LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Isah Ahmed & 2 Ors -VS- Trade Boost Limited

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE: HONURABLE MR. JUSTICE SANUSI KADO

6TH DAY OF MARCH 2020

SUIT NO. NICN/LKJ/22/2018

BETWEEN:

  1. Isa Ahmed
  2. Adamu Safiya                                                                           Claimants
  3. Mohammed Maryam

V

Trade-Boost Limited                                                                       a. Defendant

JUDGMENT

  1. The claimants in this case took out a general form of complaint dated 21/9/2018 and filed on the same day at the Registry of this Court at Lokoja. The claimants are vide paragraph 21 of their statement of facts prays for:-

  1. A DECLARATION that the claimants are entitle to the sum of N400,000.00 (Four Hundred Thousand Naira) being the cumulative amount of the arrears of salaries the defendant is owing the claimants for the period of four months.
  2. A DECLARATION that the claimants are entitle to allowance for the seminar organized by the defendant which they attended at Abaji.
  3. AN ORDER for payment of the sum of N400,000.00 (four Hundred Thousand Naira) being the arrears of salaries the defendant owed to 1st to 3rd claimants for the services rendered to the defendant company from 30th April, 2018 to August 31st, 2018.
  4. AN ORDER for payment of the sum of N1,000,000.00 (One Million Naira) as damages to the claimants for the breach of contract by the Defendant.
  5. The cost of this suit including solicitor’s fee at NS00,000.00 (Five Hundred Thousand Naira) only.
  6. 10% interest on the judgment sum from the day the judgment is delivered until             the final liquidation of the judgment sum.
  7. The complaint was accompanied by statement of facts, witness statement on oaths, list of witnesses, documents to be relied on by the claimants. Each of the claimants testified in proof of his or her case put forward before the court. They tendered five documents in evidence which were admitted and marked as exhibits CW1A1-2, CW1B1-2, CW1C1-2, CW2A1-2 and CW3A1-2.

THE CASE OF THE 1ST CLAIMANT.

  1. The 1st claimant testified as CW1. CW1 testified to the effect that he was appointed on the 27th day of April 2018 to resume work on 3/5/2018, as Manager of the defendant’s branch office at Koton Karfe. CW1 stated that he attended a five days training programme at Abaji from 23rd to 27th April 2018. That at the seminar, he was informed by the Managing Director, Secretary and Auditor of the defendant that he will be paid 5 five days training allowance in due course. CW1 also testified that he took over the office of the defendant at Koton Karfe from one Blessing Azamu after taking him round the town to know some of the defendant’s customers. CW1 further testified that since his appointment he has been going to work and performing his function and obligations diligently to the defendant. However, since his appointment he has not been paid salaries for 4 months May, June, July and August 2018.  Consequently he and the 2nd and 3rd defendant engaged a legal practitioner who wrote letter of demand.  The letter of demand was responded to by the defendant’s solicitor. The letter of demand and the reply were tendered and admitted in evidence as exhibits CW1B1-2 and CW1C1-2, respectively. The defendant has failed and refused to pay outstanding salaries despite the demand for same. CW1 stated that vide exhibit CW1A1-2, he is entitled to the sum of N50,000.00 (Fifty Thousand Naira) as salary per Month. CW1 is claiming payment of arrears of his salaries for four Months in the sum of N200,000.00 (two Hundred Thousand Naira) .

THE CASE OF THE 2ND CLAIMANT.

  1. The 2nd claimant testified as CW2. CW2 stated that sometime in March 2018, one Uncle Husseini of Chairman’s Quarters, Sabongari, Koton Karfe, informed her of existence of job vacancy, in the defendant’s organization, consequent upon which she applied for employment in the defendant’s organization. That upon her application she was invited for a three days training at Abaji from 1st to 3rd April 2018. At the training she was informed that there will be training allowance for the participation. But up till the time of filing this suit she is yet to receive the allowance. At the end of the three days training at Abaji, she was asked to resume as a Relationship officer at Koton Karfe Branch of the defendant with immediate effect. It was on 27th April 2018, that the management of the defendant issued her with a letter of offer of employment. The said letter is exhibit CW2A1-2. CW2 also testified that since her appointment she has been going to work and performing her functions, duties and obligations diligently to the defendant till date.
  2. CW2 continued her evidence that since her appointment she was paid only April salary in two installments. The first installment was N15,000.00 (Fifteen Thousand Naira) and the second N10,000.00 (Ten Thousand Naira). That she is yet to be paid accumulated balance of  her arrears of salaries of May, June, July and August 2018, which is in the sum of N100,000.00 (one Hundred Thousand Naira). That the management of the defendant has been promising to pay but nothing has been paid. Consequently, a legal practitioner was consulted who wrote letter of demand. The letter of demand was replied. The letter of demand and response were admitted in evidence as exhibits CW1B1-2 and CW1C1-2, respectively. The 2nd claimant is claiming from the defendant payment of arrears of salaries in the sum of N100,000.00 (One Hundred Thousand Naira) and 3 days training allowance.

THE CASE FOR THE THIRD CLAIMANT.

  1. The 3rd claimant testified as CW3. CW3 stated that sometime in March 2018, one Uncle Husseini of Chairman’s Quarters, Sabongari, Koton Karfe, informed her of existence of job vacancy, in the defendant’s organization, consequent upon which she applied for employment in the defendant’s organization. That upon her application she was invited for a three days training at Abaji from 1st to 3rd April 2018. At the training she was informed that there will be training allowance for the participation. But up till the time of filing this suit she is yet to receive the allowance. At the end of the three days training at Lokoja she was asked to resume as a Relationship officer at Koton Karfe Branch of the defendant with immediate effect. However, it was on 27th April 2018, that the management of the defendant issued her with a letter of offer of employment. The said letter is exhibit CW3A1-2. CW3 testified that since her appointment she has been going to work and performing her functions, duties and obligations diligently to the defendant till date.
  2. CW3 continued her evidence that since her appointment she was paid only April salary in two installments. The first installment was N15,000.00 (Fifteen Thousand Naira) and the second N10,000.00 (Ten Thousand Naira). That she is yet to be paid accumulated balance of  her arrears of salaries of May, June, July and August 2018, which is in the sum of N100,000.00 (one Hundred Thousand Naira). That the management of the defendant has been promising to pay but nothing has been paid. Consequently a legal practitioner was consulted who wrote letter of demand. The letter of demand was replied. The letter of demand and response to it were admitted in evidence as exhibits CW1B1-2 and CW1C1-2, respectively. The 2nd claimant is claiming from the defendant payment of arrears of salaries in the sum of N100,000.00 (One Hundred Thousand Naira) and 3 days training allowance.

THE CLAIMANTS SUBMISSION.

  1. The counsel for the claimants formulated single issue for determination, to wit: Whether or not the claimants are entitle to judgment in this suit
  2. Counsel begun his argument by referring to order 38 Rule 2(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and submitted that from the evidence adduced by the claimants, there was an employer and employee relationship between the parties. Also the claimants adduced evidence to show that the defendant owes them arrears of salaries of four months. The defendant did not challenge or file any defence to this action.
  3. Counsel contended that it is trite law that unchallenged evidence is deemed admitted in the case of MATANI V DADA (2013) 7 NWLR (Pt.1358) 319, it was held by the Supreme Court that An unchallenged evidence is deemed to be correct and be acted upon by the court. Counsel further relied on the case of Okpoko Community Bank Ltd V DR. P. C. Igwe (2013) 15 NWLR (pt.1376) 167.
  4. It is the submission of counsel that where defendant failed to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the plaintiff will suffice to prove his case. On this contention reliance was placed on the cases of Oguche V BSCSC (2014) 7 NWLR (Pt.1406) 374, CAMRD Joseph Effiong Inua V First Bank of Nigeria Plc (2016) 2 NWLR (Pt.1495) 89.
  5. Counsel also referred to section 136 of the Evidence Act and submitted that burden of proof lies on the party who wishes court to believe its existence and this is done by preponderance of evidence or balance of probabilities.
  6. It is the submission of counsel that the defendant having failed to file or establish his defence, the claimants is entitled to all their claims in this suit. Counsel urged the court to enter judgment in favour of the claimants.

COURT’S DECISION:

  1. I have carefully considered the originating processes filed by the claimants commencing this suit. I have equally perused the written and oral submission of counsel for the claimants, as only the claimants processes were filed in this suit. The defendant despite proof of service of the Originating Process decided not to file any defence or even enter appearance. I adopt the lone issue submitted by the claimants for resolution, to wit:-

‘’Whether or not the claimants are entitle to judgment in this suit

  1. In all civil matters and proceedings, it is always for whoever is seeking judicial reliefs to adduce cogent, credible and admissible evidence in proof of same in order to be entitled to positive judicial disposition. In other words, he who asserts the affirmative must prove the assertion. Subject to scale of evidence preponderating, the burden of proof rest squarely on the party who would fail if no evidence at all or no more evidence, as the case may be, was given on either side. It has long been established principle of law which has been codified in our statute as well as enunciated by a plethora of judicial decisions of courts. See Akande v Adfsa 2012 15 NWLR PT.1324 538, Famuroti v Agbeke (1991) 5 NWLR (PT.189) 1, Amodu v Amode (1990) 5 NWLR (PT.150) 356, Adegoke v Adibi 1992 5 NWLR PT.242 410, Olaiya v Olaiya (2002) 12NWLR (PT.782) 652, Ogbuanyinya v Okudo (No.2) (1990) 4 NWLR (PT.146) 551.
  2. The requisite proof to establish claim before the court may be by oral or documentary evidence or even by both. However, documentary evidence is accorded more weight and acceptance by the Court compared to oral evidence, this is because documentary evidence is more reliable and is not subject being forgotten.
  3. As pointed out earlier this case is fought based on evidence of the claimants alone, as the defendant failed or neglected to file defence. The failure of the defendant to file statement of defence means that issues have not been joined by the parties. See Egestiba V Onuzuruike (2002) 15 NWLR (Pt.791) 466, (2002) LPELR-1043(SC). The basic principle of law is that where a defendant fails to file defence, he will be deemed to have admitted the claim or relief in the statement of claim, unless the statement of claim is notoriously false to the common knowledge of the court. See  Okoebor v Police Council & Ors. (2003) 12 NWLR (Pt.834) 444, (2003) LPELR-2458(SC), (@003) 5 SC 11.
  4. However, the mere fact that the defendant has not filed defence does not in any way means success of the claimants. The law still require the claimants to prove their claim based on principle of minimal proof. It must be borne in mind that absence of defence does not and cannot translate to judgment given in favour of the claimants. The law has always been that a Claimant can and will only succeed on the strength of his case rather than on the weakness of the case of his adversary. See Gonimi v. Buba (2018) LPELR (CA).it is also well settled respecting declaratory reliefs, the fact of an admission will not shield the Claimant from adducing evidence in support of his claims. See the Court of Appeal in Nwekeorie & Anor. v. Anyanwu & Anor. (2017) LPELR (CA) following the decisions in Bello v. Eweka (1981) NSCC Vol. 12 at 48 & Ogolo v. Ogolo (2006)5 NWLR (Pt. 972) 173.This means that the claimants in this suit have a duty, notwithstanding the fact that the Defendant in this case did not file any defence process and did not call any evidence, to adduced sufficient, credible and compelling evidence in proof of their claims. The Claimants must still adduce sufficiently cogent and credible evidence to discharge the onus placed on them.
  5. Now, have the Claimants adduced sufficient evidence in proof of their case to be entitled to the reliefs sought? Claimant sought 6 main reliefs. The first two are for declaratory reliefs. The law is trite as the Supreme Court enunciated in Addah v. Ubandaki (2015)7 NWLR (Pt. 1458) that “…the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence.”
  6. Declaratory reliefs are discretionary remedies which are not granted as a matter of course. They are grantable only on the strength of the case of the applicant who is obliged to adduce cogent and credible evidence in support of same. The Court of Appeal in MTN Nigeria v. Anene (2018) LPELR (CA) following the Judgment of the Supreme Court in CBN v. Amao (2010)16 NWLR (Pt. 1219) 271 at 299-300 stated that the principles governing the grant of declaratory reliefs are as follows –

(a)       a declaration will be granted even when the relief has been rendered unnecessary by lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law;

(b).     the claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to the relief in the fullest sense of the word;

(c).      a declaration will only be granted where there is a breach;

(d).     the plaintiff must establish a right in relation to which the declaration can be made, hence the Court will not generally decide hypothetical questions;

(e)       the relief claimed must be something which it would not be unlawful or             unconstitutional or inequitable for the Court to grant;

(f).      the relief should not be contrary to the acceptable principles upon which the Court exercises jurisdiction.

  1. The claimants in their evidence relied on exhibits CW1A1-2, CW2A1-2 and CW3A1-2, to establish existence of contract of employment between the claimants and the defendant. These exhibits specifically stated the salary the claimants are entitled to. The claimants have also testified that after their engagement they have been going to work to perform their function and obligations. They also testified that they have four Months arrears of salaries from the Month of May, June July and August 2018. The 2ndand 3rd claimants have stated in their evidence that since their engagement they were only paid April Salary 2018 Salary in two instalments. While the 1st Claimant who started his work in May 2018 was never paid his salaries despite going to work and performing his function and obligations to the defendants. The claimants have vide exhibit CW1C1-2 demanded for payment of their outstanding unpaid salaries. The defendant in response to the letter of demand as per exhibit CW1C1-2, has not denied the non-payment of the claimants salaries. The defendant in exhibit CW1C1-2 clearly and unambiguously admitted employment of the claimants. The defendant has also admitted not paying the claimants their salaries as per their letter of demand exhibit CW1 B1-2. The reasons adduced for the non-payment of claimants salaries is the claimants not meeting certain financial customer targets and poor business returns at both Abaji and Koton Karfe where the claimants are serving the defendant.
  2. From the above evidence oral and documentary, there is no doubt that the claimants have established their claim against the defendant. Therefore, the claimants are entitled to declaration that they are entitled to cumulative sum of N400,000.00 (Four Hundred Thousand Naira) arrears of four Months unpaid salaries. In the circumstance I hereby ordered the defendant to pay the claimants their unpaid salaries in the sum of N400,000.00 (Four Hundred Thousand Naira) as per their claim c.
  3. On relief b which is for declaration that the claimants are entitled to payment of training allowance, the claimants are relying on their parole evidence in proof of this claim. However, the claimants have not disclosed to the court how much is the entitlement as training allowance and the court has not been referred to any instrument of agreement or document to show how much the claims for training allowance is. In the absence of proof of monetary entitlement to the training allowance this court cannot speculate to give monetary value for this claim. In the circumstance the claimant have not proved their relief b, same is hereby refused due to lack of evidence.
  4. On relief d the claimants are claiming N1 Million Naira as damages for breach of contract. The evidence before the court clearly established that the defendant is in breach of duty to pay for services rendered to it by the claimants. Therefore, the refusal of the defendant to pay the claimants their salaries has caused the claimant untold hardship. In the circumstance damages is assessed at the sum of N600,000.00 (Six Hundred Thousand Naira) only, each of the claimants to be paid N200,000.00 (Two Hundred Thousand Naira).
  5. On relief ‘e’ the claimants are claiming the sum of N500,000.00 as cost and Solicitors fees. The claimants have not tendered any document in proof of claim for Solicitors fees. I do not know how the court will know the amount for Solicitors fees. Furthermore, it is to be noted that the claim for solicitors fees does not form part of the cause of action that give rise to suit under consideration. In the case at hand the cause of action is on non-payment of arrears of salaries. There are no averments in the pleading and the witness statement on oath establishing the cause of action on non-payment of Solicitors fees.
  6. It is trite law that 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 pleadings, in this case the cause of action is the alleged non-payment of salaries and training allowance and not that of Solicitor’s fees. Therefore, the claim for Solicitors fees to my mind does not form part of the claimants cause of action. In GUINNESS NIGERIA PLC vs. NWOKE (2000) 15 NWLR (pt 689) 135 at 159 the Court of Appeal 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 by the Supreme Court 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 by this Court. See also MICHAEL V. ACCESS BANK (2017) LPELR-, ABURIME V NPA (1978) LPELR-60(SC).
  7. On the whole and for the avoidance of any doubt and for all the reasons as contained in this Judgment. It is hereby ordered as follows:-
  8.             A declaration is hereby granted that the claimants are entitle to the sum of N400,000.00 (Four Hundred Thousand Naira) being the cumulative amount of the arrears of salaries the defendant is owing the claimants for the period of four months.
  9.             The claim for a declaration that the claimants are entitle to allowance for the seminar organized by the defendant which they had attended at Abaji, is hereby refused for lack of proof.

                         III.            An order for payment of the sum of N400,000.00 (four Hundred Thousand Naira) being the arrears of salaries the defendant owed the claimants for the services rendered to the defendantfor May, June, July and August, 2018.

  1.             The defendant is hereby ordered to pay the claimants the sum off N600,000.00 (Six Hundred Thousand Naira) being damages for breach of contract. Each of the Claimants to be paid N200, 000 each.
  2.             Cost of this suit is assessed at N100,00.00 (One Hundred Thousand Naira) only.
  3.             The claim for Solicitor’s fees is hereby refused for being unmeritorious.
  4. All monetary sums in this judgment shall be paid within 30 days from the date of this judgment failing which the judgment sum shall attract 10% interest per anum until the final liquidation of the judgment sum.
  5. Judgment entered accordingly.

Sanusi Kado,

Judge.

REPRESENTATION: B. M. Musa Esq., with Abdulrahman Isa Esq.,

admin

Website:

Related Story