IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 14th November, 2019
SUIT NO. NICN/LA/557/2018
- MOSES OLAJIDE SHOKUNBI———————– Claimant/Applicant
AND
DANA AIRLINES LIMITED————————— Defendant/ Respondent
RULING/JUDGMENT
The claimant/ applicant in this suit filed a complaint in this court on the 2/11/2018, wherein he claimed the following reliefs against the defendant;
1) An order of the court that the claimants terminal benefits and entitlement totalling N24,770,200.00 (Twenty Four Million, Seven Hundred and Seventy Thousand, Two Hundred Naira) be paid immediately.
2) A declaration of the court that the claimant is entitled to be paid his salary until the defendant finally pays his terminal benefits and entitlements.
3) An order of the court that the defendant pays the monthly salary of the claimant from the month of April 2018 until when his terminal benefit and entitlement are finally paid by the defendant.
Or in alternative to (2 and 3) above.
4) Interest on the sum of N24,770,200.00 from 1st September, 2019 at the prevailing bank rate until the sum is finally paid by the defendant.
5) N2,000,000.00 as cost of this action.
The complaint was accompanied by a statement of facts and a witness deposition of the claimant. The originating process was served on the defendant on the 6/11/2018. The defendant filed a defence to the action on the 19/12/2018. Upon the service of the statement of defence on the claimant/applicant, The claimant filed a motion on notice pursuant to Order 3 Rule 7(1) and Rule 12(5) of the rules of this court and also pursuant to the inherent jurisdiction of this court seeking an order of this court entering judgment in favour of the claimant/applicant on the grounds that there are some paragraphs of the defendant statement of defence that admits the part of the claims of the claimant.
Specifically the claimant/ applicant seek an order entering judgment in the following sums.
1) N4,070,250.00 (Four million seventy thousand two Hundred and fifty naira only) being the amount admitted by the defendant as the gratuity of the claimant in Paragraph 14 of the statement of defence dated 19th December, 2018.
2) N 1,829,589.00 (One million eight hundred and twenty-nine thousand five hundred and eighty-nine naira only) being the amount admitted as the total Retirement Savings of the claimant unremitted by the defendant to ARM Pensions in Paragraph 15 of the statement of defence.
3) N169,624.00 (One hundred and sixty-nine thousand six hundred and twenty-four naira only) being the amount agreed by the defendant as claimants medical allowance unpaid for the period 2012 – 2014 as agreed in Paragraph 16 of the statement of defence.
4) N208,736.00 (Two hundred and eight thousand seven hundred and thirty-six naira only) admitted in defendants letter dated 13th September, 2018 as the claimants outstanding leave allowance for 2018;
5) N 51,090.00 (Fifty-one thousand ninety naira only) as the leave days left unpaid to the claimant, admitted in defendants letter dated 13th September, 2018.
The motion is supported by a 12 paragraph affidavit deposed to by the claimant. Annexed to the affidavit are Exhibit MOS 1, MOS 2, MOS 3 and MOS 4. Also in support of the motion is a written address of the claimant/ applicant counsel.
Upon being served with the motion, the defendant/respondent with the leave of the court filed an 18 paragraph counter affidavit on the 9/5/2019. Annexed to the affidavit is a proposed amended statement of defence and a written address of the defendant counsel in opposition to the motion of the claimant. On the 10/7/2019, the claimant/applicant files a further and better affidavit in support of the motion and a written address. On the 16/9/2019 counsel for the parties addressed the court and adopted their processes. The matter was adjourned to today for judgment.
ISSUE FOR DETERMINATION.
The issue for determination here is whether on the state of the pleadings there are admissions in the statement of defence filed by the defendant on the 19/12/2018 which this court can enter judgment for the claimant/applicant as sought in this motion.
In his affidavit in support of the motion seeking an order entering judgment as per the reliefs earlier set out in this ruling, the claimant/ applicant relied on Exhibit MOS1, the notice of retirement from the employment of the defendant, Exhibit MOS 2 and MOS 3, the letter of demand written by the claimant solicitors. Exhibit MOS 4 a response from the defendant dated 13/9/2018 where the defendant admitted certain sums. Counsel also relied on paragraphs 14, 15, 16, of the statement of defence. In his written submission in support of the applicant counsel argued that the admission of the sums claimed are contained in paragraphs 14, 15 and 16 of the statement of defence dated the 19/12/2018 and also in the witness deposition of one OLuwaseun Odulami who deposed to be the Legal Manager of the defendant. Counsel relied on the case of ATM PLC V, BVT LTD. [2007]1NWLR pt. 1015, 259 at 282. Counsel urged the court to enter judgment in the admitted sums.
In his affidavit in opposition to the motion for judgment, deposed to by one Ayodele Osanyinbi, who claims to have done so upon the information given to him by Oluwaseun Odunlamai, she denied that the defendant made any of the admissions relied upon by the claimant in bringing this application for summary judgment. He deposed that the defendant has filed a motion to amend his statement of defence. The deponent of this affidavit went further to deny in his affidavit all the sums the claimant is alleging that the defendant has admitted in his statement of defence. In his written address counsel argued that the defendant did not admit any of the sums as to warrant the filing of the instant application. He argued that paragraph 3 of the statement of defence of 19/12/2018 has specifically denied all the claims before the court. He argued that for admission to be effective it must be clear unequivocal and unambiguous otherwise it would not be taken as true admission. Counsel relied on the case of NBN LTD V. Gurheric LTD. [1987] 2NWLR (Pt56) 253 at 263. Counsel also argued that in deciding whether there is an admission one has to look at the entire pleadings of the party, for a party is not deemed to have admitted a point if it is clear from the statement of defence read as a whole that he did not intend to admit the facts. He relied on the case of Egbe v. N.U.T. [2006]16 NWLR (pt. 1005{ p. 258 at 259. Titiloye & Ors V. Olupo & Ors [1991] LPELR -3250 p. 19 (SC). Counsel also argued that by section 196 of the Evidence Act, Exhibit MOS 4 which is marked ‘without prejudice’ cannot be given as evidence against a party. He relied on the case of Fawehimi V. NBA (No2) [1989] 2 NWLR (pt 105) 558 at 622-623. Counsel urged the court to dismiss the motion.
I have carefully examined the argument put forward by the counsel for the parties what this court is called upon to do at this stage is to consider the paragraph of the statement of defence to determine whether they can qualify as admission on the pleadings when juxtaposed against the paragraphs of the statement of claims which they tend to deny
In paragraph 22 relief (2) the claimant claimed the sum of N657,000 x 3 x 10 years of service making a total of N19,710,000.00k.
In response to this paragraph the defendant pleaded in paragraph 14 of the statement of defence thus;
Further to the above paragraph, and in rebuttal of the claimant’s relief 2 as contained in paragraph 22 of the statement of facts, the defendant states that though it had since ceased payment of gratuity, the defendant shall contend that in any case, since the Claimant was employed on 9th June 2008, with confirmation as a staff on 9th June 2009, and his retirement as communicated vide the Memo dated 13th February, 2018 was effective May, 27 2018, having not spent ten years in the employment of the defendant, his applicable gratuity as contained in paragraph 8. 15 of the Dana Air Staff Handbook which was incorporated into the Claimant’s Terms of Employment by the letter of Confirmation of Employment dated 9th June 2009 for employees who leave the service of the defendant having spent 8 -10 years completed service is ‘Five Weeks Basic Salary for every year completed, i.e. in the case of the Claimant who has only completed 9 years has been computed by the Defendant as N 4,070,250.00 (Four Million, Seventy Thousand, Two Hundred and Fifty Naira ONLY) – The Defendant hereby pleads the retirement Memo dated 13th February, 2018 and shall rely on same at the trial of this suit. Notice is hereby given to the Claimant to produce the original.
In paragraph 22 relief 1 of the particulars of claim, the claimant tabulated his pension contribution which the defendant has failed/refused /neglected to remit to the ARM pensions to be N 1,639,470.00k
In response to this paragraph the defendant in paragraph 15 stated;
Contrary to the computation in paragraph 22 of the statement of facts, in further rebuttal of relief 1 of the claimant, the defendant slates that the total Retirement Savings of the Claimant as domiciled with ARM Pension is N1,829,589.00 and the Claimant is well aware of steps to remit same before commencing the instant suit.
In paragraph 22 relief No 3 the claimant claimed medical at N 70,000 per annum x 10 years totalling N700,000.00k
In response, the defendant stated in paragraph 16 thus;
With particular reference to relief 3, Medical Allowance, in paragraph 22 of the statement of facts, the defendant denies same and restates that Annexure 3 of Dana Air Staff Handbook which was incorporated into the claimant’s Terms of Employment by the Letter of confirmation of employment dated 9th June, 2009 outlines the medical allowance of the claimant (who only became a Senior staff in January 2018), having not been employed as o Senior Staff to be N56,538 for the material period of 2012-2014 as opposed to where an employee joins the employment of the defendant as a senior staff with an entitlement for medical allowance at N70,000 per year.
Paragraphs 14, 15 and 16 contains a clear and concise admissions of the sums stated therein as sums owed the claimant. The settled position of the law is that admitted facts are not in issue. See First Bank PLC V. Oniyangi [2000]LPELR-9130 (CA)
The defendant counsel has attempted to argue that the general traverse in paragraph 3 of the statement of defence denies all the claims before the court. The law is well settled and the settled position of the law is that a general traverse cannot amount to a denial in law. In the case of CBN V.Dinneh [2010] LPELR- 8983 (CA) The Court of Appeal affirmed this position when it held:
A general denial or traverse without more, it has been held does not amount to a denial but is deemed to be an admission. This is why the law requires that essential and material allegation in a pleading should not be reacted to in a statement of defence by a general denial or traverse. Instead they should be specifically denied. It is the specific denial or traverse of averment in the plaintiff’s statement of claim that can meaningfully give rise to an issue or give rise to an issue in a claim by the plaintiff.
See First Bank of Nig. PLC V. TSA Industries Ltd. [2007] All FWLR (pt. 352) 1719 at 1734
I agree with the defendant counsel that for admission in pleadings to be effective, it must be clear, unequivocal and unambiguous. It is the position of this court that paragraph 14, 15 and 16 of the statement of defence contains clear, unambiguous and unequivocal admissions of part of the claimant claims against the defendant. The defendant in those paragraph has even gone ahead to correct error in the computation of the claimant claims against the defendant. Infact as regards the admission in paragraph 15 the defendant has clearly admitted that they are yet to remit the pension contribution of the claimant in this action. The defendant in paragraph 7 of the statement of defence which is repeated in the paragraph 9 of the claimant witness deposition, categorically confirms that fact when he stated
I deny paragraph 10 of the statement of facts and in response state that the contributory pension payment of the claimant as from 2012 has been computed and included in the claimant’s final settlement which was being reconciled with the claimant before this action was filed by the claimant, however the contributory pension of January 2017 has been duly paid to the claimant’s Retirement Savings Account (RSA). The defendant hereby pleads evidence of payment of the contributory Pension of January 2017 and shall rely on same at the trial of this suit.
This is a clear breach of the provisions of section 11(1), sub 5 (a) and (b) and section 11 (7) of the pension Reform Act CAP P4 LFN 2004. Which requires the remittance of the pension contribution to be made at the end of every month.
On relief no iv, v, and vi on the motion paper. Here the claimant/applicant is seeking an order entering judgment in the sum of N208,736.00k as outstanding leave allowance as admitted in the letter dated 13/9/2018, and another sum of N51,090.00 as the leave days left unpaid to the claimant admitted in the letter of 13/9/2018.
In response to this claim, the defendant/respondent counsel has argued that the letter of 13/9/2018 (ie Exhibit MOS.4, which is also annexed as Exhibit to the defendant /respondent counter affidavit)) is marked ‘without prejudice’ and that in paragraph 2 of the letter dated 13/9/2018 it is stated thus ‘For the sake of traverse, nothing herein shall be construed as an admission of claim whatsoever and howsoever arising’. Counsel relied on the provision of section 196 of the Evidence Act to further argue that the letter of 13/9/2018 has no evidential value and the content cannot constitute an admission.
I have carefully read the letter of 13/9/2018, Exhibit MOS 4. That letter is a response to the claimant/applicant solicitor’s letter of 5/9/2018, demanding the payment of the claimant terminal benefits upon exit from the employment of the defendant effective 27/5/2018. I have noted that the letter is marked ‘without prejudice’. In the letter of 13/9/2018 the defendant computed the claimant terminal benefit to include the sums stated above which the claimant applicant is asking the court to enter judgment in favour of the applicant.
The provision of section 196 of the Evidence Act relied upon by the defendant/respondent counsel in his written address provides;
- 196 Evidence Act;
A statement in any document marked ‘without prejudice’ made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceeding in proof of the matters stated in it.
From the provision of the above section of the Evidence Act, it is very clear that the above section would only exclude the operation of a letter written ‘without prejudice’ if it is an outcome of negotiation for settlement out of court. The question that is pertinent here is as at the time the letter of 13/9/2018 was written what out of court settlement was being negotiated by the parties to this present suit for which the provision of the provisions of S. 196 can be invoked by the respondent to this motion?. That section envisages that there must be a pending suit which there must be a negotiation to settle out of court. In the case of Haruna Bako Kolo V. First Bank PLC [2002]LPELR-7106 (CA) The Court of appeal affirmed this position when it held
It is correct that available legal authorities show that a letter marked without Prejudice may not be admitted in evidence, so also evidence emanating from offers of compromise or attempt at a negotiation for out of court settlement of dispute.
See also Fawehimi V NBA (N02) [1989]2 NWLR (pt. 105) 556 623. Akanbi V. Alatede [2000]1 NWLR (pt. 639) 152.
It is a misunderstanding of the provisions of section 196 of the Evidence Act that makes a party to a proceedings to think that once a letter is marked with the phrase ‘without prejudice’ it cannot be tendered in prove of the content thereof in a civil proceedings. The said letter was written on the 13/9/2019, this suit was filed on the 2/11/2018. There was no suit pending as at that time for which the provision of S. 169 of the Evidence Act can be invoked.
Again it is important to note that the same letter which the defendant/respondent is asking this this court not to rely on, is the same letter which the defendant pleaded and relied on in paragraph 13 of his statement of defence filed on the 19/12/2018. The defendant relies on the letter but wants the court not to rely on the same letter as it relates to the defendant/ applicant. The defendant cannot be allowed to blow hot and cold. He cannot on one breath ask the court to rely on the said letter in his defence and on the other breath urge this court to dis-allow the claimant from relying on the same letter. Assuming the letter is anything to go by the defendant/respondent reliance on same even though it was written ‘without prejudice’ would have rendered the operation of S. 169 of the Evidence Act in-operative as it relates to that letter. In fact he would have been deemed to waive his right to raise the defence under section S. 169 of the Evidence Act.
This court hereby holds that S. 169 does not apply to the latter dated 13/9/2018, (Exhibit MOS 4.) It is also the decision of this court that the letter of 13/9/2018 contains admission of the claimant claim in relief no iv and v on the motion paper. On the whole this application for judgment succeeds. The court hereby makes the following orders.
- The defendant shall pay the sum of N4,070,250.00 (Four million seventy thousand two Hundred and fifty naira only) being the amount admitted by the defendant as the gratuity of the claimant.
- The defendant shall pay the sum of N1,829,589.00 (One million eight hundred and twenty-nine thousand five hundred and eighty-nine naira only) to the claimant being the amount admitted as the total Retirement Savings of the claimant unremitted by the defendant to ARM Pensions Ltd.
- The defendant shall pay the sun of N169,624.00 (One hundred and sixty-nine thousand six hundred and twenty-four naira only) being the amount agreed by the defendant as claimants medical allowance unpaid for the period 2012 – 2014.
- The defendant shall pay the sum of N208,736.00 (Two hundred and eight thousand seven hundred and thirty-six naira only) admitted in defendants letter dated 13th September, 2018 as the claimants outstanding leave allowance for 2018;
- The defendant shall pay the sum of N 51,090.00 (Fifty-one thousand ninety naira only) as the leave days left unpaid to the claimant, admitted in defendant’s letter dated 13th September, 2018.
The amount ordered to be paid in this judgment must be paid with 7 days from the date of judgment failure of which it shall attract interest at the rate of 5% until the liquidation of the judgment sum.
Judgment is hereby entered Accordingly.
___________________________________
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
