IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: WEDNESDAY JUNE 20TH 2018
SUIT NO. NICN/LA/241/2018
BETWEEN:
RUTH ADESUWA OMOGBAI
CLAIMANT
AND
- MS. ADERONKE SIJUWOLA ADEGBITE
(Trading under the name and style of Topstitch Tailoring Boutique) DEFENDANT
- TOPSTITCH CLOTHING LIMITED
Representation:
Chinwe Chiwete(Mrs.) appears for the Claimant
No Counsel for Defendant
SUMMARY JUDGMENT
On 18th April 2018, the Claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the Defendant:
- The sum of N130,000.00 (One Hundred and Thirty Thousand Naira only) being outstanding balance of salary for the period of four (4) months (January 2017- April 2017).
- Interest at the rate of 21% per annum from 30th April 2017 until judgment is delivered in this suit.
iii. Interest rate on the judgment sum at the rate of 10% from the date judgment is delivered till the judgment sum is fully liquidated.
- The sum of N1,000,000.00 (One Million Naira Only) being legal costs of this action.
The Claimant also filed a motion for Summary Judgment dated 18th April 2018. The suit was mentioned for the first time on 30th May 2018. The Defendant was not in Court, but Court Record showed Defendants had been served. Claimant informed the Court that Claimant received a credit alert from Defendant whereupon she brought the present application, the subject of this Ruling. The application is dated 28th May and brought pursuant to Order 15 Rule 2(6) of the Rules of this Court, and seeks:
- AN ORDER OF THIS HONOURABLE COURT ENTERING JUDGMENT on admission against the Defendants/Respondents and for the Claimant in the sum of N130,000.00 (One Hundred and Thirty Thousand Naira only).
- AN ORDER OF THIS HONOURABLE COURT awarding cost of litigation in the sum of N500,000.00 (Five Hundred Thousand Naira Only) to the Claimant.
- AND FOR SUCH ORDER OR FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The application is brought on the grounds that:
- The Claimant instituted this suit via Complaint and an application for Summary Judgment dated 17th April 2018.
- The Defendants/Respondents recently made part payment of the claimed amount via account transfer to the Claimant.
Claimant state that sometime in March 2016 the Defendants employed the Claimant as their Personal Assistant and Sales Representative. It was agreed that the Defendants will be paying the Claimant a monthly salary of N40,000.00 (Forty Thousand Naira Only). That upon her resumption of work in March 2016 she did not receive any salary until May 2016 when the Defendants paid her part salary of N20,000.00 (Twenty Thousand Naira Only) however the Defendants transferred several amounts into her account to run errands or make other payments for and on behalf of them. The Claimant worked for the Defendants from March 2016 to April 2017. During the course of the Claimant’s employment with the Defendants, the Defendants never paid her salary as at when due and in full. The salaries were paid in piecemeal. When the Claimant’s salaries were not forthcoming and she requested for her outstanding salaries to be paid as the hardship in terms of transportation cost was becoming unbearable, Ms. Aderonke Sijuwola Adegbite immediately disengaged her consequent upon which she stopped work in April 2017.
As at the time the Claimant was disengaged in April 2017, she was being owed 4 (Four) month’s salary (January 2017 – April 2017) which is N160,000.00 (One Hundred and Sixty Thousand Naira Only) plus additional N10,000.00 (Ten Thousand Naira) outstanding from her previous salaries bringing it to a total of N170,000.00 (One Hundred and Seventy Thousand Naira Only) due to her as at April 2017. After repeated demands and requests, the Defendants paid the sum of N30,000.00 (Thirty Thousand Naira Only) on 30th June, 2017 and additional N10,000.00 (Ten Thousand Naira Only) on 20th July 2017 to the Claimant thereby leaving an outstanding balance of N130,000.00 (One Hundred and Thirty Thousand Naira Only) due to her in salary.
Upon service of the originating processes, the Defendants/Respondents who already has the account details of the Claimant transferred the sum of N160,000.00 (One Hundred and Sixty Thousand Naira Only) into the Claimant’s account.
Submission of Claimant:
Claimant raised the issue, “Whether in the circumstances of this case this Honourable Court ought to grant the application and enter judgment on admission for the Claimant. She referred to the decision in the case of Tukur v. I.P.E.S. Ltd. (2014) 17 NWLR Part 1437 P.597 Para G.
She submits that by paying in the sum of N160, 000.00 where the outstanding salary was N130,000.00, the Defendants have clearly admitted the said outstanding salary and even the fact that the Claimant/Applicant is entitled to be compensated for the cost which she has been put through. She therefore urged the Court to enter judgment for the first claim which is the sum of N130,000.000 (One Hundred and Thirty Thousand Naira Only) in favour of the Claimant/Applicant.
She also asked for cost in line with Order 55 Rule 5 and argued that this matter ought not to have proceeded to the Court if the Defendants/Respondents had complied with her requests/pleas.
COURT’S DECISION
This application is brought pursuant to Order 15 Rule 2(6) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 which states as follows:
Where the defendant admits part of the claim, the claimant may by motion on notice request the Court to give judgment against the defendant on that sum of money (where the claim is monetary) or part of the claim admitted by the defendant.
I have considered the processes in this application and the submissions of Counsel. The application seeks for summary judgment on the ground that the Defendant made part payment of the claimed amount via account transfer to the Claimant. From facts stated in the Statement of Facts and the facts averred in the affidavit in support of this application, the Defendant is owing the Claimant the sum of N130, 000.00 and upon receiving the processes in this suit, paid in the sum of N160,000.00. I find that the main Relief in this suit have been achieved and there is no further need to give judgment in the said sum.
With respect to the Relief seeking for award of cost of litigation in the sum of N500, 000.00, on the authorities, expenses incurred by a party on counsel are reasonably compensated. See Int’l Offshore Const Ltd v. SLN Ltd. 16 NWLR (Pt. 845) 157 @ 179.
The Defendant, while not entering appearance, has gone ahead to pay in the claimed sum, with an extra of N30,000.00. That may be argued to indicate good faith upon which one may argue that there should be no cost. It is Claimants argument that the matter should never have come to Court if Defendants had done what they were supposed to do in the first place and not cause the Claimant to incur cost of litigation. I find this to be sound argument.
However, as held in Emperion West Africa Ltd v. AFLON Ltd & Anor (2014) LPELR-22975(CA):
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wrong party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe v. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F)
In order to strictly indemnify the Claimant as suggested in the Emperion West case above, Claimant needs to establish that she incurred such cost, to the Court. In Intels Nigeria Ltd. & Ors. v. Bassey (2011) LPELR-4326(CA), the Court held that
Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate to engender its disentitlement. I am thus in tandem and at par with the dictum in F. B. N. Ltd. v. Owie (1997) 7 NWLR (Pt. 484) 744/756 where Akpabio, JCA stated thus:
“A lawyer’s professional fee is not something to be proved by mere ipse dixit.
Everybody knows that lawyers issue receipts for any money paid to them.”
I do not find any evidence upon which to rely and award cost of litigation. In the circumstance, the application fails in its entirety and is hereby dismissed. The subject of the suit having also dissipated, I hereby strike out this suit.
Ruling is entered accordingly.
…………………………………….
Hon. Justice Elizabeth A. Oji PhD
