N140,000.00 for January, 2015 – July, 2015 as claimed by the Claimant, Claimant did not lead any scintilla of evidence in support of same. What is more, the law is trite that where a party fails to lead evidence in support of his pleadings, such pleadings would be deemed as abandoned. As such and as well as in the absence of evidence in support of N260,000.00 claimed as Responsibility Allowance for 2014 and the sum of N140,000.00 claimed as Responsibility Allowance for January, 2015 – July, 2015, the said two arms of Claimant’s claim touching on Responsibility Allowances are hereby deemed abandoned and same struck out.

On relief 4 on which the Claimant seeks the award of N350,000.00 (Three Hundred and Fifty Thousand Naira as being cost of professional fee paid by the Claimant to his attorney, this Court wishes to state that it is a good thing that Claimant went ahead to tender Exhibit C4 which is receipt of the professional fee paid to his Counsel for this suit. However, it is not the right of the Claimant to be refunded or awarded what he paid as professional fee nor is it the duty of the Court to enquire into what Counsel charge as professional fee. As a matter of fact, it is not in the nature of the Court to award what the Claimant expended as professional fee to the Claimant on winning the case. See Christopher U. Nnanji V. Costal Services Nig Ltd (2004) 11NWLR (Pt.885) P.552) SC; Ihekwoba V. ACB Ltd (1998) 10NWLR (571 P.590 @610 -611. Granted, the Court can award cost as a parting gift to a successful party who comported and conducted himself properly before the Court during trial but whatever is awarded as cost is at the discretion of the Court and not on the professional fee charged by attorney or Counsel to the successful party, and I so hold.

On relief 5, this Court wishes to state that given the facts and circumstances of this case, this Court is not minded to grant any sum as general damages in addition to what the Claimant is entitled to as unpaid salaries and Duty Tour Allowances. The Court would rather give a time frame for all judgment sums to be paid and failure to so do will attract penalty by way of interest.

From all that have been said above, the Claimant’s case succeeds only to the following extent:

CLAIM 1 Succeeds

CLAIM 2 Succeeds

CLAIM 3 Succeeds only the extent that 1^st Defendant shall pay the Claimant the sum of N2,279,847.84 as his unpaid salaries for April, May, June and July, 2015 and his unpaid DTA for April, 2012, April, 2013, September, 2013 and October, 2014. This sum is arrived at by the Court by calculating the claim proved by the Claimant before the Court in the following manner:

N1,543,657.84 Net Salary for April – July, 2015
N191,800 DTA April, 2012
N202,890 DTA April, 2013
N181,150 DTA September, 2013
N160,350 DTA October, 2014
________________________

N2,279,847.84 Grand Total

_________________________

CLAIM 4 Succeeds only to the extent that the Court shall award the sum of N100,000.00 (One Hundred Thousand Naira) as cost in favour of the Claimant

CLAIM 5 Fails for given the circumstances, the Court is not minded to award general damages.

For the avoidance of doubt, the declarations/orders of the Court are as follows:

THE COURT HEREBY DECLARES that the Claimant having been diligent in the employment of the 1^st Defendant until lawful retirement on 8^th July, 2015 following his 35years of meritorious service is entitled to payment of all his earned salaries, approved expenses and allowances.
THE COURT HEREBY DECLARES that the failure and refusal of the Defendants to pay the Claimant his monthly salaries and allowances for the months of April, 2015, May, 2015, June, 2015 and July, 2015 and approved expenses is unlawful, malicious, illegal and unjustifiable.
THE COURT HEREBY ORDERS the 1^st Defendant to pay the Claimant the sum of N2,279,847.84 (Two Million Two Hundred and Seventy Nine Thousand Eight Hundred and Forty Seven Naira Eighty Four Kobo) being Claimant’s salaries for the months of April, 2015, May, 2015, June, 2015 and July, 2015, approved Duty Tour Allowances for April, 2012; April, 2013; September, 2013 and October, 2014 respectively
THE COURT HEREBY ORDERS the 1^st Defendant to pay Claimant the sum of N100,000.00 (One Hundred Thousand Naira) as cost awarded in favour of the Claimant.