Agabanwa B. O & 22 ORS -VS- Imo Palm Ltd & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA.

DATED: 14^th November, 2019. SUIT NO: NICN/OW/89/2016

BETWEEN:

AGABANWA B.O
OGUZIE BENARD
UGOCHA DONATUS
EJIMADU PIUS
IHEMEBIGAM RUFUS
AMADI EDWIN
EZIDI ANTHONY
OGBUIRI ELIZABETH
EJIMADU BRIDGET
OPARA HELEN
DENNIS ROSE
NWABISI HELEN CLAIMANTS
EMEGHARA BEATRICE
CHUKWUA CECILIA
AMADI ROSE
LAMBERT THERESA
EMEGHARA CAROLINE
ONYEAGWA EVERESTUS
OMARGBU PRISCILIA
ELUMA GLADYS
OKEAGHALA LAMBERT
OBODOKWE PAULINE
IHEANACHO THEADEUS

AND

IMO PALM LTD

(FORMER ADAPALM NIG LTD.) DEFENDANTS

JUDE OPARA(GENERAL MANAGER)
MINISTRY OF AGRICULTURE
ATTORNEY-GENERAL OF IMO STATE

REPRESENTATION:

O.N.OZUZU AND T.C OZUZU FOR THE CLAIMANTS.
1^ST AND 2^ND DEFENDANTS ABSENT AND UNREPRESENTED.
F.N. OTUOKERE; C.A. IYK – OHAEGBULAM FOR THE 3^RD and 4^TH DEFENDANTS

JUDGMENT:

These 23 Claimants were employees of the defunct AdaPalm Nigeria Ltd. (now known as Imo Palm Ltd, the first Dedendant in this suit). Consequent upon their various retirements from the 1^st Defendant’s employ in the year 2011 between the months of March and August, they now allege in this here action that they are yet to be paid their retirement benefits as well as 18 months’ salary arrears by the 1^st Defendant. Initially, the Ministry of Agriculture as well as the Attorney General of the State of Imo were joined in this suit as the 3^rd and 4^th Defendants respectively. However, they were struck out from the suit on the 22^nd of November, 2018 pursuant to an application on their behalf, by a ruling of this court. The 1^st and 2^nd Defendants having been served with all the processes in this suit, neither entered appearance nor filed any Defence against this suit.

This suit was commenced by a way of complaint accompanied with other originating processes dated and filed 30^th December, 2016 wherein these Claimants claim against the Defendants jointly and severally as follows:

(a) For an order of this Honourable court directing the 1^st Defendant to pay the Claimants their Retirement benefits and 18 months’ salary arrears calculated and computed, to amount to the total sum of N23,910,802.93 (Twenty Three Million Nine Hundred and Two Naira Ninety Three Kobo).

(b) 10% Interest on the 18 months’ salary and pension benefits totaling N23, 910,802.93 due to the Claimants from August till date of payment.

CASE OF THE CLAIMANTS:

The Claimants opened their case on the 18^th of March, 2019. They presented their first witness (Donatus Ugocha) who testified as CW1 who adopted his written statement on oaths dated 30^th December, 2016 and 4^th July, 2017. In his evidence in chief, a total of 7 Exhibits lettered Exhibits C1-C7 were admitted. The documents tendered by CW1 are as follows:

Exhibit C1 – Letters of “Retirement from the services of Adapalm Nig Ltd”.
Exhibit C2 – 2011 Retirement list print out containing year of Engagement, Cadre, Department, Date of Retirement, Salary Grade level, Amount payable.
Exhibit C3 – 2011 Retirement print out, containing names, year of retirement, staff position, Salary arrears, retirement amount and total of both.
Exhibit C4 – Letter by C.C Olumba & Co. of 20^th December, 2013.
Exhibit C5 – Letter of intention to sue from L.M.N Ozuzu & Associates dated 15^th September 2014.
Exhibit C6 – UPS Express Mail Receipt of 8^th October, 2014
Exhibit C7 – Revised Conditions of Service, Senior Staff Adapalm.

Since the Defendants were unrepresented, the Claimants closed their case on that day and leave was granted them to file their final written address.

It is necessary at this juncture to state that the learned F.N. Otuokere inadvertently continued to enter appearance for the 3^rd and 4^th Defendants, called in evidence through the testimony of a witness on their behalf and filed a final written address. Unbeknownst of the earlier ruling of 22/11/2018 which had pronounced that the 3^rd and 4^th Defendants were indeed misjoined, the matter went full cycle and it was at the point of making this judgment that this fact became apparent. Consequently, the parties’ Counsel were called upon on the 13/11/2019 to address this Court on the propriety of the 3^rd and 4^th Defendants’ continued participation in this action despite their being struck out from this suit whereupon both Counsel agreed that judgment of this Court be entered regardless of the fact that the 3^rd and 4^th Defendants were no longer parties in this suit. As such, the names of the 3^rd and 4^th Defendants still appear above despite the misfortune of this inadvertence. However, for the purpose of reaching its final decision, the defense and final submissions put up on their behalf (i.e the 3^rd and 4^th Defendants), shall be disregarded by this Court.

FINAL ADDRESS AND SUBMISSIONS OF THE CLAIMANTS’ COUNSEL:

The Claimants’ Counsel in his final written address formulated a lone issue for determination, to wit; “whether the Claimants are entitled to their reliefs sought against the Defendants jointly and or severally”. Although the address and submissions made are against those raised by the 3^rd and 4^th Defendants’ Counsel, they shall be sieved through in order to determine if the Claimants are entitled to the reliefs sought.

Now, learned Counsel had argued inter alia that there is need to note that these Claimants’ case is not that of wrongful dismissal or termination of employment of the employees but merely that of retirement and willful withholding of their arrears of salaries for 18 months and their worked out monetary entitlements from the time they were asked to hand over and return all their employer’s properties in their custody. Accordingly, the issue of their employment letters, salary slips indicating their last paid salaries and grade levels are non sequitur having not been denied or challenged by their employers the 1^st Dedendant, i.e. Imo Palm Ltd.

He submitted further that the Claimants on the strength of their pleadings and evidence before this Honourable Court have proved their case and are entitled to their Claims and reliefs as same appear in their paragraph 21 (a – b) of their Statement of Claim.

He further submitted that the 1^st and 2^nd Defendants in this suit as well as the 3^rd and 4^th Defendants were served with all the essential and necessary Court processes in this suit, but the 1^st and 2^nd Defendants chose not to enter appearance nor in any way put in any defence to the Claimants’ claims or cause.

Secondly, the 3^rd and 4^th Defendants who reluctantly after 2 years of the pendency of this suit, filed what they termed “STATEMENT OF DEFENCE” without any further expression to show whether it is a joint statement of defence for all the Defendants or for just the 3^rd and 4^th Defendants, had only raised issues of law in their pleadings which accordingly offend the general practice and law on pleadings. Pleadings must contain facts only and so as can be gleaned from the rest of the paragraphs of their statement of defence, only half-hearted and inconclusive denials were made without any specificity of a defense against the Claimants’ suit. This accordingly, shall not be considered sufficient defense against the Claimants’ cause. Mr. Ozuzu cited the case of NDINWA VS NWEBO 2001 FWLR (PT 51) 1903 AT 1910. He believes further that the statement of defence of the 3^rd and 4^th Defendants contain purely legal arguments and conclusions and so wants this Court to expunge paragraphs 8, 9, 10, 11, 12, and 13 which are accordingly offensive.

He further argued that it is trite law, that silence, like in this suit where the 1^st and 2^nd Defendants were served but they refused to deny the claims made against them, is a clear indication of admission. Moreover, says learned Counsel, the 1^st Defendant knows very well, that it has nothing in answer to the Claims of the Claimants to whom the 1^st Defendant already worked out their retirement entitlements and their 18 months’ salary arrears and even handed to each of the Claimants, print-outs and directing them to approach the Finance Department of the 1^st Defendant Company only to renege on that liability. He is satisfied that these Claimants’ Exhibits shall establish this fact.

He contended further that the Claimants’ case is simply that of unchallenged evidence, that is to say the evidence of the CW1, Donatus Ugocha for himself and on behalf of the other 22 Claimants on 18/3/2019 — remain unchallenged and uncontroverted. He cited the case of Oba Elegushi V. S. Oseni (2005) 12 MJSC 33 where Onu JSC (as he then was) at page 6, para B-C stated that:

“Where the evidence of a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not unlawful, and the Evidence led is in line with the facts pleaded, the evidence must be accepted as the correct version of what the witness says”

He further cited the case of American Cynamid vs. Vitality Pharm. Ltd (1991) FWLR (PT 71) 15 at 28-30. In Ndinwa vs. Nwaebo (2001) FWLR (PT.51) 1903 at 1911 para.E — it was held that “Any fact which has not been disputed needs no further proof of. Again, in Awosho vs. Dada (1984) 7SC 149 it was held inter alia, that evidence not challenged or contradicted must be relied upon.

He further submitted that it need not be said that the days of undue legal technicalities are over in our legal practice — see PHMB VS. Edosa (2001) FWLR (pt41) 1799 at 1809. “The Courts are now more concerned with doing substantial justice than clinging on to procedural technicalities and therefore concern themselves with the substance and never the form”. Per Wali JSC. At para F. He impressed on this Court to be guided by all the processes filed in this Court including its earlier ruling of 27/11/2018 in arriving at the just conclusion which is that the Claimants suit must succeed against the remaining Defendants.

He concluded by urging this Court to hold that the Claimants have proven their case by preponderance of available evidence before this honourable Court. He finally prays the Court to grant their Reliefs or Claims against these 1^st and 2^nd Defendants jointly and severally.

COURT’S DECISION

Having perused through the final submissions of the Claimants’ Counsel, the Sole issue for determination in this case is whether they are entitled to the reliefs they seek in this case?

The crux of the case of the Claimants is the non payment of their retirement benefits and 18 months’ salary arrears and also post judgment interest of 10% on the 18 months’ salary and unpaid retirement benefits due to them. They also seek for a declaration by this Court directing the first Defendant Company to pay them the total sum of N23,910,802.93 (Twenty Three Million Nine Hundred and Ten Thousand Ninety Three Kobo).

As stated earlier and at the risk of repetition, the 3^rd and 4^th Defendants were struck out from this suit by a ruling of this honourable Court on the 22^nd of November, 2018 via a motion of Preliminary Objection filed by them on 10^th May, 2019. Curiously, the 3^rd and 4^th Defendants’ grounds on which the Preliminary Objection was filed was that this suit is statute barred and that these Claimants had no cause of action against them. This Court upheld the second ground and discharged the 3^rd and 4^th Defendant from further liability but however held that this suit is not time barred. Interestingly, the 1^st and 2^nd Defendants were never represented and never defended this suit. Ordinarily, Judgment may be entered against the 1^st set of Defendants pursuant to the provisions of Order 9 rule 5 of the National Industrial Court Rules, 2017 which allows for judgment in default of appearance.

However, in considering these Claimants’ final written address submitted, I am content that they were properly retired as employees of the 1^st Dedendant Company particularly. In their bid to establish that, they had tendered Exhibit C1 which is a copy of their individual retirement letters from the services of Adapalm Nigeria Limited (now Imo Palm Ltd), a template of which reads thus:

EXHIBIT C1

Dear Sir/Madam

RETIREMENT FROM THE SERVICES OF ADAPALM NIGERIA LIMITED

We refer to the management letter of Notification of Retirement issued to you dated 03/01/2011 and wish to convey Management’s approval to retire you from the services of Adapalm Nigeria Limited with effect from 10/7/2011.

Your Retirement Benefits have been computed and forwarded to management for onward approval to the Finance/Accounts for scheduled payment. You will therefore handover all company property in your possession to your Head of Department, while your Identity Card should be submitted to the Administrative Department from where you shall also be issued with clearance for your payment.

On behalf of Management, we thank you immensely for your meritorious services to the Company and wish you a restful retirement.

Yours faithfully,

For Adapalm Nigeria Limited

Eze, Philip.O

[Administrative Manager]

Co Ag. General Manager

Finance Manager

They also tendered Exhibit C2 which contains the names of these Claimants as those that are to be retired. Exhibit C8 which is the letter from Government of Imo State of Nigeria dated 17/11/2014 and titled “Reorganization and Repositioning of Imo Palm Limited, Ohaji” wherein the Claimants were purportedly temporarily redeployed to the Ministry of Agriculture and Natural Resources. It reads inter alia, thus:

…The determination of your absorption to the Civil Service, severance, retirement and/or retention by the Imo Palm Limited is being worked out and you will be notified accordingly” — Read paragraph 3 of Exhibit C8.

It is therefore abundantly evident from the combined wordings in Exhibits C1, C2 and C8 that these Claimants were actually retired and yet to be paid their terminal benefits.

Meanwhile, for added measures, the Claimants also tendered Exhibit C7 which is the “Revised Conditions of Service for Senior Staff Adapalm Limited prepared for the Agricultural & Allied Senior Staff Association to which these Claimants purportedly belong. Under Articles 29 and 32, a Staff Retirement Benefit Scheme as well as a Products Allocation to Retired Staff are provisions made to cater for retired staff of the 1^st Dedendant Company. It will seem these Claimants were deprived of all these incentives since they were retired and as such, they ought to be entitled to the judgment of this suit.

In any event, these Claimants have been able to prove the following facts:

That they were employed by the Defendants;
That the Defendants retired them from their employment; and
That their Retirement benefits, unpaid salaries for 18 months prior the commencement of this suit and or other entitlements are yet to be paid to them.

Having considered all the above I find and hold therefore that the Claimants are entitled to be paid their 18 months’ salary arrears as well as their retirement benefits by Imo Palm Limited who inherited Adapalm Limited, the 1^st Dedendant in this here suit. The 1^st and 2^nd Defendants having failed to enter any Defence to this suit, are thereby deemed to have admitted the claims made by the Claimants in full.

Therefore, I find justifiable cause to grant these Claimants their reliefs as sought including the award of post judgment interest of 10% per annum only on the total sum being adjudged as N23, 910,802.93. (Twenty Three Million Nine Hundred And Ten Thousand Eight Hundred And Two Naira Ninety Three Kobo) more so considering the delays in giving them their rightful entitlements for over 5 years prior to commencing this suit as well as the time spent in Court litigating same since 30/12/2016 to the date of this judgment.

Although from the nature of the claims, these Claimants are required to specifically provide a break down of the total amounts owed each of them as well as how the interest came about, I still found that sufficient particulars were produced by them from which the entire total owed these 23 Claimants may be duly determined. Thus found, I am satisfied that they are entitled to the above sum jointly.

Therefore, for the purpose of clarity respecting my above findings and for the avoidance of any doubts whatsoever, these Claimants’ cause succeed in total and the following are the breakdown of the reliefs thereby awarded them:

An order directing particularly the 1^st Defendant, Imo Palm Ltd (Formerly known as Adapalm Nig Ltd) to pay these Claimants the total sum of N23, 910,802.93 (Twenty Three Million Nine Hundred And Ten Thousand Eight Hundred And Two Naira Ninety Three Kobo) being their withheld 18 months’ salary arrears as well as their cumulative retirement benefits which are their lawful entitlements for work and labour done for the 1^st and 2^nd Defendants.
10% post judgment interest on the said N23,910,802.93 per annum effective from the anniversary of the date of entering this here judgment until the judgment debts are finally liquidated.
The said sum of N23,910,802.93 shall be paid within 30 days from the pronouncement of this here judgment.

DELIVERED IN OWERRI THIS 14^th DAY OF NOVEMBER, 2019.

Hon. Justice I.S Galadima

Presiding judge

National Industrial Court Owerri Division