CHIOMA OGUEJIOFOR -VS- JOSEPH SUNDAY ANI

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE I. G. NWENEKA

DATE: 19th February 2018 SUIT NO. NICN/ABK/05/2017

BETWEEN

CHIOMA OGUEJIOFOR … CLAIMANT

AND

JOSEPH SUNDAY ANI … DEFENDANT

[Trading under the name and style,

Josachi Technologies Computer School]

REPRESENTATION:

Festus Sunday Nweke Esq. for the Claimant

Chidozie Chukwuma Chidozie Esq. for the Defendant.

JUDGMENT

The Claimant by a Complaint filed on 28th November 2017 claimed against the Defendant as follows:

An order for the Defendant to pay the outstanding debt of N389, 500.00 [three hundred and eighty nine thousand, five hundred naira] only admitted by the Defendant as unpaid arrears of salary to the Claimant.

20% interest per annum on the amount in relief [a] above from February 2017 till judgment and thereafter at the same rate until judgment is fully liquidated.

The sum of N1, 000,000.00 [one million naira] only as general damages.

The Claimant filed alongside the Complaint a Statement of Facts, list of witnesses and witness’ deposition, list of documents and copies of the documents. The processes were served on the Defendant on 29th November 2017. The Defendant, though informed of his right to a Counsel of his choice, did not brief a Counsel and did not file any defence processes. The matter came up for mention on 17th January 2018. Parties were present and by consent of parties and the Court, the matter was set down for trial. Trial commenced and was concluded on 22nd January 2018. The Claimant testified in support of her claim. She adopted her statement on oath dated 28th November 2017 as her evidence in proof of her claim. She tendered 2 exhibits. Exhibit A is the acknowledgement of debt dated 20th September 2017 signed by the Defendant. Exhibit B is the Claimant’s Solicitors’ letter of demand of the sum of N389, 500.00. The Defendant did not file a defence and statement on oath. However, pursuant to Order 5 rule 6[2] and [3] of National Industrial Court [Civil Procedure] Rules, 2017, the Defendant was allowed to cross examine the Claimant and give oral evidence in his defence. Thereafter, he was cross examined by the Claimant’s Counsel. On conclusion of trial, the case was adjourned to 29th January 2018 for adoption of final written addresses. On 29th January 2018, Chidozie Chukwuma Chidozie Esq. appeared for the Defendant and asked for an adjournment to study the written address filed by the Claimant’s Counsel and make appropriate response. The case was adjourned to 2nd February 2018. On 2nd February 2018, learned Counsel for the Claimant, Mr. Nweke, adopted his final written address dated and filed on 29th January 2018. Mr. Chidozie, learned Counsel to the Defendant, said he had nothing to urge on the Court since the Defendant had admitted liability for the debt. The matter was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant’s case is that she was an employee of the Defendant at Josachi Technologies Computer School, 19 Afikpo Road, Abakaliki, Ebonyi State between September 2011 to January 2017. The Claimant testified that the Defendant was the sole proprietor of Josachi Technologies Computer School which is engaged in computer training and she was one of the computer instructors. The Claimant also stated that she was entitled to a monthly salary of N7, 000 which was later increased to N10, 000 per month in addition to a daily allowance. She said the Defendant did not pay the salary and allowances regularly resulting in arrears of salaries and allowances. Due to the inability of the Defendant to pay the salaries and allowances, he told the Claimant to keep a record of the outstanding salaries and allowances. By the Claimant’s records a total sum of N552, 000 and N60, 500 was owed to her as salaries and allowances respectively. She testified that her repeated oral demands were ignored by the Defendant resulting in the intervention of her family. It was at this point that the Defendant disputed his indebtedness for the first time. She reported the matter first at the Office of National Human Right Commission, Ebonyi State for arbitration where the Defendant admitted the sum of N394, 500 as outstanding salaries owed to her. Due to the Defendant’s failure to pay the admitted sum, the Claimant again reported the matter to the Family Law Centre where the Defendant confirmed in writing that he owes her the sum of N394, 500 and undertook to liquidate it by monthly instalments, exhibit A. The Claimant testified that the Defendant reluctantly paid the sum of N5, 000 whereupon she briefed her Solicitors who made final demand on the Defendant, exhibit B and subsequently this suit. She said she incurred “financial damages in retaining the services of Counsel to write the letter of demand and prosecute this suit”. The Claimant confirmed, under cross examination, that she resigned in June 2017.

DEFENDANT’S CASE

The Defendant’s case is that the Claimant was a computer trainee in Savannah Institute of Technology where he worked as a Manager in 2011. After the training, she registered for website designing and on completion of her training in website designing he employed her as his Assistant and agreed to pay her the sum of N7, 000 monthly as salary. On 22nd September 2012, he established Josachi Technologies Computer School and employed the Claimant as his Assistant in that School on a monthly salary of N10, 000. In May 2013, he got an offer to set up a non- governmental organization, United for Goodluck Success, and he proposed to make the Claimant the National ICT Manager and based on that he agreed with the Claimant on a daily pay of N500 but the Claimant’s parents refused and insisted on the monthly salary of N10, 000. A disagreement ensued and he told the Claimant to go. The Claimant subsequently returned and they worked together till 8th June 2017 when she eventually resigned. He confirmed execution of exhibit A and receipt of exhibit B. He admitted liability for the sum of N394, 500 and agreed to settle it. Under cross examination, the Defendant confirmed that he paid the sum of N5, 000 out of his outstanding indebtedness of N394, 500.

SUBMISSION ON BEHALF OF THE DEFENDANT

Learned Counsel to the Defendant did not file any written address and did not urge anything on the Court since the Defendant has admitted liability for the debt.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant’s final written address is dated and filed on 29th January 2018. The Claimant raised one issue for determination namely, “whether from the evidence before the Honourable Court, the Claimant has proved her case to be entitled to all the reliefs as contained in the Complaint?”

Arguing the lone issue, learned Counsel to the Claimant submitted that the Claimant owes a duty to prove her case with credible evidence to be entitled to the order of this Honourable Court and referred to sections 131-133 of the Evidence Act, 2011 and the case of Adekunle v. A. G. Ogun State [2014] LPELR-22569 at page 22. He submitted that there is uncontradicted evidence before the Court that there was an oral agreement between the Claimant and the Defendant for payment of salary while she worked for the Defendant. He also submitted that both in exhibit A and from the witness box the Defendant admitted liability for the sum of N394, 500 as the debt due from him to the Claimant out of which he has paid the sum of N5, 000 leaving a balance of N389, 500 unpaid. Continuing, learned Counsel submitted that by virtue of the admission of the Defendant in exhibit A and in his oral testimony in Court, the Claimant has fully and substantially discharged the burden of proving relief one in the complaint. He further submitted that facts admitted need no further proof and referred to section 123 of the Evidence Act and Bendel Pilgrim Welfare Board v. Irawo [1995] 1 NWLR [pt. 369]. On relief two, he submitted that where the Claimant was deprived of her money, the Defendant who used the money ought to compensate the Claimant for the deprivation and referred to the case of International Offshore Construction Ltd. v. S. I. N. Ltd [2003] 16 NWLR [pt. 845] 157. On relief 3 learned Counsel submitted that award of general damages is discretionary and urged the Court to exercise the discretion judicially and judiciously and referred to Salau v. Araba [2004] All FWLR [pt.204] 88

COURT’S DECISION

I have read and understood the statement of facts and witness deposition filed by the Claimant and listened to the oral testimonies of the Claimant and the Defendant and watched their demeanour. I have also read and carefully evaluated the 2 exhibits tendered and admitted in this case and the written address filed by learned Counsel to the Claimant. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved her case on a balance of probability to entitle her to judgment? It is settled law that in civil cases, the burden of proof is on he who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26, Senator Chris Adighije v. Hon. Nkechi J. Nwaogu & Ors. [2010] LPELR-4941 [CA] 79-80 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, [2004] 2 NWLR [pt.856] 100. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. However, by section 123 of the Evidence Act, facts which are admitted require no further proof. See also the case of Shittu Sanusi & 2Ors. v. Buraimo Obafunwa & Another [2006] LPELR-11863[CA] at page 26, where Augie, JCA [as he then was] held:

“…it is trite law that facts admitted require no proof because an onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. If the Plaintiff’s claim is admitted, that will be the end. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. In summary, what is not denied is deemed admitted and what is admitted need not be proved.”

The Claimant’s first relief is for an order for the Defendant to pay the outstanding debt of N389, 500.00 [three hundred and eighty nine thousand, five hundred naira] only admitted by the Defendant as unpaid arrears of salary to the Claimant. The Defendant in the witness box admitted signing exhibit A and receiving exhibit B. He admitted liability for the sum of N394, 500 less the sum of N5, 000 which he paid before commencement of this suit. In In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] at page 20, per Eko, JCA, held “The law espoused in Joe Iga v. Chief Ezekiel Amakri [1976] 11 SC 1; Gwani v. Ebule [1990] 5 NWLR [pt.149] 201; Vaswani v. Johnson [2000] 11 NWLR [pt. 679] 582 and recently applied by this Court in the unreported Oil Gas Export Free Zone Authority v. Dr. T. C. Osanakpo [CA/PH/366/2005 of 20th January 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.” Applying these decisions to this case, the Defendant is presumed to have admitted the sum of N389, 500 claimed in Exhibit B. This is in addition to his admission in exhibit A and in the witness box. I therefore find and hold that the Claimant has proved relief one. Accordingly, I enter judgment in favour of the Claimant against the Defendant for the sum of N389, 500.00 [three hundred and eighty nine thousand, five hundred naira].

In relief two, the Claimant seeks 20% interest per annum on the sum of N389, 500 from February 2017 till judgment and thereafter at the same rate until the judgment sum is paid. There is no evidence before the Court in proof of the claim for interest. The submission of Counsel cannot take the place of evidence. It is trite that the Court can only award a pre-judgment interest where there is an agreement for payment of interest or under mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be specifically pleaded and strictly proved. See the cases of United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2013] LPELR-20692[CA] 49 and Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc [2006] LPELR-11756[CA] at page 21. In Berliet Nigeria Ltd. v. Alhaji Mustapha Kachalla [1995] LPELR-775[SC] at page 44-45, Ogundare, JSC held: “There clearly is a difference between award of interest pre-judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the court.” Ordinarily in claims for arrears of salaries interest is not usually awarded to the successful party because the relationship of employer-employee does not envisage payment of interests on overdue salaries. I therefore find and hold that the claim for pre-judgment interest fails and is hereby dismissed. Pursuant to Order 47 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017, I order that the Defendant shall pay interest on the judgment sum of N389, 500 and any portion thereof remaining unpaid at the rate of 10% per annum after 30 days from the date of this judgment on a reducing balance basis until the judgment sum is fully liquidated.

The Claimant in relief 3 claimed the sum of N1, 000,000 [one million naira] as general damages. In proof of the claim for general damages, the Claimant stated in paragraphs 21 and 22 of her statement on oath that she expended a lot of energy, time and resources moving from her School to attend the arbitral proceedings and incurred ‘more financial damages’ in retaining the services of Counsel. In admitting liability for the debt, the Defendant testified that the Claimant was the Manager of the business and possessed the ATM card and knew when money was paid into the account. He further stated that his failure to pay was due to non availability of funds. It is my respectful view that in these circumstances award of general damages would be inappropriate. In Selcon Tannery Limited v. Mr. Bala Abubakar & Ors. [2013] LPELR-21412[CA] at page 21, it was held that in a case where the Court has entered judgment in favour of the Claimant for salaries and allowances it would be improper to award general damages. This is more so as the Claimant was the Manager of Josachi Technologies Computer School till her resignation in June 2017. The claim for general damages is refused and accordingly dismissed.

On the whole, the Claimant’s case succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Claimant for the sum of N389, 500.00 [three hundred and eighty nine thousand, five hundred naira] together with interest at the rate of 10% per annum from 19th March 2018 on a reducing balance basis until the judgment sum is fully liquidated. The claims for pre-judgment interest and general damages are hereby dismissed. Cost of N20, 000 is awarded against the Defendant in favour of the Claimant.