IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/279/2016
DATE: APRIL 27, 2018
BETWEEN:
- FIDELIS EMEKA CHUKWULUE- CLAIMANT
AND
ALLIANCE AND GENERAL INSURANCE PLC – DEFENDANT
REPRESENTATION:
Nicholas Muotanya, Esq – for the Claimant;
Easter Ezeifedikwa – for the Defendant
JUDGMENT
The Claimant commenced this matter vide a General Form of Complaint with the accompanying frontloaded processes dated and issued on 28th April 2016, against his former employer, basically claiming, among other claims, for recovery of his terminal benefits after 25 years of service. The Claimant’s case is that he was employed by the Defendant on September 27 1988 as an Assistant Superintendant and his employment was confirmed on 4th May 1989, and that he has worked at different locations as directed by the Defendant up till 1st September 2014, when he was compulsorily retired after putting in 25 years of meritorious service. Nevertheless, he was owed terminal benefits, arrears of salaries and unremitted pension.
Claimant’s endorsed Reliefs are as follows:
“
(i.). A declaration that upon the Defendant’s Board approval of the claimant’s retirement effective 1st of September, 2014, the Claimant is entitled to his terminal benefit from the Defendant.
(ii). An Order of this Honourable Court directing the Defendant to pay the Claimant all his terminal benefit for the 25 years and eleven months of meritorious service to the Defendant’s Company.
(iii). An order of this Honourable Court directing the Defendant to pay the Claimant as terminal benefit, 10% of his last Gross annual salary from the date of his employment to the date of his compulsory retirement in the sum of N10,366,666.66k (Ten Million, Three Hundred and Sixty Six Thousand, Six Hundred and Sixty Six naira Sixty Six Kobo) and interest on the said sum at the rate of 21% from the 2nd of December, 2014 until judgment and thereafter at the rate of 10% from the date of judgment until final liquidation.
(iv). An Order of this Honourable Court directing the Defendant to remit the Claimant’s unremitted contributory pension fund in the sum of N1,314,815.51k to the Claimant pension fund Managers together with any sum due as delayed payment or penalty.
(v).An Order directing the Defendant to pay to the Claimant his unpaid 11 months’ salary owed him by Fidelity Bond of Nigeria Ltd (a Sister Company to the Defendant) in the sum of N1,773,333.00k (One Million, Seven Hundred and Seventy Three Thousand, Three Hundred and Thirty Three Naira).
(vi). Damages in the sum of N2, 000,000.00 (Two Million Naira) against the Defendant and in favour of the Claimant.
(vii). Cost of this action”.
Upon service of the said court processes, the Defendant reacted with a Memorandum of Appearance of its Counsel dated 19th October 2016 and later filed Statement of Defence with other frontloaded processes dated 27th April 2017, but regularized by the Court’s Order of 28th June 2017(Per A.N Ubaka, J). The Claimant filed a Reply to the Statement of Defence with Further Witness Statement on Oath, dated and filed on 29thJune 2017, and pleadings closed.
The matter was later re-assigned and transferred to this court, and came up for mention on 31st January 2018, and adjourned for hearing on 19th February 2018. At the Hearing, both parties took part in the proceedings. The Claimant who was his sole witness testified for himself while the Legal Officer of the Defendant, Enabulele Ojo Mercy, testified for the Defendant, after adopting their respective Witness Statement on Oath and together tendered 11 Exhibits, marked Exhibits “CF1-10 and Exh. DF1”.
At the trial, both parties testified that they were willing to have the court enter judgment on the basis of their testimonies in respect of terms of their agreement which though have not been reduced into writing but could be recorded by the court and evidence adduced to establish. On that basis, the course of the trial narrowed to the exact terms of their proposed settlement, and both parties abandoned their earlier testimonies as contained in their respective Witness Statement on Oath and Exhibits tendered. On the part of the Claimant, when asked during further Examination-in-Chief: “can you confirm to this court that after the filing of this suit, the defendant approached you for an out of court settlement?” he responded: “Yes. I confirm”.The Defendant’s witness also confirmed the development and both testified on the agreed terms. When asked to tell the court the offer made to him by the Defendant, the Claimant responded thus: “The Defendant brought their computation of the terminal benefit and it came to about N6.7M. And I reminded them of the unremitted pension to the tune of N1.3M and unpaid salary of N1.9M, all totaling N9M plus. They said that since the economy is difficult, I should give them discount and I offered them 20% discount but they requested 30%, and we later agreed at 25% discount, amounting to N7.2M”. Claimant’s Witness (CW) further testified that despite his discounted offer of 25% to the tune of N7.2 M, the Defendant made another offer to him, to the tune of N5M and transfer of ownership of the official car in his possession, which is a Honda Accord 2006 model. He stated that he has now decided to accept the Defendant’s offer on the agreed timeline and conditions, including his payment of professional fees of his counsel on record. When asked under cross-examination, “how do you intend to effect the payment?”, the DW stated: “the Defendant will issue cheque in favour of the Claimant through our counsel to the counsel for the claimant, but we will ensure that the cheque is written in the claimant’s name”.
According to the CW, the agreed terms and conditions are as follows:
(a). N5M shall be paid by the Defendant as a full and final payment of the outstanding terminal benefits, which sum is payable in installment;
Starting with N2M upon judgment, N1M in each succeeding month up to 3 months from date of the judgment;
(b). Transfer of ownership of the official car (Honda 2006 model) in the Claimant’s possession to him to be his own;
(c). The Claimant upon receipt of each installment shall pay his Counsel on record, the sum amounting to their agreed 10% professional fees, as per the Claimant’s letter of instruction dated 19th April 2016 (Exhibit “CF10”);
(d). Payment shall be made in a Bank certified cheque issued in the name of the Claimant and passed through the Defendant’s counsel to the Claimant’s counsel on record, who shall forward to the Claimant.
Also during the Defendant’s Witness (DW)’s testimony, the above terms and conditions were confirmed as the agreed terms by the parties. The trial then closed and both counsel agreed to an abridged time of 7days each to file and exchange their respective Final Written Addresses. At the resumed hearing on 6th March 2018, both counsel adopted their respective Final Written Addresses, dated 23rd February 2018 and 1st March 2018, for the Defendant and Claimant, respectively. The matter was thereafter adjourned to 27th April 2018, for Judgment.
I will quickly point out an interesting but disturbing event in the proceedings regarding the unethical conduct of counsel at the very first day on 31st January 2018, when the matter came up for mention in my court. After the Claimant’s counsel on record, Nicholas Muotanya Esq, announced his appearance, another Counsel, O.O Odogun,Esq, stood up and again announced another appearance for the same Claimant, stating hoarsely, that he has been briefed by the Claimant to replace the Claimant’s existing counsel, and that he would ‘settle him’. On the same swoop, he informed that he has filed new processes to replace the processes already filed by the said outgoing Claimant’s counsel. And also that he has filed an application for leave to replace the existing counsel. At this point, Nicholas Muotanya, Esq, the learned counsel on record, for the Claimant, vehemently opposed the appearance of O.O Odogun, Esq., stating that he has not been properly de-briefed before a new counsel started filing processes, and pushes to take his position in such a shameful manner. He pointed that did a lot on the matter already as he took initial brief and commenced the matter since 2016 and followed up to the stage of trial with several negotiations for settlement, in-between. He further stated that ordinarily, he would not oppose such a change if not that due process as stipulated in the Rules of the Court was not followed and he was not even notified of the proposed change, and has not been paid the agreed professional fees, only to be told by a colleague that he would be ‘settled’.He sought for a definite ruling as to who is the appropriate counsel to the claimant in the circumstance.
Further to a painstaking effort to calm the noisy atmosphere generated by the altercation, in a considered Bench Ruling, upon review of the provisions of the Rules of the Court relating to change of counsel, as stipulated under Or.54 R.(1)(2) NICN (CP) Rules 2017, I had pointed that one essential requirement in the Rule is that:“a Notification should be issued by either a new counsel or the outgoing counsel. And where the in-coming counsel issues the Notice, it should be served on the existing counsel on record”.I found that: “contrary to the submission of O.O Odogun,Esq, that he has a pending application for leave to change counsel, which he purported to bring under the Or.54 R.(1)(2), nothing in the Rules says that change of counsel has to be by way of Motion, praying the court for leave”.I further found and held that “much as a litigant reserves the right to engage as many counsel as he can afford and can change as frequently as he can, nevertheless, only a set of requisite court process is expected from any counsel on behalf of the litigant and not parallel processes of the same kind in one matter on behalf of the same party without any evidence of due processes of disengagement as stipulated in the Rules of the Court”. I then further held that: “basically, there is no need for an Application for leave to change counsel since a litigant has a constitutionally-guaranteed right to have a counsel of his own choice. And that may have formed the basis of the Rule in Or.54. R.(1)(2) requiring a Notification rather than an Application. This requirement, the purported in-coming counsel, O.O Odogun,Esq, has not done, before he filed several processes in the matter. This would mean that the claimant has retained two separate counsel filing separate but similar processes in a proceedings, which has been held to amount to abuse of court process, with the later process which formed the duplication, liable to be discountenanced and struck out- See: TSA Industries Ltd v. F.B.N Plc (NO1) [2012] 14 NWLR (Pt.1320) SC 326@ P.345, Paras. A-C, wherein the Supreme Court held thus:
‘Where a party duplicates a court process, the more current one which results in the duplication is regarded as an abuse of the court process. Abuse of process of court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some desire to misuse or pervert the system. In the instant case, the application clearly constituted an abuse of court process”.
I had taken the same view in similar situation in Maundis Bika Nakai v. FCMB (Unreported Suit No. NICN/YL/02/2016), the Ruling of which I delivered on 14th November 2017. Accordingly, I found and held that:“As it stands, I hold that there is no in-coming counsel, and the counsel on record remains Nicholas Muotanya,Esq, until he is validly changed in accordance with the Rules of this Court”. Also , that “ the processes filed by O.O Odogun,Esq is not proper before this court since the procedure for change of counsel has not been complied with at the time of filing the said processes which invariably duplicated the existing processes on record for the claimant, thereby constituting an abuse of court’s process. Consequently, the said processes are hereby discountenanced and struck out”.
The matter was thereafter adjourned to 19th February 2018, for hearing, and the Counsel on record for the Claimant, N. Muotanya, Esq, continued with the proceedings and conducted the trial on the 19th February 2018, and filed the Final Written Address for the Claimant.
I must point out, given this development, that if the legal profession should remain as noble and honourable as we all expect, every counsel should endeavour to imbibe and continues to demonstrate the very sublime thrust upon which the profession is anchored; the most mundane of which is, upholding the ethical practice of candor and respect for colleagues and the court. This is the core precept of the Rules of Professional Conduct (RPC) and well expected of all counsel in and out of court room. I say no more!
I now return to the reviewing of the parties’evidence and final addresses by both counsel. In his Final Written Address dated and filed on 1st March 2018, the learned Claimant’s counsel, N. Muotanya,Esq., raised a sole issue: whether the claimant is not entitled to judgment based on admitted facts placed before the court? Relying on the case of Omoregbe v. Lawani(1990) N.S.C.C164,Learned Claimant’s counsel submitted that “where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it”. And that the court has always held that evidence that directly affects the matter in contention which is neither attached nor successfully discredited is good and credible evidence that can be relied upon by the court. Counsel further submitted that from the evidence adduced by the parties, the evidence of the offer of N5M and transfer of ownership of the Honda saloon car (2006 model) and the payment plan was not challenged but agreeable by both parties. Referring to the case of Bunge v. Governor of Rivers State[2006] 12 NWLR (Pt.995)573@p.599, Counsel finally submitted that it is trite law that facts admitted does not need further proof, and urged the court to uphold the admitted facts constituting the agreement of the parties towards resolution of the matter in dispute.
On his part, Defendant’s counsel, M.B Abiola, Esq., in his Defendant’s Final Written Address dated and filed on 23rd February 2018, raised a lone issue for determination, to wit: whether the court can enter as judgment the terms of settlement as evidenced by the testimony of both witnesses of the Claimant and Defendant elicited during their respective evidence in chief? Counsel urged the court to discountenance the part of the witness statement on oath adopted by the witnesses that are in variance with the agreed terms and enter judgment as per the agreed terms as testified to by the parties’ witnesses at the trial.
At the resumed hearing on 6th March 2018, both counsel adopted their respective Final Addresses for the parties. By way of adumbration, both counsel, urged the court to uphold their submissions as contained in their respective Final Written Addresses.
COURT’S DECISION
I took active part in the proceedings; listened to and observed carefully the events of the proceedings and read relevant processes, and as well, watched the parties’ witnesses testify on the later development in the matter resulting in a trial narrowed to adduce evidence on the particular fact of the proposed settlement by the parties.
Parties having abandoned their respective pleadings and processes and concentrated on the establishment of the agreed terms for effectual resolution of their dispute, I will also concentrate on the further oral testimonies of the respective party’s witness to that end.I felt fortified by the provisions of Or.40 R.2 (1) NICN (CP) Rules 2017, to the effect that: “The court may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction”.
Consequently, the averments in the said pleadings earlier filed and exchanged by both parties are deemed abandoned and are hereby discountenanced. I so hold.
From their further testimonies at the trial, in my humble view, the lone issue arising is: whether the court can enter judgment based on the parties’ consensual testimonies about their agreed terms for resolution of their dispute? To resolve this issue, I hold the view that there is no doubt that the agreed terms of settlement testified to by the parties’ Witnessesat the trial amounts to admission on the part of both parties. In Popoola v. Babatunde [2012] 7 NWLR (Pt. 1299) C.A 302 @ P 331, para. B, it was held that what is admitted need no further proof. See also: Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, para. G-H,where the court held that “by virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.
In the circumstance of the case, by directing the narrowing of the trial towards establishing the particular fact of existence and terms of the parties’ proposed agreed terms to resolve their dispute and the witnesses for both parties having given evidence in admission of the agreed terms, I am satisfied that sufficient evidence has been laid by the parties’ witnesses (CW and DW) towards establishing the particular fact of the existence and terms of the proposed agreement by both parties to resolve their dispute in this matter, as also amply demonstrated in the respective counsel’s Final Written Addresses and their adumbration while adopting their said Final Written Addresses. Accordingly, I hold that the parties’ evidence of their proposed agreed terms of settlement succeeds, and judgment is so entered.
On the whole, and for clarity, I hold and order as follows:
(i). N5M (five million naira) shall be paid by the Defendant as a full and final payment of the outstanding terminal benefits owed to the Claimant, which sum is payable in installment; starting with N2M upon judgment, N1M in each succeeding month up to 3 months from date of the judgment;
(ii). Defendant shall execute instrument of Transfer of Ownership of the
official car (Honda 2006 model) in the Claimant’s possession to him as
the owner, immediately upon this judgment;
(iii). The Claimant upon receipt of each installment shall pay his Counsel on record, Nicholas Muotanya, Esq., the sum amounting to their agreed 10% professional fees, as per the Claimant’s letter of instruction dated 19th April 2016 (admitted in evidence and marked as “Exhibit CF10”);
(iv). All Payments by the Defendant to the Claimant shall be made in a Bank certified cheque issued in the name of the Claimant and passed through the Defendant’s counsel to the Claimant’s counsel on record, who shall forward same to the Claimant, not more than 2 days upon receipt of the correspondence conveying the cheque of payment.
(v). Any default of payment by the Defendant as per the payment schedule in (i) above shall attract an interest of 10% until fully liquidated.
Judgment is entered accordingly. I make no order as to cost.
———————————-
Hon. Justice N.C.S Ogbuanya
JUDGE
27/4/2018.
