IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 30TH OCTOBER, 2019
SUIT NO: NICN/UY/01/2017
BETWEEN:
ABIA STANLEY JIMMY CLAIMANT
AND
EGYPRO NIGERIA LIMITED DEFENDANT
REPRESENTATION:
CHIEF UMOETOK. A. UMOETOK FOR THE CLAIMANT.
AKINTOYE O. AKINTOKUN WITH JUDE EFFIONG FOR THE DEFENDANT.
JUDGMENT
The Claimant was employed as a Power Technician with the Defendant from 1st December, 2009 until 15th May, 2016 when he resigned. The Claimant filed a Complaint on 9th January, 2017 accompanied by Statement of Facts, Statement on oath and List of documents as required by the rules of this court claiming from the Defendant as follows:
(i) A declaration that during the period that the Claimant worked for the Defendant, the Claimant was entitled to the gross monthly salary of N460,811.56 as per the Employment Contract.
(ii) Payment of the sum of N31,421,345.26 being the outstanding arrears of the Claimant’s salary due to him.
(iii) Cumulative interest at the appropriate/applicable bank rate per month on each monthly arrears from date of employment.
(iv) Interest of 10% on the judgment sum from date of judgment till date of settlement.
(v) Special damages of N3,000,000.00
In response, the Defendant filed a memorandum of appearance on the 14th February, 2017 together with Statement of Defence, Witness Statement on Oath, List of Witness and List of Documents. And by leave of court, the Defendant amended its Statement of Defence on the 15th November, 2017 while the Claimant’s Reply to the Statement of Defence was deemed properly filed and served on 7th February, 2018. Again, the Defendant amended its Statement of Defence by leave of court to bring the evidence in line with the pleadings on 14th January, 2019. The Defendant rested and relied on the evidence of Joyce Jofojo, DW 1 for its defence.
At the trial, the Claimant testified for himself as CW and tendered 8 exhibits while Mrs. Joyce Jafojo, Defendant’s General Manager (Human Resources and Admin) testified for the Defendant and exhibited 22 documents as exhibits. Of note is the fact that 12 out of these exhibits were tendered through the Claimant (CW).
The Case of the Claimant
The Claimant was a Power Technician in the employment of the Defendant from 1st December, 2009 till 15th May, 2016 when he voluntarily resigned his appointment. To the Claimant, he was entitled to a gross monthly salary sum of N460,811.56 which the Defendant failed, neglected or refused to pay throughout the period of his employment. Instead of being paid the said sum of N460,811.56, the Defendant was paid amounts ranging from N32,000.00, N35,000.00, N50,000.00, N55,000.00, N60,000.00, N77,000.00 to N96,000.00 as his salaries for the period. And in spite of the Claimant’s numerous applications and personal entreaties to the Defendant for payment of his full salary in accordance with the letter of employment and in spite of promises to make good the short fall, the Defendant refused or/and neglected to pay the appropriate salary up to the time of his resignation from the services of the Defendant. The total salary paid to Claimant during the period was N4,521,956.42 leaving a short fall of N31,421,345.26 being the outstanding arrears of salary due to the Claimant. The Defendant continued to ignore the demands from the Claimant and his counsel leading to legal expenses in the sum of N3,000,000.00 with N500,000.00 already paid by the Claimant to his solicitors for instituting this suit for the recovery of his arrears of salary.
The Case of the Defendant
It is the preliminary case of the Defendant that this court sitting in Uyo, lacks the requisite Jurisdiction to entertain this matter on the grounds that no leave of the Court was sought nor was any granted for the Court processes to be issued out of Uyo, Akwa Ibom State and served on the Defendant in Lagos State.
It is also the alternative case of the Defendant that the suit is statute barred having commenced on 9th January, 2017 more than 6 years after the cause of action arose.
On the substantive case, the Defendant denied ever short-paying the Claimant and posited that the Claimant was paid the agreed monthly salary at all times and therefore not entitled to any alleged salary arrears from the Defendant particularly when the Claimant neither rejected the salary payments nor complained to the Defendant of any such short fall. To the Defendant the suit is predicated on the wrong misstatement of Claimant’s salary of N460,811·56 per annum in the Contract of employment dated 23rd November, 2009 as his gross monthly salary from which the Claimant seeks to fraudulently benefit. The Defendant further maintained that the above typographical error was not peculiar to the Claimant as one Francis Enenche, was given a similarly letter of employment. The Defendant stated that the error was corrected in their records and was particular about the fact that the said Francis Enenche was employed as a Power Technician along with the Claimant, on the same day, on the same salary, with the same job profile in the same geo-political zone (South-South). It was the further case of the Defendant that the Claimant and all other maintenance staff of the Defendant were converted in to fixed term contract staff vide the memo dated 2nd August, 2010. The implication of which is that, from that date the Claimant and all other maintenance staff ceased to be a permanent staff of the Defendant but contract staff entitled to renewal of the fixed term contract upon the acceptance of the renewal at any given time.
It is the position of the Defendant that there were 18 Power Technicians (including the Claimant) in its employment with the salary of each between N35,000.00 to N50,000.00 as clearly shown in the Staff Schedule for 2010. The principal job of the Power Technician is to ensure that generators on the Defendant’s Clients sites within the staff’s state of operation are serviced as and when due, ensure diesel supplies are maintained and sundry tasks including paying the services of security men on sites. In the reportorial or organisation matrix of the Defendant, the Power Technician is the lowest ranked staff and therefore cannot take a salary higher than Human Resources Manager, who is the most senior member of the management whose monthly salary was less than N420,000.00 as at 2012.
It is based on the foregoing that the Defendant not only denied Claimants entitlement to the sum of N31,421,345.26, special damages of N3,000,000.00 and other reliefs but wants the court to award it the sum of N7,500,000.00 being needless cost and legal fees.
Reply to Statement of Defence
By way of a reply, the Claimant maintained he was employed by the Defendant in Uyo and worked in Akwa Ibom State throughout the period of his employment. It is also the reply of the Claimant that the injury resulting from the non-payment of the said arrears of salary never abated and therefore the action is not statute barred. The Claimant denied being a contract staff but a permanent staff and has never received or served any memo which modified, altered, withdrawn or terminated his earlier contract of employment. To the Claimant, his employment was personal to him and does not depend on the employment of other employees of the Defendant as his salary was offered and accepted in the light of the operational circumstances of the field as against executive operational environment.
DECISION OF THE COURT
Before I go to the case proper there is the need to dispose off three (3) issues. First is the Defendant’s application made on 7th October, 2019, the day fixed for adoption of Final Written Address. The application is simply to deem the Defendant’s Final Written Address dated and filed on 15th May, 2019 pursuant to Order 57, Rules 4 (1), (2) and (4) of the rules of this court. The application itself was a reaction to the Claimant’s submission that the Defendant’s Final Written Address was incompetent for being in clear contravention of Order 45, rule 10. The Claimant posited that the court ordered the parties to file final address on the 14th January, 2019 but the Defendant filed it on the 15th May, 2019 as against the 21 days provided by the rules. On the part of the Defendant, it was argued that the court had power under Order 57, Rules 4 (1), (2) and (4) to extend time for the filing of any process either suo motu or on application.
Now, that the Defendant’s final address was out of time is not in contention. Also not in contention is the applicability of the rules of court cited by the parties in support of their respective but divergent positions. The contention is however on whether the Defendant’s application is grantable under the circumstance? To my mind the answer can only be found upon a consideration of the peculiar facts of the case. The Claimant submitted that the grant of this application will overreach the Claimant as it a spirited attempt to shut out the Claimant from the issues raised in the purported final address of the Defendant. There is force in that submission because a casual comparison of the Defendant’s final address against that of the Claimant, reveals that but for the issue of sections 97 and 99 of the Sheriff and Civil Process Act, there was no response to any of the issues raised in the Defendant’s address. Since the Claimant does not have the opportunity to respond any further, I think the justice of the case demands that I refuse this application. And I so hold. Accordingly, all the five (5) issues raised in the thirty- Seven-page final written address of the Defendant are hereby discountenanced for the purpose of this judgment.
I am now left with only the pleadings of the parties and the evidence adduced thereof. After all, the purport of final written address is just to assist the court and lack of it may not diminish, weaken, add or strength a party’s case since cases are decided only on credible evidence. See Bosma & ors v. Akinole & ors (2013) LPELR-20285(CA), Ndu v. The State (1990) 7 NWLR (Pt. 164) 550 SC and Chabaya v. Anwasi (2010) 42 (Pt. 1) N.S.C.Q.R. 450. In fact Bode Rhodes-Vivour, J.S.C. in Ogunsanya v. The State (2011) 6 S.C.N.J. 220 put the status of address in more proper perspectives thus:
“In any case, a case is won on credible evidence and not on address. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment. In the absence of address by counsel the trial was fair.”
The second is the preliminary issue that this court has presently constituted lacks the jurisdiction to entertain this suit on the grounds that no leave was sought and obtained to issue the processes out of Uyo, Akwa Ibom State on the Defendant in Lagos State. This issue is raised in paragraph 1 of the Amended Statement of Defence of 15th November, 2017 and paragraph 1 of the Second Amended Statement of Defence of 17th January, 2019. The Claimant joined issues with the Defendant on this in its paragraph 1 of his Reply to the Amended Statement of Defence. This a reference to the provisions of sections 97 and 99 of the Sheriff and Process Act. Without much ado, I think the stance of the Defendant here is a total misconception of the law and rules of this court. To start with, Section 21 (1) of the National Industrial Court Act, 2006 provides:
“The court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the president of the court into such number of judicial divisions as the President may from time to time, by instrument published in the Federal Gazette decide”.
The implication of this is that this court has a single jurisdiction covering the whole federation and the divisions of the court are created for administrative convenience only and as such, the territorial jurisdiction is not restricted to Akwa Ibom State or any state for that matter as we have with the States High Courts. It follows therefore that, service of the processes of this court on the Defendants in Lagos State, is not service out of jurisdiction as to require the leave of court before the issue and service of the processes on the Defendant.
Similarly, by Order 7 Rule 10 of the rules of this court, leave of this court is only required to serve the process on a Defendant who is out of jurisdiction of this court, that is, outside Nigeria. The long and short of this is that processes issued by this court to be served within Nigeria do not require the endorsement envisaged by Sheriffs and Civil Processes Act.
Not only that, the cases cited by the Defendant in support of this assertion do not represent the current position of the law on the subject. The new dispensation can be found in the case of John Hingah v. SDP & 2 Ors, SC/341/2019 delivered on the 15th day of May, 2019, in which the Supreme Court held that as far as service of process within Nigeria is concerned the Sheriff’s and Civil Process Act does not apply to the Federal High Court. This apply to the National Industrial Court of Nigeria mutatis mutandis. In the light of the foregoing, it is my considered view that this court has the jurisdiction to try this suit upon the processes issued on the Defendant. I so hold.
The next issue raised by the Defendant is the cause of action being statute barred for having been instituted more than five (5) after the alleged cause of action arose. This issue is predicated on Section 16 of the Limitation Law of Akwa Ibom State, cap. 78, which is a point of law touching on the jurisdiction or competence of a court to adjudicate upon a matter before it. It is a fundamental and a threshold issue that needs to be dealt with at the earliest opportunity. And in the determination of whether a suit is statute barred, all the court need to do is to simply look at claim to know when cause of action arose and when the suit is filed. Using this formula, the Defendant submitted that the cause of action in this suit arose on the receipt of the first salary by the claimant on 1st January, 2010 and that even by dates specified in the purported letters of complaint, more than six (6) years had elapsed as at 9th January, 2016 when the suit was filed. Can this be correct? I think not. A casual look at the Complaint of the Claimant shows that the claim is for the sum of N31,421,345.26 being arrears of the short-fall of N460,811.56 for every month the Claimant worked for the Defendant. So under the circumstance, for every month this short-fall remains unpaid, the Claimant has a fresh cause of action against the Defendant. Whether or not this claim will succeed is not relevant at this point. I am fortified in this stance by the exposition of the concept of continuing damage or injury by Suleiman Galadima, J.S.C. in the case of A.G, Rivers v. A.G, Bayelsa (2012) 7 S.C.N.J. 88. I am therefore in total agreement with Claimant that the injury to him has not abated. This issue is also resolved against the Defendant.
Now to the case proper. I have digested the facts of this case, carefully watch the demeanour of the witnesses and evaluated their evidence as it were, and I think the issue can be determined on a narrow compass and is: Whether the Claimant’s Salary at the point of employment/engagement was N460,811.56 per month to entitled him to the reliefs sought?
The resolution of this seemingly simple issue will determine where the pendulum swing in this case and I intend to evaluate the pleadings of the parties and evidence thereof in consideration of this case.
The answers to this question from the parties are poles apart. While the Claimant’s answer is in the affirmative, the Defendant’s is in the negative. The answer is nonetheless crucial to the determination of this case one way or the other and I must say it is a case to be fought on hard evidence which makes the evaluation of the evidence of the parties imperative. The parties will therefore swim or sink on credible evidence.
The law is that he who asserts must prove and in monetary claims rooted in employment relations as the instant case, he is required to proof not only his entitlement to the claims but the quantum of the sums claimed. To prove an entitlement to a claim, reliance may have to be placed on an instrument, be it a law, circular, letter or collective agreement which confers the right to the entitlements. See Mohammed Dungus ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39.
Since the onus is on the Claimant to prove his claim, I will start with the evidence of the Claimant. The Claimant testified as CW and tendered eight (8) documents (exhibits CW 1 to CW 8). For our purpose here five (5) documents stand out. These are Employment Contract dated 23rd November, 2009 (CW 1), Letter of Resignation dated 15th November, 2016 (CW 2), Statement of Account from Zenith Bank Plc (CW 3), Letter on Employment Contract: Payment of Salaries dated 30th August, 2010 (CW 7) and Letter of Reminder on Payment of Full Salary dated 20th December, 2010 (CW 8). These are the pivot through which the Claimant seek to prove that he is entitled to a salary of N460,811.56 per month. The case of the Claimant was that he was employed as Power Technician by the Defendant effective from 1st December, 2006 until his resignation on the 15th May, 2016. To proof the contract of employment and his entitlement to the sum of N460,811.56 per month, he tendered Exhibit CW 1 ostensibly relying on paragraph 4 of the Employment Contract, which states:
“4. Salary:
You will receive a gross monthly salary of N460,811.56. This salary will be paid in arrears at the end of the month and will be subject to the normal statutory deductions.”
The Claimant contended that the Defendant never paid him the above salary in full and in proof tendered his Zenith Bank Statement of Account in which the under-payments were made. This is Exhibit CW 3. To show entitlement to the short-fall in the sum of N31,421,345.26, the Claimant tendered his resignation letters dated 15th May, 2016, representing the period of arrears. To demonstrate his efforts or entreaties in pursuing the payment of his full salary from the Defendant, the Claimant tendered two letters dated 30th August, 2010 and 20th December, 2010 (Exhibits CW 7 and CW 8) respectively.
In addition, the Claimant also alluded to some certain facts: That he never executed any other contract of employment with the Defendant apart from Exhibit CW 1. That there was never a time a month salary of N38,400.96 was discussed with him before his employment. That his employment was not dependant or affected by the employment of any other employee. This represents the evidence of the Claimant in a nutshell.
On its part, the Defendant tendered a total of thirty-seven (37) documents. The case of the Defendant was that the Claimant’s Gross Monthly Salary was N38,400.96 while his Net Monthly Salary was N35,000.00 with a Gross Annual Salary of N460,811.96 per annum. The Defendant therefore submitted that the reference to the sum of N460,811.96 as the Gross Monthly Salary of the Claimant in Exhibit CW 1 was a typographic error which was immediately corrected by sending the amended page to the Claimant by email. But the email was not tendered in evidence. The Defendant also stated that this error was not common only to the Claimant as it was the case of one Francis Eneche, who was employed for the same post, on the same date and posted to the same south-south zone. To confirm this, the Defendant tendered the employment contract of Francis Eneche as Exhibit DW 15 and posited that this error was also resolved by the same email sent to the Claimant. Having noted that there was never a time the Claimant demanded for any unpaid or withheld salary, the Defendant submitted the salary paid the Claimant in Exhibit CW 3 was in accordance with his salary entitlement.
In further proof that the sum of N460,811.96 as the Gross Monthly Salary was given in error, the Defendant tendered a barrage of documents all pertaining to the salary structure of the Defendant. These document are Employment Contract of five (5) other Power Technicians. This are Exhibits DW 15, DW 16A, DW 16B, DW 16C and DW 16D. There are also Qualification of Power Technicians (Exhibit DW 17A), Staff Details (Exhibit DW 17B), Contract Staff (Power Technicians) (Exhibit DW 17C), Contract Staff 2010 (Exhibit DW 17D) and Contract Staff 2011 (Exhibit DW 17E). These exhibits seek to proof that none of the staff in the employment of the Defendant earned the sum of N460,811.96 per month. In fact the salary of highest paid Management Staff in the person of DW 1 (Joyce Jafojo, General Manager, Human Resources) was N374,000.00 and N415,140.00 as at 2011 and 2012 respectively. These exhibits also put the salary bracket of all the Power Technicians including the Claimant in the employment of the Defendant within N35,000.00 to N55,000.00 in 2010. The Defendant also made use of Exhibits DW 13 and DW 14 to show the administrative action taken by the minute on the CVs of the Claimant and Francis Enenche.
Not only that, the Defendant maintained that the mistaken sum of N460,811.96 cannot be true in the light of the conversion of the Claimant from a permanent staff to a contract staff for a fixed term from 2nd August, 2010 up to the time of his resignation. In proof of this stance, the Defendant tendered a Memo to that effect. That is Exhibit DW 18. Similarly, the Defendant exhibited letters of Renewal of Fixed Term Contract duly endorsed by the Claimant for various contract renewals. These are Exhibits DW 20A, DW 20B, DW 20C, DW 20D, DW 20E, DW 20F, DW 20G, DW 20H and DW 20J.
Above is a preview of the evidence of the parties in this case. It is now left for the court to perform its primary duty of the evaluation of the evidence and the ascription of probative value thereof. Before I do that, it imperative for me note two (2) issues. One, is the fact that the Claimant was in the employ of the Defendant for about 7 years be it as a permanent staff or a fixed contract staff. Second, the alleged short-fall or underpayment due to the Claimant for these years is N31,421,345.26.
The case of the Claimant is predicated on mainly the Employment Contract (Exhibit CW 1), Letter of Resignation (CW 2), Claimant’s Statement of Account (CW 3), Letter of Demand dated 30th August, 2010 (CW 7) and Reminder dated 20th December, 2010 (CW 8). I have taken a close look at these documents vis-à-vis the evidence and the only document I find supporting the case of the Claimant is the CW 1. This is the document which in paragraph 4, stated that the Claimant is entitled to a gross monthly salary of N460,811.96. The Statement of Account (CW 3) did not say anything about any short-fall and to some extent, it only goes to support the position of the Defendant that it was paying his entitled salaries as and when due. The Letter of Resignation (CW 2) did not fare any better. I have read it a couple of times but cannot find where any mention was made of the alleged short-fall of salaries in the sum of N31,421,345.26. It very difficult to believe that an outstanding issue as important as this did not get even a mention in a letter of this nature. The same is equally true of the email copy of the resignation letter (DW 19) the Claimant sent to the Defendant. Next are the twin letters of demand and reminder (CW 7 and CW 8). These letters said to have been delivered by hand by the Claimant in Calabar were not acknowledged by anybody. Not only that I think the letters dated 30th August, 2010 and 20th December, 2010 are too-far-in-between to show seriousness in the recovery of the salary short-fall of this magnitude. What this means is that since the advent of these letters there was no effort from him to exert pressure on the Defendant on this matter. In any case, the fact that these letters bears no acknowledgement is a clear case of non-delivery. My learned brother, E. N. Agbakoba, J. has in several cases held, following Agbaje vs. Fashola (2008) 6 NWLR (Pt. 1082) and Nlewedim vs. Uduma (1995) 6 NWLR 309 at p394 para B. that lack of evidence of acknowledgment on a document or notice, by way of endorsement, receipt or stamp is indication that the said document or notice was not presented or delivered to the address or person intended or any person at all. See the unreported cases of Akpan Lawrence Idorenyin vs. Skye Bank Plc, Suit No. NICN/CA/104/2013 delivered on the 18th February, 2016, Eniang Ndem vs. Mr. Ndoma Akpet & 3 Ors, Suit No. NICN/CA/14/2014 delivered on the 24th February 2016 and Samuel Udo v. Manhatan Security Services Ltd, Suit No. NICN/ 35/2014, delivered on 12th May, 2016.
On the other hand, the Defendant was able to give a narration consistent with its stand that the gross monthly salary of N460,811.96 in CW 1 was an error. The Defendant has put the several documents relating to the salary structure of the Defendant to maximum effect. Not only did the Defendant succeed in showing that at the time of the Claimant’s appointment no staff was receiving that amount of salary but that the salaries being paid to the Claimant is within the range paid to other Power Technician in the employ of the Defendant. Again, the provisions of Memo on the conversion of all maintenance staff, like the Claimant, from permanent staff to fixed contract staff (DW 18) has put paid to any claim for that bogus salary effective from 2nd August, 2010. The Claimant’s claim that he has not seen the memo was not made out. Similarly, the various letters of renewal of the fixed contracts which were specific as to the period of the contract and the salary payable, has put the matter beyond reproach. The feeble attempt by the Claimant that he executed the renewal of fixed contracts under pressure is of no moment given the fact the renewals did not occur at once or at the same time.
Having failed to establish that the N460,811.96 expressed in Exhibit CW 1 was the gross monthly salary and in view of the formidable evidence of the Defendant, I have no difficulty in holding that amount was the gross annual salary of the Claimant. I so find and hold.
From all I am saying the Claimant has failed to prove his entitlement to the sum of N31,421,345.26 as outstanding arrears of salary. The case is therefore hereby dismissed for lacking in merit and with no order as to cost. With the principal relief dismissed, the claims for interest and special damages are not grantable and must collapse like a pack of cards. See the cases of Awoniyi v. Reg. Trustees of Amore (2000) 10 NWLR (Pt. 676) 522 at 539, Hemason (Nigeria) Ltd v. Pedrotech (Nigeria) Ltd (1993) 3 NWLR (Pt. 283) 548 and the unreported case of Saheed Saula v. Atiku Security Company Limited, Suit No.NICN/LA/258/2013, delivered on 30th October, 2018 by B. B. Kayip, J.
Similarly, the claim by the Defendant for costs and final legal fees in the sums of N4,500,000.00 and N3,000,000.00 respectively, being in the nature of special damages having not being supported by evidence is deemed abandoned and hereby dismissed.
Judgment entered accordingly.
HON. JUSTICE M. A. NAMTARI
