IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HON.JUSTICE SALISU H. DANJIDDA
SUIT NO: NICN/YEN/58/2016
DATE: 5TH OCTOBER, 2018
BETWEEN:
1. AMADI CHUKWU
2. WOKO ANTHONY ONU………CLAIMANTS
AND
DAAR COMMUNICATION PLC…….. DEFENDANTS
REPRESENTATION:
E. E. OBOMANU for the Claimants
Defendant absent and unrepresented
JUDGEMENT
The Claimants filed this suit by way of complaint dated 17/3/3016. The complaint was accompanied by other originating processes and contained the following reliefs:-
” a. A declaration that the Claimants herein are entitled to their retirement/terminal benefit as per the letters of the Defendant dated 14th November 2014 to each of the Claimants.
b. 5,000,000.00 (Five Million naira) each as damages for the hardship experienced by the Claimants from the 14th November 2014 till judgment.
c. An order of this Honorable Court directing the Defendant to pay the Claimants their retirement/terminal benefit within seven (7) days of the judgement of this Court.”
The defendant was served with the originating processes but did not file a memorandum of appearance nor a statement of defence.
On the 14/7/2016, Claimants were granted leave to amend their pleadings.
CASE OF THE CLAIMANTS
CW1, one Mr Woko Anthony Onu testified that he was offered employment by the defendant as a security guard where he was given Exhibit CW1A dated 12/2/2004. That he was again reengaged by the defendant and given Exhibit CW1B dated 22/8/2007. That he was given a notice of retirement from service by the defendant which was tendered in evidence as Exhibit CW1C. CW1 testified that he was entitled to his terminal benefit but the defendant did not pay him. That he engaged the services of his lawyers who wrote Exhibits CW1D and CW1E to the defendant to pay him his retirement benefit but the defendant did not pay. CW1 further testified that consequent upon Exhibits CW1D and CW1E, the defendant wrote Exhibit CW1F to the Claimants’ lawyer acknowledging its indebtedness.
The matter was adjourned to 28/2/2018 to enable the defendant appear and cross examine CW1 but neither the defendant nor its counsel was in court.
Mr Amadi Chukwu gave evidence as CW2. He testified that he was employed by the defendant as a driver where he was issued Exhibit CW2A. He was again given another offer which was marked as Exhibit CW2B . That he was later issued with Exhibit CW2C by the defendant as notice of retirement. That he was entitled to his retirement benefit but the defendant refused to pay him. That he instructed his lawyers to write Exhibits CW1D and CW1E to the defendant demanding his retirement benefit but the defendant did not still pay him.
After the testimony of CW2, the matter was also adjourned to 2/5/2018 for cross examination of CW1 and CW2, however neither the defendant nor its counsel was in court. On the application of the Claimants’ Counsel , the right of the defendant to cross examine CW1 and CW2 was foreclosed and the matter was adjourned to 16/5/2018 for defence. On the 16/5/2018 when the matter came up for defence, the defendant was not in court nor its counsel to defend the case despite the hearing notice served on it. The matter was then adjourned to 9/7/2018 for adoption of the parties written addresses. The Claimants filed their final written and served same on the defendant on the 8/6/2018. An affidavit of service sworn to on the 12/6/2018 was filed to the effect that the defendant was served with a copy of the Claimants’ final written address. As a result of that, Claimants’ final written address dated 30/5/2018 was adopted by the Claimants’ counsel.
SUBMISSION OF THE CLAIMANTS
Claimants filed their final written address on 30/5/2018 wherein they raised a sole issue for determination. The issue is whether the Claimants are entitled to their terminal benefits based on the defendant letter dated 14/11/2018?
It is the submission of the Claimants that they have proved their case by the testimonies of CW1 and CW2 and the Exhibits so far admitted in evidence. It is the further submission of the Claimants that despite several adjournment at the instance of the defendant and hearing notices issued and served on it, the defendant did not appear in court to defend itself and it is clear according to the Claimants that from the facts and circumstances of the case, the defendant has no defence to the claim of the Claimants. Claimants submitted that they have proved that they were employees of the defendant and after their services were terminated, they have not been paid their terminal benefits by the defendant which the defendant acknowledged in Exhibit CW1F. That the Claimants have discharged the burden placed on them by giving unchallenged and uncontradicted evidence of indebtedness of their terminal benefits by the defendant.
COURT’S DECISION
I have considered the processes filed in this case,the evidence led, Exhibits admitted and the submission of the counsel to the Claimants and Iam of the opinion that the issue for determination in this case is whether the Claimants have made out a case entitling them to the reliefs claimed?
In considering this, It should be noted that the claim of the Claimants is that they are entitled to their terminal benefits after being retired from the service of the defendant. From the complaint of the Claimants, the Claimants sought for a declaration that the they are entitled to their retirement/terminal benefit as per Exhibits CW1C and CW2C and 5,000,000.00 (Five Million naira) each as damages for the hardship experienced by the Claimants from the 14th November 2014 till judgment. However by the Claimants’ amended statement of facts, the Claimants sought for two million Naira each as their retirement/terminal benefits and six million Naira as damages for the hardship experienced by the Claimants. It appears from the foregoing that the amended statement of facts is slightly at varience with the initial complaint. But it is the law that since order 31 of the rules of this honorable court , 2017 prescribes that a statement of fact shall specifically state the reliefs claimed, then it must be taken that the statement of fact automatically alters, modifies or extends the complaint without the necessity of a formal order of amendment of the complaint. The law is settled that a statement of claim supercedes the writ as the claim is crystallised when the statement of claim is filed. See Lahan V Lajoyetan (1972) 6 SC 190. Fafahunsi V The Shell Company Nigeria Ltd. (1969) N.M.L.R. 304.
The Claimants in their attempt to prove that they were retired by the defendant and they are entitled to their terminal benefits tendered Exhibits CW1C and CW2C. The contents of the said Exhibits which are the same are as follows;
“Dear Sir,
NOTICE OF RETIREMENT FROM SERVICE
This Memo serves as one months notice of compulsory retirement from the services of DAAR Communication PLC having not only reached the mandatory retirement age of 65 but exceeded same.
The one month notice of compulsory retirement takes effect from Monday the 17th November, 2014 to Tuesday the 16th of December 2014.
On behalf of the board, management and staff of the organisation, we thank you for services rendered towards the growth and development of the company, particularly at the port Harcourt center.
Kindly ensure a proper hand over of all company property in your possession, especially the staff ID card and work tools that may have been entrusted to you.
Your terminal benefit shall be computed, and AIT Head quarters Finance, is by a copy of this letter , expected to facilitate the payment of your entitlement, less your indebtedness (if any) by your effective date of retirement.
Be assured of our kindest regards.
For: DAAR Communications PLC
PAULYN OWHIEVBIE UGBODAGA
Executive Director,
Admin, and Human Resources Development”
It is evident from Exhibits CW1C and CW2C that there is no mention of a specific amount to be given to the Claimants, but the Exhibits only said that the terminal benefits of the Claimants shall be computed and given to them.
It is important to state that the terminal benefits of the Claimants are special damages which have to be specifically proved and pleaded. See U.T.C. V Nwokoruku (1993) NWLR (Pt. 282) 295. Although, the Claimants pleaded the sum of 2,000,000 each as their terminal benefits but they have not been able to specifically prove how they came about the said sums of money. It is Doubtless that the Claimants are entitled to their terminal benefits as stated in Exhibits CW1C and CW2C but it is doubtful going by the said Exhibits how much would be given to the Claimants.
I wish to state that although the defendant did not file a defence to the Claimants’ claims but the Claimants will only succeed on the strength of their own case not on the weakness of the defence. But where the case of the defence supports the claim of the claimants, then Claimants are entitled to rely on the supportive evidence of the defendant. See Akinola V Oluwo (1962) 1 S.C.N.L.R. 352. So also where the defendant does not call evidence at trial, the onus of prove on the Claimant will be discharged on a minimal of proof. See Ajidahun V Ajidahun (2000) NWLR (Pt. 654) 605
In any event, the Claimants have been able to prove the following facts;
That they were employed by the defendant;
That the defendant terminated their employment;
That the defendant admitted that the Claimants are entitled to their terminal benefits;
That the terminal benefits have not been paid to the Claimants;
That the the defendant in Exhibit CW1F admitted that the terminal benefits of the Ist and 2nd Claimants are #953,677.37 and #824,388.79 respectively and that the cost of litigation and other out of pocket expenses shall be the sum of 500,000.
Exhibit CW1F states as follows;
“ATTN: E.E. OBOMANU, ESQ
Dear Sir,
RE: OUT OF COURT SETTLEMENT FOR SUIT NO. NIC/58/2016- AMADI CHUKWU & 1 ANOR VS. DAAR COMMUNICATION PLC.
We hereby refer to your recent telephone conversion with our Executive Director Legal Services, Mrs. Mary Lawrence-Dokpesi regarding the above subject.
As discussed, please find below are the terms of the settlement in the suit:
a. That both parties recognise that the entire indebtedness owed by DAAR to the plaintiff is categorized as follows:
(i) Amadi Chukwu- N953,677.37
(ii) Woko Anthony Onu-N824,388.79
b. That DAAR pays all outstanding salaries and allowances due to the plaintiffs in two (2) equal instalments commencing from the Month of May, 2016 through June, 2016.
c. That these amounts shall be full and final payments of total indebtedness to the plaintiffs.
d. That cost of litigation and other out of pocket expenses shall be the sum of N500,000 as full and final payments, payable to the plaintiffs’ counsel.
e. That plaintiffs’ counsel expenses above shall also be paid by DAAR to the counsel in two (2) equal instalments, commencing from the Month of May, 2016 through June, 2016.
f. That the mutually agreed terms should now be made judgement of the court in the matter.
Please kindly confirm your acceptance of these terms by a return mail to enable us conclude.
Kindly accept the assurances of our highest regards.
Mary Lawrence- Dokpesi
Executive Director, Legal Service”
Going by the foregoing facts that have been proved by the Claimants and not been disproved nor denied by the defendant, I hereby make the following declarations;
That the defendant shall pay the ist Claimant( Amadi Chukwu) the sum of #953,677.37 as his terminal benefit as per Exhibit CW1F.
That the defendant shall also pay the 2nd Claimant (Woko Anthony Onu) the sum of #824,388.79 as his terminal benefits as per the said Exhibit CW1F.
That the defendant shall pay the sum of 2,000,000 to both the Claimants as cost of this action. See NIPOST v. Musa [2013] LPELR-20780(CA), where the Court of Appeal recognized the various costs to which a party is entitled to in litigation and according to the Court in the award of costs, the Court is expected to consider all the circumstances of the case. The relevant considerations in the award of cost by the Courts have been enunciated in a number of cases by the appellate courts. In Adelakun vs. Oruku (2006) 11 NWLR Pt. 992 p. 625 @ 650, the Court of appeal has laid down certain factors to be taken into consideration in awarding costs. They are:
(a) the summons fees paid
(b) the duration of the case
(c) the number of witnesses called by the successful party
(d) the nature of the case of the parties, the plaintiff’s case or the defence of the defendant, whether frivolous or vexatious
(e) cost of legal representation
(f) monetary value at the time of incurring the expenses; and
(g) the value and purchasing power of the currency of award at the time of the award.
Considering these issues, I find that the claimants are entitled to the cost so far awarded against the defendant and I so hold.
That the above judgment sums shall be paid within one month from the date of the this judgement.
Judgement is entered accordingly.
HON. JUSTICE SALISU HAMISU DANJIDDA
JUDGE
