IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 16TH DECEMBER, 2019 – SUIT NO: NICN/KN/20/2018
BETWEEN
CHIDIEBERE OTEGWU – CLAIMANT
AND
DAAR COMMUNICATIONS PLC – DEFENDANT
REPRESENTATION:
Claimant – Present
Defendant – Absent
APPEARANCE
Jonathan Mshelizah, Esq. for the Claimant
Defendant Absent and unrepresented
JUDGMENT
The Claimant commenced this action by the writ filed on the 2nd of May, 2019 wherein he claims as follows:
- a)Declaration that the persistent refusal or failure to pay the Claimant his salary as arrears as well as other entitlements and or benefits including the Claimant accumulated unremitted Pensions since 2016 to date without any reason at all, is unfair, illegal and unlawful.
- b)Special damage in the sum of N306,270.89 (three hundred and six thousand two hundred and seventy naira and eighty nine kobo only) being salary in arrears which has accrued and remained unpaid as at November, 2016.
- c)Special damages in the sum of N437,602.57 (four hundred and thirty seven thousand six hundred and two naira fifty seven kobo only) being the claimant accrued accumulated unremitted pensions as at November, 2016.
- d)Special damages in the sum of N78,148.62 (seventy eight thousand one hundred and forty eight naira sixty two kobo only) being the claimant accrued unremitted NHIS.
- e)Special damage in the sum of N13,024.85 (thirteen thousand and twenty four naira eighty five kobo only) being the claimant accrued unremitted NHF.
- f)Special damage in the sum of N800,000 (eighty hundred thousand naira only) being the claimant’s severance benefits or ALTERNATIVELY severance benefits based on the claimant’s Quantum Meruit in the same sum.
- g)General damages in the sum of N3,000,000.00 (three million naira only) due to delay of payment thus denying the claimant’s interest on the unremitted pension, hardship occasioned to the claimants, several trips from Kano to the Defendant’s office in Abuja and Kano office to follow up as instructed by the defendant, breach of contract and incurring expenses on transportation, feeding and accommodation.
- h)N500,000 (five hundred thousand naira only) being the discounted professional fees incurred by the claimant in engaging the services of a legal practitioner to prosecute this matter.
- i)Cost of initiating and prosecuting this matter.
The writ was accompanied by the statements of facts, and witness statement on oath, list of documents to be relied on at the trial and a list of the witness.
It is worth stating at this stage of the Judgment that the defendant did not enter appearance throughout the proceeding even though hearing notice for each hearing date was served on it with proofs of service. The case first came up before this court on the 6th of June, 2016 by which date the Defendant was already out of time to file it defence and other processes in defence of the suit. The Claimants then proceeded over several adjourned dated to prove his case against the defendant.
THE CASE OF THE CLAIMANT
It is the case of the claimant from his adopted witness statement on oath, that he was in the employment of the defendant a duly registered company in Nigeria with office and presence throughout the cities and town of Nigeria including Kano with its head office in Lagos that he was in the employment of the defendant between the year 2009 – 2016.
It is his case that he was engaged as an English Editor of the Defendant strategic business unit and he was posted to Kano sometimes in February, 2009 and after medical examination he was certified fit for the job.
In proof of his case, the claimant tendered his letter of appointment dated 9th February 2009. He also averred that the appointment letter comprised of the conditions and terms of service that was intended to regulate the relationship between him and the defendant among other conditions that were encapsulated in the defendant hand book the claimant maintain that the term of offer include the basic salary, transport allowances, rent allowances, meal subsidy allowances, utility and such other allowances. He maintain that the relationship between the defendant and the claimant is also regulated by the labour law as well as the pension reform laws and NSITF. The claimant also maintain that the act of the defendant’s failure to comply with the condition and terms of relationship caused an immeasurable hardship prompting the Claimant to issue and forward his resignation letter dated September, 2016 in exhibit C which was accepted by the defendant through exhibit C1 dated 28 September, 2016.
The Claimant also maintain that the Defendant had not paid his salaries for 7 months as at the time he resigned as well as other entitlement. And that his effort for over two years to be paid by the defendant had not yielded any result which caused him to engage lawyers who wrote demand letters dated 15th January 2018 and 19th February, 2018 respectively which were all not responded to by the defendant leading to the present suit before the court.
Now, looking through the case file at pages 15 through to 33 are series of hearing notices and affidavit of services by which the defendant in this suit was repeatedly served and it neglected to put up an appearance to defend the suit against it and the claimant went on to testify and tendered exhibits and he was not cross examined.
THE WRITTEN ADDRESS AND COURT’S DECISION
On the 3rd October, 2019 the claimant through counsel filed his final written address which was subsequently adopted in absence of the Defendant. In that written address the sole issue, whether the claims of the claimants can be granted by this honourable court was formulated for determination. It was argued for the claimant in this suit that his claims bordered on payment of entitlements, that the defendant did not enter appearance and never appeared to defend the case that the defendant did not proffer any evidence at all. That the standard of proof where there is evidence of only one side of a party which is uncontroverted is based on a minimal of proofs, relying on DURU V. NWOSU (1989) 20 NSCL (pt 111) at 22 or 4 (1999) 8 NWLR (pt 113) 24 at 55. And went on to submit that the required standard of proof is based on minimal proof and not the normal balance of probabilities in contested civil cases.
This being the case, I find, and do hold that there is nothing that readily prevents me from finding for the claimant on this minimal of proof. That in other word he has proved his case substantially the Defendant having not put up appearance. Consequently, I hold that judgment is hereby entered in his favour as per the claims set out at the beginning of this Judgment in the following:
- a)It is hereby declared that the persistent refusal or failure to pay the claimant his salary in arrears as well as other entitlements and or benefits including the claimants accumulated unremitted Pensions since 2016 without reason is unfair, illegal and unlawful.
- b)The Defendant is to pay Special damages in the sum of N306,270.89 (three hundred and six thousand two hundred and seventy naira eighty nine kobo only) being salary in arrears which has accrued and remains unpaid as at November, 2016.
- c)The Defendant is to pay special damages in the sum of N437,602.57 (four hundred and thirty seven thousand six hundred and two naira fifty seven kobo only) being the claimant’s accrued accumulated unremitted pensions as at November 2016.
- d)The Defendant is to pay special damages in the sum of N78,148.62 (seventy eight thousand one hundred and forty naira sixty two kobo only) being the claimant accrued unremitted NHIS.
- e)The Defendant is to pay special damages in the sum of N13,024.85 (thirteen thousand and twenty four naira eighty five kobo only) being accrued unremitted NHF.
- f)The Defendant is to pay special damages in the sum of N800,000 (eight hundred thousand only) being the claimant’s severance benefit.
- g)The Defendant is to pay the sum of N500,000 (five hundred thousand naira only) as general damages to the claimant.
- h)The claim for legal fees is refused as it is not proved.
- i)Case of N100,000 (one hundred thousand naira is awarded against the Defendant.
All sums awarded against the Defendant are to be paid within 30 days of this Judgment to the Claimant.
Judgment is entered accordingly.
____________________________
HON. JUSTICE E.D.E ISELE
(JUDGE)
