IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE:19thJune, 2017 SUIT Number: NICN/EN/141/2013
BETWEEN:
HON. MBONU CHUKWUDI S.==========CLAIMANT
AND
NKANU-EAST LOCAL GOVERNMENT===DEFENDANT
REPRESENTATION:
- U. Ugwu (Mrs) for the Claimant.
A.C. Mba Esq. for the Defendant.
JUDGMENT
The Claimant approached this Honourable Court with a Complaint dated and filed on 27th June, 2013. In the accompanying Statement of Facts, paragraph 20 thereof, he claims against the Defendant the following:
- WHEREOF the Claimant claims against the Defendant the following relief;
- a) An Order for the immediate release and payment ofN2,220,000.00 (Two Million, Two Hundred and Twenty Thousand Naira Only)being balance of the sum due to the Claimant as Severance allowance.
- b) An Order of 15% interest on the Judgment Sum from date of Judgment until the judgment sum is finally paid off.
In addition to the Statement of Facts, the Complaint was accompanied with a list of witnesses, written Deposition on oath of the Claimant, and copies of documents to be relied upon at trial. Upon being served with the originating processes of the Claimant, the Defendant filed a Statement of Defence on the 17/10/2013 with all its accompanying processes. Subsequent to this, the Claimant filed a reply to the Statement of defence with additional Statement on oath of the Claimant.
The matter proceeded to trial wherein the Claimant gave evidence as CW1 and tendered Exhibits C1, C2(a), C2(b), C3, C4, C5, C6, C7(a), C7(b), C7(c), C8, C9, C10 and C11. The Defendant was then given the opportunity to cross examine the CW1 but it did not appear in court. The defendant was then foreclosed and the matter adjourned for the defendant to present its defence. The Defendant and its counsel did not come to court and therefore the Claimant’s counsel was ordered to file his final written address.
The learned claimant’s counsel filed his written address dated 13th December, 2016 on the 15th of December, 2016. The Defendant’s counsel did not file any written address. The learned Claimant’s counsel adopted his written address.
In his written address the learned Claimant’s counsel formulated and argued a lone issue for the court’s determination, namely, whether the Claimant is entitled to the reliefs sought in his Claim?
Arguing the said issue, learned counsel described the contents of each of the exhibits tendered by the CW1. He stated further that the case of the Claimant is that he was elected for the office of councilor between 2008/2009 and 2010/2011 into the Defendant Local Government Council with 13 others. He was further elected as the Deputy leader of the defendant Local Government Council. That pursuant to Exhibits C2A & C2B, he was entitled to the 200% of his annual salary of N1,260,000 (Two million, two hundred and sixty thousand Naira only) as his severance allowance at the end of the legislative tenure in 2011. This Severance allowance was not paid to him at all after the Defendant had fully paid the Leader of the House who was a relation of the Defendant’s former Chairman, Ejike Ani. The defendant, counsel continued, refused to pay any sum to the Claimant until 17/5/2012 when the Defendant issued a cheque of N300,000.00 (Three hundred thousand Naira Only) to the Claimant after several meetings were held with the defendant. It is this sum that was deducted from the original sum of N2,520,000.00 while the balance sum of N2,220,000.00 form the subject of this litigation.
Furthermore, after the evidence of the Claimant and the documents tendered on the 18/11/2014, the case was adjourned to 10th and 11th of February, 2015 for his cross-examination due to the Defendant counsel’s absence from Court and no letter of absence. The case was further adjourned 10/02/2016 for the cross examination of the CW1 (the Claimant). The Defendant and the counsel were also not seen in the court on the said 10/02/2016 and no letter was written to that effect. The case was further adjourned to 3/3/2016 for the defence but neither the Defendant nor her counsel was in court and no letter was written. In all these their absence, hearing notices were duly issued and served on the Defendant’s counsel, A.C. Mba Esq.
Meanwhile, the evidence of the Claimant’s witnesses remains unchallenged. The Court in Ekakhimion vs Edo Transport Services (2006) All FWLR (Pt. 334) 1882, held that the court has power to act on unchallenged evidence and need not place the proverbial imaginary scale as against the evidence by or on behalf of the Plaintiff as the onus on such proof is discharged on a minimal proof.
Furthermore, none of the exhibits tendered and admitted in this case was challenged by the Defendant. Leaned counsel therefore prays the Honourable Court to act on the said evidence tendered by the Claimant as none was tendered by the Defendant in contrast. He referred to Agienoji vs COP Edo State (2007) All FWLR (Pt. 367), p. 887 at 894 Ratio 81.
That also in Military Governor of Lagos State vs Adeyiga (2001) All FWLR (Pt. 83) p. 2137 at 2142, the court held that Courts are to decide the case of a party present where the other party was duly notified of the date but without reasons, fails to appear on the hearing date. He prays the court to decide the Claimant’s case in this suit and enter judgment in his favour since the Defendant is duly notified but deems it unnecessary to appear before this court for her defence.
He then urged the court to enter judgment for the Claimant having successfully discharged the onus placed on him by law.
I have carefully considered the processes filed, the evidence led as well as the arguments and submissions of counsel in this case. The sole issue for determination is whether or not the Claimant has proved his case to entitle him to his reliefs? Before going into the issue let me state the facts of the case briefly. The Claimant was the Councilor who represented AmechiIdodo/Oruku Ward in the Defendant’s Local Government for the period 2010/2011 following the local government council elections conducted in Enugu State on 5th day of December, 2009. The claimant was subsequently made the Deputy Leader for the period by the elected fellow Councilors of the Defendant. That at the completion of his tenure on 31st December, 2011, his Severance Allowance was not paid at all to the Claimant. That on 17/5/2012 the Defendant issued a cheque of N300,000.00 (Three Hundred Thousand Naira Only) ostensibly being payment upon the Severance Allowance leaving a balance of N2,220,000.00 (Two Million, Two Hundred and Twenty Thousand Naira Only) yet unpaid. That after the payment of the said N300,000.00 the defendant promised to pay the remaining sum on or before 31st of December, 2012 and as earlier directed by the State Government. The entitlement was still not paid. Hence the filing of this suit.
Let me point out that since the Defendant did not defend this suit, the Claimant’s shall discharge the onus of proof based on the principle of minimal proof. See Kosile vs Folarin (1989) 4 SCNJ (Pt. 11) 168 at 169; (1989) 3 NWLR (Pt. 107) 1, and Moral vs Okwuayanga (1990) 1 NWLR (Pt. 125) 225 at 232. Therefore the issue for determination here shall be determined on the basis of the said principle. The Claimant’s case is stated in his Statement of Facts, the Statement on oath and the Reply to the Statement of Defence and the additional statement on oath. The main claim of the Claimant is that he was not paid his Severance Allowance having served out his tenure as a Deputy Leader Councilor on the Local Government Council of the Defendant. The said term expired on the 31st day of December, 2011. This followed his election which was confirmed by the certificate of return dated 9th December, 2009, Exhibit C1. He served for two years from January, 2010 to December, 2011. The Claimant also pleaded and led evidence that he is entitled to a Severance Allowance which is the equivalent of 200% of his Annual Salary. See paragraph 7 of the Statement of Facts and paragraph 9 of the Statement on oath. See also Exhibit C2A which is the salary of the Claimant per month with statement on the Severance Allowance as being 200% of the annual salary. His monthly salary as Deputy Leader on the Council according to Exhibit C2A is N105,000.00. When this figure is multiplied by twelve months it amounts to N1, 260, 000.00 (One million two hundred and sixty thousand naira), which is his annual salary. Therefore 200% of the annual salary of the Claimant will be N2, 520, 000.00 (Two million, five hundred and twenty thousand naira only).
The Claimant has pleaded and led evidence that he was paid the sum of Three Hundred Thousand Naira (N300,000.00) only by the Defendant on 17/5/2012 being part payment of the said Severance Allowance of N2,520,000.00. This leaves the balance of the sum of N2,320,000.00 only, being the amount he claims in this suit. See paragraph 11 of the Statement of Facts and paragraph 12 of the Statement on oath. See also Exhibit C3, the photocopy of the Cheque issued to him in respect of the said payment.
Having considered all the above, it is my humble view that the Claimant has discharged the onus on him, going by the minimal proof principle, that he was entitled to the balance of his Severance allowance, having served as Deputy Leader in the Local Government Council of the Defendant from January, 2010 to
