IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
ACTING PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: NOVEMBER 19, 2019
SUIT NO. NICN/ABJ/149/2018
BETWEEN
Dr Kenneth Madiebo– Claimant
AND
1. Honourable Minister of Health
2. Federal Ministry of Health
3. Nigeria Centre for Disease Control (NCDC)
4. Chief Executive Officer/National Coordinator
Nigeria Centre for Disease Control (CEO/NC-NCDC) -Defendants
REPRESENTATION
E. E. Maga, with R. A. Umaru, for the claimant.
L. L. B. Iboroma, Senior State Counsel, for the defendants.
JUDGMENT
INTRODUCTION
1. By a complaint and statement of facts filed on 28th May 2018, the claimant claimed against the defendant for:
(1) A declaration that the defendants having failed or refused to pay the claimant his monthly salaries for over 40 months, that is, since October 2014 to January, 2018 are in fundamental breach of the Letter of Appointment dated 10th September, 2012.
(2) A declaration that the actions of the defendants to engage informal proxies to pay the claimant’s monthly salaries and causing a 20% deduction of $500 USD (Five Hundred United States Dollars) from the claimant’s monthly salaries are unjustifiable, illegal and fraudulent.
(3) An order directing the defendants to forthwith pay to the claimant the sum of $100,000 USD (One Hundred Thousand United States Dollars) as monthly salary arrears of 40 months, that is, from October 2014 to January, 2018.
(4) An order directing the defendants to pay to the claimant the sum of $2,500 USD (Two Thousand, Five Hundred United States Dollars) every month starting from February 2018 until the end of the contract of employment.
(5) An order directing the defendants to refund to the claimant all 20% deductions from his monthly salary ($500 USD i.e. Five Hundred United States Dollars) starting from September 2012.
(6) An order directing the defendants to pay the claimant the sum of N1,000,000 (One Million Naira) as cost of this action.
(7) Any further or other declaration(s) or order(s) that this Honourable Court may deem fit to make in the final determination of this suit.
2. The defendants entered conditional appearance and filed a preliminary objection, which was struck out on 8th March 2019. The defendants did not file any defence process; as such, the matter went to trial. The claimant testified as CW. Thereafter, parties were directed to file their respective final written addresses. The claimant’s final written address was filed on 10th September 2019. The defendants did not file any written address.
THE CASE BEFORE THE COURT
3. The claimant averred that he is a seasoned public health practitioner working in the employ of the defendants. That by a letter dated 10th September 2012, he was appointed as a Project Officer by the defendants and posted to work with the 3rd and 4th defendants on a monthly salary of $2,500 US Dollars. That while he was still under the employment of the defendants he was promoted and posted as Incident Head/Ebola Emergency Operations Centre (EEOC) Lagos via a letter dated 2nd October 2014. Thereafter, he was engaged in the fight against the dreaded ebola virus that threatened the lives of the citizens of the country at the time.That despite giving his best to battle the ebola virus, the defendants stopped paying his monthly salaries and have been owing him for over 32 months. The claimant then stated that prior to being owed by the defendants, his monthly salaries were subjected to an unlawful 5% deductions in the name of tax without the defendants providing evidence of such tax payment. The said tax deductions were done by proxies whom the defendants procured to pay the claimant’s salaries.That all amicable means including letter of demand by the solicitors to the claimant to the defendants for the payment of the claimant’s arrears of salaries proved abortive. The claimant then pointed out that the defendants refused to call evidence to defend the suit despite the service of all court processes including hearing notices on them. To the claimant, failure/refusal of the defendants to pay his monthly salary of $2,500 USD (Two Thousand, Five Hundred United States Dollars) since October 2014 amounts to a breach of a fundamental term of the contract of employment between him and the defendants.That the 20% monthly deductions from his monthly salaries by informal proxies of the defendants under the guise of ‘tax’ without providing proof of same are illegal, unjustifiable and fraudulent.
THE SUBMISSIONS OF THE CLAIMANT
4. The claimant submitted a sole issue for determination i.e. whether in view of the unchallenged evidence before the Court the claimant is entitled to the reliefs sought. In arguing this issue, the claimant submitted that the defendants having failed to challenge the suit before themare deemed to have admitted the claims of the plaintiff and minimal evidence is require in proof of same, citing Billie v. Multi-Links Telecoms Ltd[2017] LPELR-41862(CA). That the claimant in proof of its case testified and tendered the following documents:
(a) Letter of offer of employment by the defendant dated 10th September 2010 (Exhibit C1).
(b) Claimant’s letter of acceptance dated the 20th day of September 2012 (Exhibit C2).
(c) Claimant’s letter of appointment as Incident Manager/Head of Ebola Emergency Operation Centre, Lagos dated the 2nd day of October 2014 (Exhibit C3).
(d) Claimant’s letter of acceptance dated the 2nd day of October 2014 (Exhibit C4).
(e) Claimant’s solicitors letter to the defendants dated 12th day of June 2017 (Exhibit C5).
5. The claimant continued that he testified and tendered his witness on oath as to the following facts:
(i) That he is a seasoned public health practitioner
(ii) He was employed by the defendants as Project Officer on the 10th day of September 2012.
(iii) He was immediately posted to work with the 3rd and 4th defendants as Project Consultants (Research, Training and Information) on a monthly salary of $3,000 USD (Three Thousand United States Dollars).
(iv) That he was part of the Nigerian medical team that gallantly battled the dreaded Ebola virus threatening the country at the time.
(v) That the defendants stopped paying his salaries and was worried.
(vi) That he has not been paid salaries for over Thirty-Two months from October 2014 to September 2017.
(vii)The defendants prior to owing him arrears of salaries engaged proxies to pay his salaries and deducted 20% under the guise of tax without showing evidence of payment of such taxes.
(viii) The Memorandum of Understanding between the United States of America Center for Disease Control and the defendants was that he was to be paid $5,000 US (Five thousand United States Dollars) but was rather contracted and paid $2,500 (Two Thousand,Five United States Dollars).
(ix) The failure of the defendants to pay his salaries has left him in substantial financial hardship.
(x) Despite the letter of demand written by his solicitors, the defendants refused to pay his outstanding arrears of salaries.
6. To the claimant, his unchallenged evidence established all his claims. That the evidence did not only establish the existence of contract of employment between him and the defendant but also the fact that the defendant owes hm all the outstanding salaries and allowances claimed in this suit.That the defendant did not provide evidence in rebuttal of the claimant’s case. That the law is settled that where the defendant refused to defend a suit the only alternative for the Court is to give judgement in favour of the plaintiff, referring to Nwadike v. Ibekwe[1987] 18 NSCC (Pt. 2) 1219 at 1230 and Lawal &anor v. Umaru[2018] LPELR-46695(CA). The claimant then urged the Court to find and hold that the defendants having failed to file a defence to the claimant’s case he is entitled to the judgement of this Court. The claimant also urged that the Court should grant the plaintiffs’ claims in their entirety.
COURT’S DECISION
7. I have carefully considered the processes filed and the submissions of the claimant. Like I pointed out earlier, the defendant did not file any defence process. For this fact, the claimant believes, and indeed that is his argument, that he is entitled to judgment regarding his claims. The rule, by the minimal evidential requirement, is that a claimant cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 andOgunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. See also this Court’s decision in Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC. In any event, reliefs (1), (2) and (7) are claims for declaratory reliefs; and the claimant’s case in terms of all the reliefs is a claim for special damages, which is a claim for salary (both backlog as well as future). 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) held that a claim for gratuity, pension, housing fund, salary is a claim for special damages, which must be particularized and strictly proved. And by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), what appears to be an admission cannot apply to a claim for special damages.Put in another way, a claim for special damages cannot succeed because it is admitted. That special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. That to succeed in a claim for special damages, it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.
8. To start with, the reliefs of the claimant talk of salary. Paragraph 6 of the statement of facts as well as paragraph 6 of the claimant’s deposition put his monthly salary as $2,500 (USD). The supporting documentary evidence the claimant put forward is Exhibit C1, the letter of appointment dated 10th September 2012, which in paragraph 3 states thus: “You are to put in 100% of your time with an allowance of $2,500.00 per month. This amount will be paid in Naira at the prevailing exchange rate”. I asked the claimant’s counsel in open court whether “salary” and “allowance” are one and the same thing. I got no answer. In his pleadings and reliefs, the claimant is claiming for salary, which he claims in United State Dollars (USD). The documentary evidence he put forward in support to prove his salary says he is entitled to an allowance, which is denominated in USD but is to be paid in Naira. The claimant did not claim in Naira. Neither did he indicate what the exchange rate of the dollar to the Naira is in other to come within the terms of paragraph 3 of Exhibit C1, which state that the allowance (not salary) is to be paid in Naira at the prevailing exchange rate. What the exchange rate is, the claimant did not even plead. With all of this, can the claimant be said to have proved his claims, which are claims for special damages that must be particularized and strictly proved? I do not think so. Allowance may be earned by an employee in addition to salary, but it is not by itself the salary of the employee. So when the claimant claimed for salary and presented a document that only gave him allowance, the claimant cannot thereby be said to have strictly proved his claim for salary. I so find and hold. This being so, the claimant’s case must fail. It is accordingly dismissed for lack of proof.
9. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
