IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE
DATE: 5TH DECEMBER, 2019 SUIT NO: NICN/YEN/121/2015
BETWEEN:
MISS MARTINA ADEMU —————————– CLAIMANT
AND
SOUTH ATLANTIC MEDIA LIMITED DEFENDANT
(OPERATORS OF 91.7 RADIO PORT HARCOURT)
JUDGMENT
By a Complaint and Statement of Claim/Facts dated and filed on 28th October, 2015, the Claimant commenced this suit against the Defendant claiming the following reliefs:
- An order compelling the Defendant to pay to the Claimant the sum of Three Hundred Thousand Naira (N300, 000.00k) being unpaid six months’ salary from December 2013 to May 2014 at the rate of Fifty Thousand Naira per month.
- An order compelling the Defendant to pay to the Claimant the sum of One Hundred and Twenty Six Thousand Naira (N126, 000.00k) being unpaid pension allowance from September 2011 to May 2014.
- An order compelling the Defendant to pay to the Claimant the sum of Seventy Five Thousand Naira (N75, 000.00k) being unpaid three years leave bonus from September 2011 to May 2014.
- An Order directing the Defendant to pay to the Claimant the sum of Ten Million Naira (N10,000,000.00) only as compensation for the undue and untold hardship caused by the refusal of the Defendant to pay her outstanding salary and allowances from December 2013 to May 2014.
- Interest on the said sum at the rate of 21% per annum from the date of judgment until full and final payment.
- And for such other order(s) as the Honourable Court may deem fit to make in the circumstances.
Upon service of the Originating Processes on the Defendant, the Defendant through its counsel Emmanuel O. Kalu, Esq of S. R. Dapaa-Addo & Co. Dolphin Chambers filed a Motion on Notice dated 14th December, 2015 but filed on 7th January, 2016, seeking for leave of court to extend time for the Defendant to file and serve its Memorandum of Conditional Appearance, and to deem same as having been properly filed and served. From the records of the court, this application was never moved by the learned Defendant’s counsel; and since it was abandoned, same is hereby struck out.
Aside the application referred to above, the Defendant neither filed any process in defence of this suit nor put up any appearance throughout the proceedings of this suit before me despite the opportunities extended to the Defendant.
When the matter came up for trial on 9th of March, 2018, Monima Karibi-Whyte appeared with I. S. Ilodibia for the Claimant, and there was no representation for the Defendant. The Claimant testified for herself as CW, adopted her witness deposition on oath made on 28th October, 2015, and tendered 3 documents which were admitted and marked as exhibits CW1A-C, CW2 and CW3A-B. The matter was then adjourned to 11th of April, 2018 for cross-examination. The court ordered that the defendant should be put on notice.
When the matter came up on 11th of April, 2018 for cross-examination of CW, Monima Karibi-Whyte appeared with I. S. Ilodibia, N. Amadi-Tagbajumi and Boma Fubara for the Claimant. The defendant was again not in court and was also not represented by counsel despite proof of service of hearing notice on the defendant. The court further adjourned the matter to 7th May, 2018 for cross-examination of CW and again ordered the defendant to be put on notice.
On the 7th of May, 2018, Monima Karibi-Whyte appeared with I. S. Ilodibia and N. Amadi-Tagbajumi for the Claimant. Again, neither the defendant nor the counsel was in court. The matter was again adjourned to 5th June, 2018, and hearing notice was ordered to be issued and served on the Defendant.
On the 5th of June, 2018, Monima Karibi-Whyte appeared with I. S. Ilodibia for the Claimant. There was no representation for the Defendant and no reason was given for their absence. The court again adjourned the matter to 17th July, 2018, and ordered that the defendant be served with Hearing Notice.
On the 17th of July, 2018, Monima Karibi-Whyte appeared with I. S. Ilodibia for the Claimant. Again, neither the Defendant nor the counsel was in court. The court having been satisfied that the defendant was duly put on notice for the day’s proceedings foreclosed the defendant from cross-examining the Claimant, and the witness was then discharged. Thereafter, the Claimant closed her case. The case was then adjourned to 10th October, 2018 for defence. Hearing notice was ordered to be served on the Defendant.
When the matter came up on 10th October, 2018, there was no representation for the parties, and the case was adjourned to 18th October, 2018 for defence. On the 18th of October, 2018, I. S. Ilodibia appeared for the Claimant, and there was no representation for the Defendant. Despite claimant counsel’s application for foreclosure of the defendant from defending the suit, the court in the interest of justice further adjourned the matter to 14th November, 2018. On the 14th of November, 2018, I. S. Ilodibia announced appearance for the Claimant. There was no representation for the defendant. The case was again adjourned to 17th January, 2019 for defence.
When the matter came up on the 17th of January, 2019, Monima Karibi-Whyte appeared with G. O. Josiah and C. I. Chikeka for the Claimant. There was no representation for the Defendant. The court having been satisfied that the defendant was served with hearing notice, foreclosed the defendant from defending the suit, and ordered parties to file their Final Written Addresses beginning with the Claimant. The matter was then adjourned to 11th March, 2019 for adoption of final written addresses.
On the 11th of March, 2019, M. M. Solomon appeared for the Claimant. The Defendant was neither in court nor represented by counsel. Mr. Solomon informed the court that the Claimant’s Final Written Address which was filed on 4th of February, 2019 had not been served on the Defendant. He therefore asked for an adjournment to enable them serve the said process on the Defendant. The matter was then adjourned to 9th April, 2019 for adoption of Final Written Addresses. The court ordered for Hearing Notice on the Defendant.
May I state that from time the court was involved in the 2019 Election Tribunal in Sokoto State, and the matter was only listed after the conclusion of the national assignment.
When the matter came up on 31st October, 2019, both the defendant and the counsel were not in court. Monima Karibi-Whyte announced appearance with P. C. Wireh Esq. and B. N. Orji Esq. for the Claimant. The learned Claimant’s counsel adopted the Claimant’s Final Written Address dated 30th January, 2019 and filed on 4th February, 2019, and urged the court to enter judgment for the Claimant.
The defendant did not file Final Written Address in this suit.
With the adoption of the Claimant’s Final Written Address, the suit was adjourned to 5th December, 2019 for judgment.
THE CASE OF THE CLAIMANT:
The Claimant was employed by Defendant vide letter dated 26th September, 2011 and commenced work in November, 2011 as a reporter. According to the Claimant, she was entitled to remuneration in the form of basic salary, rent allowance, transportation allowance, pension allowance and leave allowance. That the defendant failed to pay her salary and other entitlements as at when due and even made deductions from her salary in respect of leave allowances and pension.
The Claimant further averred that, due to the refusal of the Defendant to pay her entitlements she was forced to resign her employment on 5th June, 2014, and caused her solicitors to write to the defendant letter of demand dated 11th September, 2015.
As stated earlier in this judgment, the Defendant did not file any process in defence of this suit.
CLAIMANT’S SUBMISSIONS:
The Claimant submitted a sole issue for the determination of this court, to wit:
Whether the Claimant has proved her case to warrant judgment in its (sic) favour?
While arguing the sole issue identified for determination, the learned Claimant’s counsel submitted that, a cause of action has been defined as the entire set of circumstances giving rise to an enforceable claim. That it is every fact necessary for the petitioner to prove, if traversed in order to support his right to the judgment of the court. See Nigerian Communications Commission V. M.T.N. (Nig.) Comm. Ltd. (2008) 7 NWLR (Part 1086) 1 at 243, ratio 21, Attorney General of the Federation V. Abubakar (2007) 10 NWLR (Part 1041) 45 ratio 39, and Obigwe V. P.S.P.L.S. Management Consortium Ltd (2009) 3 NWLR (Part 1128) 378 at 384 ratio 5.
It was further submitted that, in civil cases as in the instant suit, the burden/onus of proof is on the party who asserts a fact as he who asserts must prove, and the standard of proof is that of preponderance of evidence and balance of probabilities. Daodu V. Nigerian National Petroleum Corporation (1992) 2 NWLR (Part 538) 355; Braimoh V. Abasi (1998) 13 NWLR (Part 581) 167; Audu V. Guta (2004) 3 NWLR (Part 864) 463 and Mani V. Shanono (2006) 4 NWLR (Part 969) 132.
That by the pleadings filed in this suit, and the evidence led by the Claimant, she has discharged the onus of proof placed on her by law. That exhibit CW2 which has not been contested indicates when the Claimant’s employment with the defendant ended and the claimant is not claiming any sum beyond that period.
According to learned counsel, while exhibit CW1A-C establishes that the Claimant was employed by the defendant and worked for the defendant until her resignation, exhibit CW2 showed that the claimant was being owed by the defendant and that she resigned her appointment as a result of the defendant’s indebtedness to her. That the demand for the payment of the claimant’s outstanding salary and allowances was made vide exhibit CW3A-B.
It was further argued that since the defendant did not defend this suit, it is deemed to have admitted the claimant’s case as any fact which has not been categorically denied or challenged by a party is deemed to have been admitted by that party. That the facts pleaded and presented by the Claimant remain unchallenged. See Ifeanyichukwu Okonkwo V. Federal Republic of Nigeria & Anor. (2011) 11 NWLR (Part 1258) 215 ratio 23.
It is observed that the Claimant’s counsel made submissions with respect to the admissibility of exhibit CW2; that same was admitted under protest on the ground that there was no endorsement by the receiving party. I have however looked at the records of this court and I cannot see where the said exhibit CW2 was admitted under protest. In any case, there is an endorsement on exhibit CW2 indicating that same was received by the Defendant on 5th June, 2014. The submission of learned counsel is therefore of no moment and is hereby discountenanced.
The Claimant’s counsel finally urged the court to grant all the prayers as contained in the Complaint with substantial cost against the defendant.
COURT’S DECISION
Having carefully considered the pleadings, evidence and submissions of counsel for the Claimant, I am of the humble opinion that the lone Issue formulated by the Claimant is comprehensive enough to determine the issues in controversy in this suit. I shall therefore adopt the said Issue crafted by the Claimant.
May I state from the beginning that the Claimant’s employment with the Defendant is clearly not in doubt as Exhibit CW1A-C indicates that the Claimant was employed by the Defendant on 26th September, 2011 as REPORTER with effect from 1st November, 2011.
The Claimant’s case before the court has nothing to do with termination of appointment but rather the Claimant is claiming the payment of unpaid earned wages for some of the period she worked for the Defendant until her resignation from the employment of the Defendant on 5th June, 2014 vide exhibit CW2.
The Claimant gave evidence to the effect that she worked for the Defendant until she resigned her appointment vide exhibit CW2 on 5th June, 2014 due to the failure of the Defendant to pay her salary and arrears for six (6) months from December 2013 to May 2014. She thereafter instructed her Solicitors who wrote exhibit CW3A-B addressed to the Defendant demanding for the payment of the Claimant’s entitlements to no avail.
Exhibit CW1A-C which provides for the Claimant’s terms of employment is hereby reproduced for the purpose of lucidity:
SOUTH ATLANTIC MEDIA LIMITED
(OPERATORS OF 91.7 RADIO PORT HARCOURT)
26th September, 2011
Martina Ademu
1 Wonwa Street Off Ada George Road
Rumueme, Port Harcourt.
Dear Miss Ademu,
OFFER OF APPOINTMENT
We are pleased to inform you that your appointment as REPORTER has been approved with effect from 1st November, 2011.
This appointment requires your utmost diligence and passion for excellence in order to ensure organizational success as a team player.
DUTIES
Your duties include.
- To work under the supervision of the News Head
- Covering of news beats
- Producing daily news for radio newscasts
- Producing in-depth radio features and special reports as assigned
- Selection of research topics, contacts and interview sources, editing and production of reports and news as assigned by News Head, record-keeping
- To be engaged in field reporting and outdoor broadcasting
- To be involved in marketing customer relation functions
- To be available for other related assignments
REMUNERATION
Your remuneration is as illustrated below:
Annual
Basic Salary: N300, 000.00
Rent allowance N150, 000.000
Transportation Allowance N37, 500.00
Others N112, 500.00
TOTAL N600, 000.00
*Statutory contribution to selected Pension Fund Manager
**Leave allowance is payable in whole once yearly. See staff handbook.
NOTICE PERIOD
In event of leaving the organization, you are required to give a minimum of two weeks’ notice in writing or salary in lieu.
WORK HOURS
Official work period starts 8am to 5pm Monday to Friday including public holidays. However, due to the peculiarity of our industry your time of duty remains flexible and subject to shifts as may be determined by the company.
DRESS CODE
The company’s dress code is formal on official hours.
I hereby on behalf of the company congratulate you on this appointment and request the following:
- Sign and return the attached copy of this letter to confirm your acceptance
- Ensure submission (if pending) of the following details within two weeks:
- Curriculum Vitae
- Credentials
- Two completed guarantors’ forms
- Letter of recommendation from your immediate former employer (or school in case of first employment)
Employees’ terms of reference are contained in the staff handbook and we encourage you to obtain a copy from the Head of Admin.
On behalf of the board and management, congratulations!
For: South Atlantic Media Ltd.
Kester Buzugbe,
Chief Operating Officer
The remuneration/entitlements of the Claimant are clearly spelt out in exhibit CW1A-C reproduced above. It is therefore instructive to state that, in labour law every worker is entitled to his earned wages, and there is an obligation on every employer to ensure that employees are paid wages for services rendered.
See Ogiamien V. Gulf Manning Services Nig. Ltd (2016) 66 N.L.L.R. (Part 235) 210.
The evidence adduced by the Claimant in this suit have not been challenged by the Defendant. It is the law that, where evidence remains unchallenged or uncontroverted by the opposing party who has the opportunity to do so, the trial court can believe such evidence and act on same. See the case of Military Governor of Lagos State & Ors. V. Adebayo Adeyiga & Ors. (2012) LPELR-7836(SC), where the apex court held thus on the effect of an unchallenged evidence: “The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance, the onus of proof is naturally discharged on a minimum proof.” See also A. I. Egbunike & Anor. V. African Continental Bank Ltd. (1995) LPELR-1039(SC), and Adepeju Odunsi V. Azeez Bamgbala & Ors. (1995) LPELR-2248(SC).
The defendant in this case neither filed any process in defence of this suit nor gave evidence to contradict what the Claimant told the court. In the absence of any evidence adduced by the Defendant, I hereby accept and believe the evidence of the Claimant which was buttressed by exhibits CW1A-C, CW2 and CW3A-B, that the Defendant owes the Claimant salaries for services rendered to the Defendant. The Claimant is therefore entitled to her earned wages. I so find and hold.
In the circumstance, reliefs 1, and 3 succeed. Reliefs 2 and 4 for unpaid pension allowance and Ten Million Naira compensation for undue and untold hardship are refused for lack of proof.
In all, the Claimant’s case succeeds in part, and for the avoidance of doubt, the court hereby orders as follows:
- The Defendant shall pay to the Claimant the sum of Three Hundred Thousand Naira Only (N300, 000.00) being unpaid six months’ salary from December, 2013 to May 2014.
- The Defendant shall pay to the Claimant the sum of Seventy Five Thousand Naira (N75, 000.00) being unpaid three years leave bonus from September 2011 to May 2014.
- Cost of Four Hundred and Fifty Thousand Naira Only (N450, 000.00) is awarded against the Defendant.
- The terms of this judgment shall be complied with not later than 30 days from the date of delivery failing which they shall attract interest at 10% per annum.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
APPEARANCES:
No representation for the parties.
