ISMAILA NUR MOHAMMED-VS-DAAR COMMUNICATIONS PLC

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: 16^TH DECEMBER, 2019 – SUIT NO: NICN/KN/21/2018

BETWEEN

ISMAILA NUR MOHAMMED – CLAIMANT

AND

DAAR COMMUNICATIONS PLC – DEFENDANT

REPRESENTATION:

Claimant – Present

APPEARANCE

Jonathan Mshelizah, Esq. for the Claimant

Defendant Absent and unrepresented

JUDGMENT

The Claimant commenced this suit by the writ filed on the 7^th of May 2018 in which he claimed the following:

a)Declaration that the persistent refusal or failure to pay the Claimant his salary in 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 N161,752:00 (one hundred and sixty one thousand seven hundred and fifty two naira only) being salary and arrears which has accrued and remained unpaid as at November, 2016.
c)Special damages in the sum of N133,209:00 (one hundred and thirty three thousand two hundred and nine naira only) being the claimant accrued accumulated unremitted pensions as at November, 2016.
d)Special damage in the sum of N203,514:00 (two hundred three thousand five hundred and fourteen naira only) being the claimant final entitlements.
e)Special damage in the sum of N44,571.42 (forty four thousand five hundred and seventy one naira forty two kobo only) accrued unremitted NHIS.
f)Special damage in the sum of N22,000 (twenty two thousand naira only) being the claimants accrued unremitted NHF.
g)Special damages in the sum of N200,000 (two hundred thousand naira only) being the Claimants severance benefits or ALTERNATIVELY severance benefits based on Quantum Meruit in the same sum.
h)General damages in the sum of N1,500,000 (one million five hundred thousand naira only) due to delay of payment thus denying the claimant’s interest on the unremitted pension and other entitlements, 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.
i)N300,000 (three 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.
j)Cost of initiating and prosecuting this matter. The writ was accompanied with a statements of facts, witness statement on oath list of witnesses to be called and list of documents to be relied on at the trial.

Now, this case first come before this court on the 6^th of June, 2016 on that day it was established that the Defendant was out of time to file it’s memorandum of appearance and its statement of defence and other process in defence of the suit. And it is worth stating further that the defendant did not subsequently enter appearance to defend the suit even though hearing notices for each hearing date was served on it with proof of service.

THE CASE OF THE CLAIMANT

It is the case of the claimant from his adopted witness statement on oath, adopted as his evidence on the 18^th October, 2018. That the defendant by letter of OFFER dated 1^st March 2015, (admitted as exhibit A) employed him as an Engineer on an Annual Salary of N749,048:11 (GL4 step 2) under terms and conditions with effect from 1^st January, 2015. That he was posted to the defendants strategic business unit directorate at AIT, Kano Office. Upon accepting the offer and complying with the condition therein, he promptly reported to work with the dependant with effect from 1^st January, 2015.

It is his case that the term of the offer included basic salary, transport allowances, rent allowances meal subsidy allowances, utility and such other allowances. That the relationship between him and the defendant is regulated by the laws of Nigeria including the labour laws, Pension reform laws and the NSITF. He maintains that as an employee he vigorously pursued the mandate of the defendant but the defendant defaulted on its part and refused and neglected to pay his allowances and other benefits as and when due which caused him immeasurable hardship thereby, prompting him to issue his resignation letter in exhibit A1 dated 21^st September, 2016 which was accepted in exhibit A2 the defendant in the letter headed: Re: Disengagement and payment of terminal benefits dated 22^nd November, 2016. He maintained further that upon acceptance of his resignation he was instructed to go to the Defendant’s directorate of Finance i.e finance department for his entitlement to be processed which he did severally to no avail as defendant refused to pay him and thereby breached the terms and conditions that governed the relationship.

He maintained that as at the time he left the services of the defendant he had not been paid his 3 months salary in arrears to wit: August, September and October, 2016 and other entitlement due to him for almost two years. Consequently he instructed legal practitioners to follow up the matter who issued letters of demand/ultimatum to the Defendant in exhibits B and B1 dated 15^th January, 2018 and 19^th February, 2018 respectively which the Defendant did not respond to and the matter proceeded to court.

Looking at the case file at pages 15 through 32 are a 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 not being cross examined.

THE WRITTEN ADDRESS AND COURT’S DECISION

On the 3^rd 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 this 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 NSCC (pt. 111) at 22 or (1999) 8 NWLR (pt. 113) 24 at 55. And went 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 the Claimants has proved his case substantially the Defendant having not put up appearance or defence. Consequently, I hold that judgment is hereby entered in his favour as per the claims set out in 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 benefits including the claimants accumulated unremitted Pensions since 2016 without any reason at all is unfair, illegal and unlawful.
b)The Defendant is to pay Special damages in the sum of N161,752.00 (one hundred and sixty one thousand seven hundred and fifty two naira only) being salary which has accrued and remains unpaid as at November, 2016.
c)The Defendant is to pay special damages in the sum of N133,209 (one hundred and thirty three thousand two hundred and nine naira) being the claimant accrued accumulated unremitted pensions as at November 2016.
d)The Defendant is to pay special damages in the sum of N203,514 (two hundred and three thousand five hundred and fourteen naira only) being the claimant final entitlement.
e)The Defendant is to pay special damages in the sum of N44,571,42 (four hundred thousand five hundred and seventy one forty two kobo only) being accrued unremitted NHIS.
f)The Defendant is to pay special damages in the sum of N22,000 (twenty two thousand naira only) being the claimant’s severance benefit.
g)The Defendant is to pay General damages to the claimant in the sum of N22,000 (twenty two thousand naira only) being the claimant’s severance benefits.
h)The defendant is to pay general damages to the claimant in the sum of N N400,000 (four hundred thousand naira only) for the stress and hardship occasioned for the many unanswered tips from Kano to Lagos and back etc.
i)The Claim for legal fees is refused having not been proved.
j)The Defendant is to pay cost of N1,000 (one hundred thousand naira only) to the claimants.

All sums awarded against the Defendant are to be paid within 30 days of the delivery of this Judgment to the claimant.

Judgment is entered accordingly.

__________________________

HON. JUSTICE E.D.E ISELE

(JUDGE)