Ashibel Justina -VS- Prudential International School Ltd & 2 ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE K.D. DAMULAK.

DATED THIS 16^THDAY OF OCTOBER 2019

SUIT NO. NICN/ABJ/306/2018

BETWEEN:

ASHIBEL JUSTINA …………………………………………………. CLAIMANT

AND

1.PRUDENTIAL INTERNATIONAL SCHOOL LTD

2.DR. PATRICT NGASSO …………………………………….DEFENDANTS

3.NGOUTANE MARIAMA

REPRESENTATIONS:

John Abutu Esq. for the claimant

No legal representation – for the defendants

JUDGMENT

1.0 INTRODUCTION

This judgment is based on a claim for salaries arrears. The claimant took out a complaint accompanied by statement of facts, witness statement on oath, list and copies of documents on the 9^th of November, 2018. The claimant seeks the following reliefs:

A DECLARATION that the Claimant is entitled to six months’ salary arrears owed and payable to her by the Defendants in the total sum of three hundred and sixty thousand naira only (N360,000:00 ).
AN ORDER of the Honourable Court commanding and directing the Defendant herein to pay to the Claimants the arrears of the six months’ salary in the total sum of three hundred and sixty thousand naira only (N360,000:00), forthwith.
AN ORDER of the Honourable Court commanding and directing the Defendants herein to pay the sum of two hundred and fifty thousand naira only (N250,000:00) as cost of expenses incurred in the course of recovering the said arrears of the six months· salary in the total sum of three hundred and sixty thousand naira only (N360,000:00) owed and payable to the Claimant by the Defendant.
Cost of action in the sum of one hundred thousand naira only (N100,000.00).
20% post judgment interest until the final liquidation of the Judgment sum to be awarded in favour of the Claimant.

The defendants did not file a statement of defence and did not defend the suit.

2.0 FACTS OF THE CASE

The claimant was an employee of the defendants and later resigned. She claims that she was owed six months arrears of salaries as at the time of her resignation, thus this suit.

3.0 CASE OF THE CLAIMANT

The claimant testified in line with her statement of facts as CW1 by adopting her written witness statement on oath on 7/3/2019 as follows;

She was employed sometime in 2016 by the Defendants in a teaching capacity on probation with a monthly salary of fifty thousand naira only (N50, 000.00), until the 5^th day of May, 2017. The Defendants confirmed her appointment as a full staff on the5^th day of May, 2017 vides a letter of confirmation of appointment. Her monthly salary upon confirmation of appointment was increased to sixty thousand naira only (N60, 000.00), effective from the month of May, 2017. The Defendants did not pay her monthly salaries of N60, 000.00 for the months of October, November and December, 2017 amounting to N180, 000.00. The Defendants also did not pay her monthly salaries of N60, 000.00 for the months of July, August and September 2018amounting to N180, 000.00. The total sum of arrears of salaries owed the claimant for the six months amounts to N360, 000.00.

Due to the inability of the defendants and to pay her monthly salaries as at when due, she voluntarily resigned from the employment of the 1^st Defendant vides a letter of resignation dated the 18^th day of September, 2018 with effect from the 30^th day of September, 2018. The defendants informed her that she will be paid her full arrears of salaries on or before the 30^th day of September, 2018 but failed, refused, and, or neglected to pay same to her.

She paid N100, 000.00 to her solicitors to write a letter of demand to the defendants and N150, 000.00) as Solicitor’s professional fees for the institution of this action.

The claimant tendered the following documents as exhibits and they were admitted in evidence and marked as follows;

Confirmation of appointment – Exhibit AJ1
Letter of resignation – Exhibit AJ2
Claimant’s First Bank statement of Account – Exhibit AJ3
Claimant solicitor’s letter – Exhibit AJ4
Solicitors acknowledgment for payment of N100,000.00 – Exhibit AJ5
Solicitors acknowledgment for payment of N150,000.00 – Exhibit AJ6

4.CASE OF THE DEFENDANTS

Upon service, the defendants, through their counsel, Gabriel A. Akoja Esq., filed a memorandum of appearance, which the registry failed to stamp and assess, and a notice of preliminary objection on 11/3/2019.The defendants filed nothing further.

The claimant testified as CW1 on 7/3/2019 and the case was adjourned to 15/3/2019 for cross examination of CW1,the defendants were served with hearing notices on 11/3/2019 for 15/3/2019.On the said 15/3/2019, learned Gabriel Akoja appeared for the defendants, in spite of objection from claimants counsel on the ground that his memorandum of appearance was not stamped, the case was adjourned to 11/4/2019 for cross examination, hoping that he would make effort to regularize same but he never did. On the 11/4/2019, no counsel appeared for either party and the case was further adjourned to 13/6/2019 for cross examination. On 13/6/2019 the court did not sit and the matter was adjourned to 24/6/2019 for cross examination. On the said 24/6/2019, no counsel appeared except the claimant and the case was adjourned to 15/7/2019 for cross examination. The defendants were also served on 25^th /6/2019 for 15/7/2019. On the said 15/7/2019, defendants and their counsel were absent again.

The defendants were foreclosed from cross examining the CW1 and she was discharged and the case adjourned 16/9/2019 for address. The defendants as well as their counsel were again served on 13/9/2019 for 16/9/2019. On the said 16/9/2019, defendants and counsel were absent and the claimant counsel adopted his final written address. The abandoned notice of preliminary objection was also struck out and this case adjourned for judgment.

FINAL WRITTEN ADDRESS OF THE CLAIMANT’S COUNSEL

Claimant’s counsel, learned John Abutu Esq. formulated a lone issue and submitted that the claimant has established the fact of her employment, monthly salary, her resignation and arrears of salaries.

On N250,000:00 paid to solicitors as cost of expenses incurred in the course of recovering the said arrears of the six months ’salaries, learned counsel contended that the law is settled that a party is entitled to damages for cost, which includes Solicitor’s fees and out of pocket expenses. According to counsel, claimant has proved by both oral and documentary evidence that she incurred such expenses. Counsel relied on the following cases;

1.NAUDE V. SIMOM (2014) ALL. FWLR (PT.753) CA 1878.

SPDC V. OKONEDO (2008) 9 NWLR (PT,1091) P.85 CA.
INTERNATIONAL OFFSHORE CONSTRUCTION LTD & 3 ORS V. SHORELINE LIFEBOATS NIG. LTD (2003) 16 NWLR (PT. 845) P.157 CA;
LONESTAR DRILLING NIG.LTD V. NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR-4437 CA;

5.UNION BANK OF NIGERIA PLC. V. MR. N.M. OKPARA CHIMIEZE (2014) LPELR-22699 SC.

On cost, counsel submitted that costs are awarded as an indemnity to the person who has suffered some loss. Once the act of damnification is found, then costs follow events. The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. REG. TRUSTEES OF IFELOJU V. KUKU (1991) 5 NWLR (PT.189).

On 20% post judgment interest, counsel submitted that the basis for award of interest could be the fact that the Plaintiff has been kept out of his money for a period and the Defendant who had use of the money for himself ought to compensate the Plaintiff for the deprivation. INTERNATIONAL OFFSHORE CONSTRUCTION LTD & 3 ORS V. SHORELINE LIFE BOATS NIG. LTD (2003) 16 NWL R (PT. 845) P.1S7 CA,

That Order 47 rule 7 of the 2017 Rules of this court allows the court to award post- judgment interest of not less than 10%.

ISSUES FOR DETERMINATION

The claimant formulated an issue for determination thus;

Whether the claimant has established her case to entitle her to the reliefs sought in this action.

Same is hereby adopted as the issue for determination herein.

COURT DECISION

I have read the claim, the witness deposition and also studied the exhibits attached as well as the claimant’s counsel written address and adopted his issue for determination. The defendants had filed a preliminary objection which they abandoned. The complaint in the objection is that there is no signature of counsel and his stamp , neither that of the claimant on the originating process, I have observed the complaint, I find that one Sylvester Obinka Esq. of counsel for the claimant signed the complaint on pages 3 and 4 and his NBA Stamp is on page 3. The objection is lacking in merit even if the court were to consider same.

As earlier pointed out, the defendant was given several opportunities but he refused to participate thus the claimant was heard and this case proceeded to judgment because justice and fair hearing is a two way traffic. See

ALHAJI (CHIEF) WAIDI OLATUNJI v. LASISI ADEDAPO & ORS (2013) LPELR-22155(CA) where the court per Dongban –Mensem J.C. A held;

The Apex court has severally held that fair hearing is a two way traffic. (Refers Oguntayo v. Adelaja (2009) ALL FWLR (pt. 495) page 1623 @ 1640).

When a party is put on notice of a pending process against him but elects to stall the progress of the proceeding by an epileptic participation; a court is at liberty to proceed without such a party. After several adjournments at the Appellant’s instance, he failed to avail himself of the indulgence granted to him and at the expense of the opponent.

On the claim for salaries arrears for the months of October, November and December, 2017 and the months of July, August and September 2018 at the rate of N60,000.00 per month amounting to N360,000.00, I find that the evidence of the claimant is credible, I believe her and since there is no contrary evidence, I hold that the claim is proved.

On the claim for N250,000.00 being cost of engaging solicitors, the position of the law as it stands today is that where solicitors fees does not arise as a result of damage suffered by the claimant in the cause of any transaction between him and the defendant, but if it occurred after the cause of action in the case had arisen, it does not form part of the claimant’s cause of action and it is not claimable.

In UNION BANK OF NIGERIA PLC V. MR. N.M. OKPARA CHIMIEZE (2014), relied upon by claimant, the lower trial high court decided the case in 2006 and the Court of appeal and Supreme Court affirmed same but the courts did not consider the question of public policy as done in later cases.

In S.P.D.C. v. OKONEDO (2007) ALL FWLR (Pt. 368) 1104 at 1137 – 1138 (CA) relied upon by counsel the court accepted solicitors fees only on the ground that it formed part of the plaintiffs cause of action. The Court Per Abba – Aji, JCA held as follows;

“On the award of N10,000.00 (ten thousand naira), special damages for solicitor’s fees, I did not agree with the submission of the learned counsel for the appellant that the award of special damages for solicitor’s fees is unknown to our law. With respect to the learned counsel, the case of Guinness (Nig.) Plc. v. Nwoke relied upon by the appellant’s counsel in support of his submission that award of special damages for solicitor’s fees is unknown to law can be clearly distinguished from the facts and circumstances of the present appeal. In Guinness (Nig.) Plc. the cross-appellant’s case was that, the cross-appellant solicitor’s fees was in the nature of special damages and that same has been pleaded and testified on them and backed up his testimony by receipts. In considering this issue, the Court of Appeal, Per Ibiyeye JCA, agreed with the submission of learned counsel but questioned whether this head of claim arose as a result of damage suffered by the cross-appellant in the cause of any transaction between him and the cross-respondent and held that a reasonable tribunal such as this court will definitely opine that the quality of evidence adduced by the cross-appellant on this score fell below the standard of acceptability because the circumstance making up the so called ‘special damages’ occurred after the cause of action in this case had arisen. That it is also unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party, in this case, the cross-respondent. In the instant appeal, a distinction can be clearly drawn with the case of Guinness (Nig.) Plc. While in the Guinness (Nig.) Plc. What was claimed as special damages was ‘his solicitor’s fee’, cross appellant’s solicitor’s fee, a staggering sum of N5,000,000.00 which arose after the cause of action had arisen. In the instant appeal, the claim is not for ‘his solicitor’s fees’, but what he was made to pay to the Makamuza Client Service’s solicitor to have matter for the breach of car hire agreement settled out of court, the sum of N10,000 which he claimed as special damages. This fact was established also by the evidence of PW3, the legal practitioner, Mr. Christopher Agheja. The lower court accepts as proved the payment of N10,000 (ten thousand naira) which PW3 confirms in his evidence under the claim for special damages. The award of N10,000 (ten thousand naira) special damages is therefore proper and not one that can be termed as unethical and an affront to public policy.” my lord in this case affirmed the position that payment of solicitors fees is unethical and an affront to public policy where the expenses on the solicitor was incurred after the cause of action, It however affirmed the payment of N10,000 incurred in the course of out of court settlement.

In PRINCE UGOH MICHAEL v. ACCESS BANK OF NIGERIA PLC(2017) LPELR-41981(CA)Per Ogakwu, J.C.A. at Pp. 48-49, held as follows;

Be that as it may, it seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant’s cause of action. From the Respondent’s pleadings, its cause of action is the alleged defamation of its corporate name by the Appellant. The claim for Solicitors fees for defending the Appellant’s action and for prosecuting its counterclaim in respect of its said cause of action does not form part of the Respondent’s cause of action. In GUINNESS NIGERIA PLC vs. NWOKE (2000) 15 NWLR (pt. 689) 135 at 159 this Court held that a claim for Solicitors fees is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between the parties. Similarly, in NWANJI vs. COASTAL SERVICES LTD (2004) 36 WRN 1 at 14-15, it was held that it was improper, unethical and an affront to public policy, to have a litigant pass the burden of costs of an action including his Solicitors fees to his opponent in the suit. Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the Claimant’s cause of action, is not one that can be granted.

In IBE & ANOR V BONUM (NIG) LTD (2019) LPELR CA, the court of appeal Per OGAKWU, J.C.A. at Pp. 35-39 held as follows;

Now, is the “cost of representation in an action” part of the Appellants’ cause of action? The Appellants’ cause of action is for libel. Is the cost of his Solicitors fees part of that cause of action? in the diacritical circumstances of this matter are the Appellants entitled to the award of the relief of their Solicitors fees, legal cost or by whatever name called? In MICHAEL vs. ACCESS BANK (2017) LPELR (41981) 1 at 48-49, I was privileged to state at follows:

“…it seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant’s cause of action. From the Respondent’s pleadings, its cause of action is the alleged defamation of its corporate name by the Appellant. The claim for Solicitors fees for defending the Appellant’s action and for prosecuting its counterclaim in respect of its said cause of action does not form part of the Respondent’s cause of action. In GUINNESS NIGERIA PLC vs. NWOKE (PT 689) 135 at 159 this Court held that a claim for Solicitors fees is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between the parties. Similarly, in NWANJI vs. COASTAL SERVICES LTD (2004) 36 WRN 1 at 14-15, it was held that it was improper, unethical and an affront to public policy, to have a litigant pass the burden of costs of an action including his Solicitors fees to his opponent in the suit. Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the claimant’s cause of action, is not one that can be granted.” This remains the legal position as I know it. The Appellants cause of action was for libel. The claim for legal costs is not part of the said cause of action. Therefore, it cannot be granted.”

The claim for solicitors’ fees herein is for the fees paid to claimants counsel to write a demand letter and to prosecute this case. I find that the solicitors fees claimed in this case does not arise as a result of damage suffered by the claimant in the cause of any transaction between him and the defendant, but it occurred after the cause of action in this case had arisen, it does not form part of the claimant’s cause of action which is arrears of salaries, it is not claimable. By the above cited authorities, the court cannot grant such a claim. The claim for N250,000.00 being money spent on solicitors in this case is refused.

On post judgment interest, I agree with learned claimant counsel that the claimant is entitled to post judgment interest. Order 47 Rule 7 of the 2017 Rules of this court gives the court discretion. I accordingly award 10% post judgment interest.

On cost, I also agree that a successful party is entitled to cost, which is also at the discretion of the court. I accordingly award cost of N100,000.00 in favour of the claimant.

COURT ORDER

For the avoidance of doubt, the case of the claimant succeeds in part and it is hereby ordered as follows;

It is hereby declared that the Claimant is entitled to six months’ salary arrears owed and payable to her by the Defendants in the total sum of N360,000:00 (three hundred and sixty thousand naira) only.
The defendants are hereby ordered to pay to the claimant the sum of N360,000.00 (three hundred and sixty thousand naira) only representing her six months; salary arrears for the months of October, November and December, 2017 and the months of July, August and September 2018 at the rate of N60,000.00 per month.
The defendants are hereby ordered to pay to the claimant the sum of N100, 000.00 (One hundred thousand Naira) only as cost of this action.
The defendants are hereby ordered to pay to the claimant the judgment sum and cost amounting to N460,000.00 (for hundred thousand naira) only within 21 days of this judgment, failure upon which the sum shall attract 10 % interest per annum.

This is the judgment of the Court and it is entered accordingly.

………………………………

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA.