IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: July 18, 2018
Suit No: NICN/IB/40/2012
Between:
Mr. Julius Taiwo Faroun —————————————- Claimant
And
Nigerian Wire and Cable Plc. —————————————- Defendant
Representation:
Adewale Adegoke for the claimant.
Defendant’s counsel absent. No letter
COURT’S JUDGMENT
This is a transferred case from the High Court of Oyo State, Ibadan Judicial Division, which was filed on November 18, 2008 before its transfer to this Court on December 21, 2011. The parties regularized their processes in line with the Rules of this Court and by his complaint, the claimant is claiming the following reliefs from the defendant:
(a). The sum of N9,229,771.47; being the terminal benefits due to the claimant from the defendant.
PARTICULARS OF THIS CLAIM ARE:
(i) Six months’ salary in lieu of notice- N389,718.00
(ii) Money expended at the request and on behalf of the defendant – N256,043.00
(iii) Cost of refurbishment of the claimant’s last official car – N266,100.00
(iv) Ten months arrears of salary – N927,248.43
(v) Gratuity – N5,767,432.89
(vi) Others – N1,623,229.15
TOTAL – N9,229,771.47
(b). 20% interest on the above-stating from the time of the claimant’s retirement i.e. 31st December, 2003 until judgment is delivered in this suit.
December, 2003 until judgment is delivered in this suit.
(c). 10% interest from judgment until the finally liquidation of the judgment sum.
(d). An Order compelling the defendant to release to the claimant the original registration particulars/documents of the Nissan Primera car with Registration Number LAGOS DY 680 AAA being the last official car of the claimant while in the employment of the defendant.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its statement of defence together with other processes in compliance with the Rules of this Court.
CLAIMAANT’S PLEADINGS
The case of the claimant is that he was employed on May 15, 1985 by the defendant as a Mechanical Engineer and that after series of promotions, he became its Factory Manager. He was on this post when; in December 2003, some senior members of the Board of Directors of the defendant approached and persuaded him to resign because of the alleged dwindling fortunes of the defendant, which made it inevitable to invite investors who had however, insisted that they must have a controlling authority over the defendant. As a result, he resigned his appointment with the defendant as a sacrifice to resuscitate the defendant and the defendant undertook to pay him his terminal benefits (including other entitlements) within thirty days from the day of his resignation. Regrettably however, his terminal benefits has remained unpaid despite repeated demands; hence the institution of this case.
DEFENDANT’S PLEADINGS
The case of the defendant on the other hand, is that the claimant is an ex-staff of the defendant who resigned his appointment voluntarily from the defendant company on December 31, 2003. That the conditions of service relied upon by the claimant for his claims in this case were without the authority of the Board of Directors and the shareholders of the defendant and also that it was fabricated and concocted by the claimant in cohort with other Management staff to defraud the defendant. The defendant further averred that the voluntary resignation of the claimant’s appointment from the defendant company was with a view to taking undue benefits of the fabricated Conditions of Service of the defendant. That the defendant never made any promise to pay the claimant and did not received any letter of demand from the claimant.
During hearing of the case, the claimant testified as CW1 while Mr. Kazeem Ogunpaimo and Mr. Peter Rotimi Oye Adewoye testified on behalf of the claimant as CW2 and CW3 respectively. The defendant’s counsel did not cross-examine CW3 in spite of several adjournments granted him for that purpose and without any explanation. Therefore, the Court discharged CW3 on September 25, 2017 based on the application of the claimant’s counsel. The matter was then adjourned a couple of times for defence but the defendant and its counsel again failed to make use of these opportunities. Hence, on December 7, 2017 the Court ordered the closure of defence to this case, directed counsel to the parties to file their final written addresses and adjourned the matter for addresses. Still, the defendant’s counsel did not file any address but the claimant’s filed his final written address.
CLAIMANT’S WRITTEN ARGUMENT
In his final written address, counsel to the claimant raised one issue for determination as:
Whether in view of the evidence before the Court; oral and documentary, the claimant has not established his case to be entitled to the grant of his claim.
Arguing this issue, counsel stated that in addition to the documents relied on by the claimant and his witnesses as exhibits, the claimant’s case is also founded on oral evidence of the three witnesses of the Claimant himself as CW1, Kazeem Ogunpaimo as CW2, and Peter Rotimi Oye Adewoye as CW3. To counsel, all that the Court is required to do in a civil suit is to put the evidence adduced by each of the parties on a side of the imaginary scale of justice and to observe which one outweighs the other so that judgment could be given in favour of the party with weightier evidence. Counsel noted that the defendant in the instant case did not call any witness and the deposition of the proposed witness was not adopted at trial as evidence. Therefore, he urged the Court to deem the deposition as having been abandoned and to discountenance same, citing B.S. (Nig.) Ltd v. Ometraco Int’l Ltd [2011] 10 NWLR (Pt. 1255) 290 at 303 para E.
Counsel continued that where only a party adduces evidence but the other does not, the Court is to determine whether that evidence unchallenged is credible, cogent and reliable enough to found the grant of the claim of the claimant, citing N.S.I.T.F.M.B. v. Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 307 at 332 paras A-C. He maintained that the claimant gave evidence for himself and called two additional witnesses in line with his pleadings. His total evidence were on when he was employed, the different offices/position and promotions he held until his voluntary retirement in December 2003 as Factory Manager. He went on that the claimant’s evidence also show how the Defendant became indebted to him and the amount of money so owed to him; which is the subject matter of this suit.
Counsel contended that Document C.14 (Condition of service for Management staff of the defendant at page 333 of the record) contains provisions for annual leave allowance, lunch subsidy, transport allowance, housing allowance, children education allowance, staff retirement benefit scheme, gratuity, furnishing allowance, among others; it was on the basis of this document that Document C.8 (containing statement of the claimant’s final entitlement at page 321 of the record) was made, which puts the entitlements of the claimant at N8, 707, 628.47. To the claimant, these entitlements excluded other debts owed to the claimant by the defendant, of which when added to the ones stated in Document C.8, brings his total entitlements to the sum of N9,229,771.47. CW2, a former Accountant in the Accounts Department of the defendant gave detailed analysis of how the total sum contained in Exhibit C.14 was arrived at and that CW3, who tendered Documents C.16 and C.17 (the previous conditions of service of the defendant,) was not even cross-examined in spite of several opportunities granted to the defendant to do that.
Counsel again submitted that it is the law that where material evidence as given by a party to any proceedings was not challenged or rebutted by the opposing party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it; citing Insurance Brokers of Nigeria v ATMN [1996] 8 NWLR (Pt. 466) 316 at 327 para G. Counsel maintained that the evidence of both CW1 and CW2 were not controverted in any way. In fact, CW2 was unshaken during his testimony. His evidence; which showed candour, deep expertise and a firm understanding of the accounting system of the defendant especially as it relates to calculating the benefits owed to each staff including the claimant was not challenged throughout cross examination.
Counsel contended that it is a sacrosanct principle of law that where there is no oral and/or documentary evidence to show that the facts pleaded are true, such pleading without evidence in support thereof is worthless, citing Cameroon Airlines v. Otutuizu [2011] 4 NWLR (Pt. 1238) 512 at 544 Para G and urged the Court to so hold.
In the alternative, counsel argued that assuming without conceding that the Court can even countenance the defendant’s pleadings and the depositions of her proposed witness as contained in the witness statement of oath; he submitted that the evidence is not weighty enough to fault or frustrate the claim of the claimant. That though the claimant was alleged to have fabricated and concocted the condition of service which he is now relying on in this case to defraud the defendant, yet no petition was written against him for forgery or any other offence and no other condition of service, was tendered by the defendant to show which is original.
Counsel submitted that where a party does not deny the existence of a document but only says that it is not the right one, he has a bounden duty to produce the authentic one, citing Audu v. INEC (No. 2) [2010] 13 NWLR (Pt. 1212) 456 at 521 paras E-G, that where a party alleges a crime in his pleadings as the defendant has done in paragraphs 5, 6 and 14 of her defence, it is the duty of such party as we have in this case to prove the allegation beyond reasonable doubt pursuant to section 138 of the Evidence Act, 2011; failure of which such allegation shall fail in its entirety, citing Biezan Exclusive Guest House Ltd v. Union Homes Savings & Loans Ltd [2011] 7 NWLR (Pt. 1246) 246. He went on that where the claimant has adduced admissible evidence which is satisfactory in the context of this case, and none is available from the defendant, the case will be decided upon a minimal proof. This makes the burden of the claimant lighter since all that the defendant in this case has before the court is a mere paper tiger which cannot take the place of evidence, citing Adeleke v. Iyanda [2001] 13 NWLR (Pt. 729) 1 at 23-24 paras H-A.
Counsel finally urged the Court to hold that on the balance of probabilities, the claimant has satisfied the Court to be entitled to the grant of his prayers and to also resolve the only issue formulated in favour of the claimant and against the defendant.
COURT’S DECISION
I have gone through the facts of this case as pleaded by the parties, the evidence and written arguments before the Court. From these I am of the considered view that the only issue to determine between the parties is:
- Whether or not the claimant is entitled to claim from the defendant, the sum of N9,229,771.47; being the terminal benefits together with;
- The release to the claimant the original registration particulars/documents of the Nissan Primera car with Registration Number LAGOS DY 680 AAA being the last official car of the claimant while in the employment of the defendant.
Before going to the merit off this case, it is worthy of note that after entering appearance and filing its statement of defence, the defendant in this case only cross examined the CW1 and CW2; thereafter, it counsel stopped coming to Court. In essence, the defendant did not open its defence by calling its listed witness to defend this case neither did it tender any document for that purpose despite several adjournments granted the defendant by the Court.
Order 38 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides that:
Where a cause is called for hearing and the claimant appears in Court but the defendant or respondent and/or counsel who has entered defence was not in Court and no good cause has been shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon the claimant.
As a matter of fact, counsel to the defendant was in court when two out of the three witnesses of the claimant gave evidence and counsel cross-examined the two witnesses. See the proceedings of the Court on July 8, 2015 at pages 51 to 58 of the Court’s proceedings file on this case. The 3rd witness of the claimant who testified on March 2, 2016 was not cross-examined by the defendant’s counsel; because by that day the defendant and its counsel had stopped coming to Court and without any explanation.
Not minding repetition but for emphasis; the claimant’s pleaded facts are that he was employed on May 15, 1985 by the defendant as a Mechanical Engineer and that he rose through the ranks to become its Factory Manager. He went on that in December 2003, some senior members of the Board of Directors of the defendant persuaded him to resign because of the alleged dwindling fortunes of the defendant, which made it inevitable to invite investors who had however, insisted that they must have a controlling authority over the defendant. Hence, he resigned from his appointment with the defendant and the defendant undertook to pay him his terminal benefits (including other entitlements) within thirty days from the day of his resignation but which the defendant failed to pay.
The case of the defendant on the other hand, is that the claimant resigned from his appointment voluntarily on December 31, 2003 and that the conditions of service relied upon by him on this case were without the authority of the Board of Directors and the shareholders of the defendant and were fabricated by the claimant in cohort with other Management staff to defraud the defendant. It averred further that the defendant did not make any promise to pay the claimant any entitlement neither did it receive any letter of demand from the claimant.
The evidence elicited by the defendant during cross examinations of CW1 and CW2 are as follows:
Cross-examination of the CW1 (the claimant)
I was part of the management team with the defendant as Factory Manager. Document C.14 was approved by the Board of Directors at Board meeting. I am not aware that any Audit was carried out by Dele Odunowo & co.
Cross-examination of CW2 – Kazeem Ogunpaimo
I worked in the account department of the defendant from April 1997 to August 2003. I left the defendant as a result of re-organization in the company and my appointment was terminated. The defendant was audited during the period I served them. I don’t know the outcome of the audit. I was not a management staff of the defendant.
The law is that, answers obtained from a witness under cross-examination, be he the witness of the claimant or a co-defendant in the case, is as good and admissible as the evidence obtained under examination-in-chief; see INEC v. Ifeanyi [2010] 1 NWLR (Pt. 1174) 98 at 118 paragraph H. See also the unreported decision of this Court in Suit No: NICN/1B/97/2013 between Architect Ogundinwin Olusola v. The Oyo State Government and 2 Ors delivered on the —? By these decisions, the evidence of CW1 & CW2 under cross examination as shown above could be to the advantage of the defendant in this case. The question is has the testimonies of CW1 & CW2 under cross examination assisted the defendant to prove that the claimant and some other Management staff of the defendant including the claimant fabricated the conditions of service for the senior staff of the defendant without the authority/approval of the Board of Directors and the shareholders of the defendant? The answer is in the negative. In essence, there is no evidence on the pleadings of the defendant before the Court. In West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 185 paragraphs A-D it was held that if one party fails or refuses to submit the issues raised in his pleadings for trial by giving or calling evidence in support, the trial Judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party. Indeed, refusal by a party to lead evidence in support of an averment in the pleadings or the entire pleadings translates into a voluntary abandonment of such averments or the entire pleadings as the case may be. In the circumstance, I find and hold that because the defendant failed to lead evidence in support of its pleadings before the Court, this translates into voluntary abandonment of the said pleadings by the defendant.
The law is that evidence not controverted, discredited or challenged ought to be accepted as proving an existing or alleged fact; see Okonkwo v. Onovo & Ors: [1999] LPELR-6630 (CA): [1999] 4 NWLR (Pt.597)110. Since there is no evidence from the defendant to contradict those of the claimant in this case, the claimant’s evidence is accordingly accepted as presented before the Court.
The next issue to resolve is whether the claimant has proved his claims to the satisfaction of the Court through his uncontroverted evidence for him to be entitled to them.
- His terminal benefit
His first claim is for the sum N9,229,771.47 as his terminal benefits. In order to establish this this claim, the claimant referred to Document C.14, which is the condition of service for Management staff of the defendant. It is dated 23rd July, 2002; see pages 333 to 339 of the record. Through Document C.9 the defendant wrote the claimant to voluntarily retire from the company with effect from 31-12-03. This letter is dated 30th December, 2003 and signed by one Olusegun Adeyinka, its Managing Director. See page 322 of the record. The claimant then wrote his letter of voluntary retirement on December 31, 2003 and give six months’ notice with effect from January 1, 2004 to June 30, 2004. By his averment in paragraph 11 of his amended statement of fact at page 410 of the record, the defendant waived the six months’ notice and promised to pay him his six months’ salary in lieu of notice but the defendant never paid it. The claimant also tendered in evidence, Document C.8 titled ‘Statement of Final Entitlement’ Mr. J.T. Faroun. It stated toe total terminal benefits of the claimant; his gratuity of 126weeks including his six months’ salary in lieu of notice etc. and puts the total entitlements at N8,707,628.47. The defendant’s counsel was in Court when the claimant tendered all these documents in evidence and he did not challenge them and the Court admitted them in evidence. CW2 who worked in the account Department of the defendant at the material time gave detailed evidence of how the defendant calculated and prepared the claimant’s entitlement as stated in Document C.8. He too was cross-examined by the defendant’s counsel but this evidence was not debunked or discredited. In essence, the defendant did not deny owing the claimant the sum of N8,707,628.47 as his terminal benefits.
Apart from this sum of N8,707,628.47, the claimant has not succeeded in proving to the satisfaction of the Court that he is entitled to claim any amount of money above this said sum, contrary to N9,229,771.47 he is claiming against the defendant. Therefore, I find and hold that the claimant is only entitled to claim the sum of N8,707,628.47 from the defendant as his terminal benefits.
- & c. Pre & Post judgment interests on the terminal benefits
The claimant is claiming 20% interest on the sum N9,229,771.47 from the time of the claimant’s retirement i.e. 31st December, 2003 until judgment is delivered in this suit and 10% interest on the said sum from the date of judgment until the finally liquidation of the judgment sum. There is no provision in the Rules of this Court to claim re-judgment interest from the defendant. However, by the provision of Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 this Court is allowed to give direction as to the period within which certain payment is to be made and may order interest at a rate not less than 10% per annum to be paid upon any judgment.
(d). Whether the claimant is Entitled to go with his Last Official Car
The claimant is also praying the Court for an Order compelling the defendant to release to him the original registration particulars/documents of the Nissan Primera car with Registration Number LAGOS DY 680 AAA, being his last official car while he was in the employment of the defendant. Paragraph 4 of the Conditions of Service (Document C.14) at page 335 of the record states “Management Staff on leaving employment after fifteen completed years of service, shall retire with assigned car, refurbished by the Company as part of total emolument package.” From the evidence before the Court, the claimant worked with the defendant for 18years before he was asked to retire. As a result, the claimant has satisfied this condition of his employment to entitle him to the vehicle in question and I so find and hold.
On the whole, I hold and order as follows:
- I hold that the claimant is entitled to only the sum of N8,707,628.47 as his terminal benefits from the defendant.
- I hold that the claimant is only entitled to claimant post-judgment interest on the judgment sum at the direction of the Court
- I hold that the claimant is entitled to claim from the defendant his last official car as a Management staff of the defendant who had served the Company for 18years.
- I hereby direct that the defendant shall pay the judgment sum of Eight Million, Seven Hundred and Seven Thousand, Six Hundred and Twenty Eight Naira, Forty Seven Kobo (N8,707,628.47) only within 60days from today; after which the judgment sum shall start to attract interest of 10% per annum until the judgment sum is finally liquidated.
- The defendant is to pay N100,000.00 cost to the claimant
- This judgment abides in the other sister cases with Suit Nos: NICN/IB/41/2012 and NICN/IB/42/2012 in principle respectively.
Judgment is entered accordingly.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
