IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
INTHE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 16TH JANUARY, 2020
SUIT NO. NICN/LA/574/2018
BETWEEN:
MISS BUNMI ITOHAN IYOHA —————————————-CLAIMANT
AND
WEALTH ISLAND PROPERTIES LIMITED ———————DEFENDANT
REPRESENTATION:
- Ibe Esq. For the claimant
No representation for the defendant
JUDGMENT
By a complaint dated and filed on the 13/11/2018, the claimant claimed from the defendant as follows;
- Recovery of the sum of N930,000.00 (Nine Hundred and Thirty Thousand Naira only) being the unpaid three months’ salaries from May, 2015 to July, -2015 together with her unpaid leave allowance.
- Interest at the rate of 5% per month on the said sum of N930, 000.00 (Nine Hundred and Thirty Thousand Naira only) from the 1st day Of August, 2015 until the date the total sum of money is fully paid and liquidated.
- The sum of N200, 000.00 (Two Hundred Thousand Naira on) being the legal fees paid by the Claimant to her solicitors for prosecuting this case.
- The sum of N2, 000,000.00 (Two Million Naira only) as general damages for the injury suffered by the claimant due to the defendant’s wilful and persistent refusal to pay her the money despite repeated demand.
- And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The defendant was served with the complaint in this suit on the 16/11/2018 However, the defendant did not enter any defence in this suit. Hearing in this suit commenced on the 1/4/2019. The claimant testified as CW1. The claimant tendered the following documents in evidence in proof of his claims;
1) Letter of offer of appointment admitted and marked as Exhibit C1.
2) Email printout and certificate of compliance with S. 84 of the Evidence Act, marked as Exhibit C 2a and b.
3) Claimant Solicitor’s letter of demand admitted and marked as Exhibit C3
4) Receipt for payment of professional fees, admitted and marked as Exhibit C4.
At the close of the claimant evidence in chief, the matter was adjourned to the 25/6/19 for cross examination and defence. The court also ordered hearing notice to be served on the defendant. The matter was adjourned again to the 15/7/2019 for failure to serve hearing notice. On the 15/7/2019 despite the service of hearing notice on the defendant, the defendant was absent and unrepresented in court to cross examine the claimant witness and to put in their defence. Acting on the oral application of C. Ibe Esq, counsel to the claimant, the defendant was foreclosed pursuant to Order 38 Rule 4 of the rules of this court. The suit was adjourned to the 12/11/2019 for adoption of final written address of the claimant counsel. On the said date the claimant and counsel were absent. The final written address of the claimant counsel filed on the 7/8/2018 was deemed adopted pursuant to Order 45 Rule 7 of the rules of this Court.
BRIEF FACTS OF THE CASE.
The claimant was employed by the defendant as a Human Resources Manager at a salary of N250,000 per month. The claimant was also entitled to annual leave of 28 days, which the claimant alleged was to be taken at a time convenient to both parties. The claimant allege that 13 months into the employment the defendant vide a letter sent to her mail box in July advised her to resign her appointment and do a handing over note before his entitlement would be paid. The claimant resigned his appointment. The claimant allege that her resignation was in breach of the terms of his appointment, which stipulate that ‘either party shall terminate the contract by giving one month notice or pay one month salary in lieu of notice’. The claimant allege that his leave allowance of N180,000 and her salary for the month of May, June and July is still unpaid. That the defendant is indebted to the claimant in the sum of N 930,000. That despite the demand for the payment of this sum by his solicitors, the defendant has still refused to pay the money. This in a nutshell is the facts in contention in this action.
The issue for determination here is whether the claimant has led sufficient evidence to proof his entitlement to the reliefs sought in this action.
ON CLAIM NO 1.
Under this claim the claimant claims against the defendant the sum of N930,000.00 (Nine Hundred and Thirty Thousand Naira only) being the unpaid three months· salaries from May 2015 to July, 2015 together with her unpaid leave allowance.
In proof of this claim, the claimant testified as CW1 and tendered Exhibit 1, the letter of offer of appointment dated 2/6/2014 duly accepted by the claimant. In paragraph 4 of Exhibit C1 the claimant was to receive a monthly salary of N250,000. The claimant testified in paragraph 4 and 11 of his witness deposition that he was employed on a fixed annual salary of N3, 000,000.00 (Three Million Naira only) or a monthly salary of N250, 000.00 (Two Hundred and Fifty Thousand Naira only). He also stated that the defendant is owing him salaries for the month of May, June, and July 2015 together with the leave allowance of N180,000. This makes a total of N930,000.
I have carefully examined Exhibit C1 the letter of offer of appointment, which in paragraph 4 clearly shows that the claimant was entitled to a monthly salary of N250,000. For the three months the claimant is entitled to the sum of NN750,000 as areas of salary. As regards the sum of N180,000 claimed as leave allowance a careful examination of Exhibit C1 shows that there is no provision in the terms of the offer of employment wherein it was agreed that the claimant would be paid the said sum as leave allowance. This makes this claim to be very doubtful. Apart from the testimony of the claimant that he is entitled to same there is no inference that can be drawn from Exhibit C1 to establish the claimant entitlement to this claim. This claim is in the nature of special damages and the law requires strict proof for the claimant to succeed. See the case of Okunzua V. Amosu & Anor [1992] LPELR-2531 (SC). It is also a well settled principle of law that it is for the plaintiff to proof his case and he must succeed on the strength of his case and not on the weakness of the defence except where the defendant’s case supports the case of the plaintiff. See the case of Ihekoronye V. Hart & Anor [2000]LPELR-6032(CA) In the absence of strict proof by the claimant of his entitlement to the said leave allowance of N180,000, the claim must fail and it is accordingly dismissed for lack of proof. Judgement is hereby entered in the sum of N750,000 being three months salary from May to July 2015 in favour of the claimant.
ON CLAIM NO 2.
In this claim, the claimant seeks 5% interest on the sum of N930,000. Apart from the mere claim of this interest in the reliefs of the claimant no evidence was led by the claimant to establish his right to the interest claim. The position of the law is well settled on how a litigant may claim interest in an action. Interest may be claimed as of right where it is contemplated by the agreement between the parties or under a mercantile custom. In the case of Daniel Holdings Ltd. V. United Bank for Africa [2005]LPELR-922(SC) the Supreme court reiterated this position when it held ‘interest may be claimed as a right where it is contemplated by agreement between the parties, or under a mercantile custom or under a principle of equity such as a breach of a fiduciary relationship’. In the case of London Chatham & Dover Railway V. S.E. Railway [1893] AC 429 at p. 434. The court held that where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such entitlement in the statement of claim.
I have carefully examined the statement of facts in this action there is nowhere the claimant pleaded fact which establish his entitlement to the 5% interest claimed in this action. Furthermore, the nature of the contract of employment as evidenced by Exhibit C1 i.e. the letter of offer of appointment did not for all intent and purpose contemplate that in the event of failure to pay the agreed salary as at when due, the claimant shall be entitled to interest on the unpaid arrears of salary. For this reason the claim of interest must fail and it is hereby refused and the claim is hereby dismissed.
ON CLAIM NO 3.
The claimant in this relief claims the sum of N200,000 being the legal fees paid to his solicitor for prosecuting this action on his behalf. The claimant tendered Exhibit C4 a supposed receipt for the payment of N150,000 with the balance of N50,000 to be paid on or before the 31/12/2018. It is rather unusual that a legal fee for an action can be paid one year and three months (ie on the 11/8/2017) before the action is actually filed on the 13/11/2018. Apart from this there is no evidence before this court showing that the claimant had paid the balance of N50,000 as at 31/12/2018 for which he can claim the sum of N150,000. The claim of solicitor’s fees has never won the favour of the court in this country. To say that a litigant who engages a counsel of his own choice and pays the solicitor’s professional fees can claim the fees from the other party to the action in court who has also engaged a counsel and incurred his counsel professional fees, to say the least is a position that this court cannot encourage. It is appropriate that parties are to bear their own professional cost and be satisfied with the cost awarded by the court. In the case of Nwanji V. Coastal Services Nigeria Ltd. [2004]LPELR-2106 (SC) rejected this claim when it stated:
It is an unusual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of cost taxation to get a realistic figure. Cost are awarded arbitrary and certainly usually minimally. I do not see why the appellant will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged him in the present case, on the grounds of solicitor’s cost paid by him. (per Uwaifo JSC. Pg18 paras. B-E)
For the reason stated above and on the strength of the above cited Supreme Court authority the claim of solicitors cost by the claimant in this action must fail and it is hereby refused. This claim is hereby dismissed.
ON CLAIM NO 4
Here the claimant claims the sum of N2, 000,000.00 (Two Million Naira only) as general damages for the injury suffered by the claimant due to the defendant’s wilful and persistent refusal to pay her the money despite repeated demand. In proof of this claim the claimant testified that when she was advised to resign her position in July 2015, the defendant had promised to pay her entitlement. Claimant also tendered Exhibit C2b wherein the defendant promised to pay the claimant all her outstanding entitlements upon the handing over of all the defendant properties in the claimant possession. The claimant testified that despite handing over all the defendant properties to the defendant, the defendant still refused to pay her entitlement. The claimant tendered Exhibits C2a and Exhibit C3 the claimant solicitor letter of demand wherein the claimant arrears of salaries was demanded. These pieces of evidence were never challenged. This court is of the strong view that refusal to pay the claimant her three months salary when she resigned her position as at July 2015 has caused her some inconveniences and denied her the use of her
earned salary. For this reason the defendant is entitled to damages. This court is inclined to award damages against the defendant. The defendant shall pay the sum of N 200,00 as general damages for wrongful withholding of the claimant salary after resignation from the employment of the defendant.
CONCLUSION.
On the whole this action succeeds in part. Judgment is hereby entered in favour of the claimant against the defendant in the following terms:
(1) The defendant shall pay the sum of N750,000 being three months salary from May to July 2015
(2) The defendant shall pay the sum of N 200,00 as general damages for wrongful withholding of the claimant salary after resignation from the employment of the defendant.
(3) Claims No 2 and 3 of the claimant are hereby dismissed.
(4) Cost is assessed at N50,000
The sum ordered to be paid in this judgment must be paid within 14 days from the date of this judgment, failure of which it shall attract interest at the rate of 5% until the liquidation of the judgment debt.
Judgment is entered accordingly
_______________________________
Hon. Justice ( Dr.) I. J. Essien
(Presiding Judge)
