IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/578/2017
DATE: OCT. 15, 2018
BETWEEN:
- ABDUL FATAI YUSSUFF AGBOIKHENA – CLAIMANT
AND
DUNN LOREN MERRIFIELD ASSET MANAGEMENT
& RESEARCH COMPANY LIMITED – DEFENDANT
REPRESENTATION:
Tunde Awongbade, Esq- for the Claimant;
Femi Adeluola,Esq. – for the Defendant
JUDGMENT
This Suit was instituted by the Claimant vide a General Form of Complaint with accompanied frontloaded processes dated and issued on 23rd November 2017, against his ex-employer for recovery of arrears of salaries and entitlements and unremitted deducted pensions .
The Claimant’s reliefs are for:
“(a). The sum of N9, 631,125.52(nine million six hundred and thirty one thousand one hundred and twenty five naira fifty two kobo) against the Defendant being arrears of salaries, allowances, unremitted deducted pension fund from the Claimant’s salaries and cost of litigation paid by my solicitor(sic) for prosecution of this action.
(b). Interest at the rate of twenty one percent per annum from date of filing this action until judgment and thereafter at the same rate until the whole amount is finally liquidated”.
Gleaning from his pleadings and evidence at the trial, the case of the Claimant is that he was employed by the Defendant as Head Retail Sales Relationship Manager on 29th January 2014, at an initial annual salary of N8,250,000.00 (eight million two hundred and fifty thousand naira), and annual cash benefit of N1,250,000 ( one million two hundred and fifty thousand naira). That sometime in January 2017, he resigned his employment vide his letter of Resignation dated 6th January 2017. That prior to his resignation, he was owed five months arrears of salaries, from January 2016 to May 2016, in the sum of N2,550,000.00 (two million five hundred and fifty thousand naira), and the sum of N4,331,250.00 (four million three hundred and thirty one thousand two hundred and fifty naira) unpaid passages allowances for two years, and unremitted pension to the tune of N1,249,875.00; making the total outstanding indebtedness to the tune of N8,131,125.52. That despites his demand letter the Defendant still failed, neglected and refused to pay him, hence this suit.
At the proceedings of 8th February 2018, learned Claimant’s counsel expressed surprise at the continued absence of the Defendant and counsel, despite due service of the processes and Hearing Notice, and urged the court to set down the matter for Hearing under Or.38 R.2 (1) NICN (Civil Procedure) Rules 2017, which enjoins the court, in absence of Defendant’s processes and presence at a date fixed for hearing, to enter judgment for the Claimant as far as the Claimant can prove his case. Despite such rule, the matter was adjourned to another date for Hearing with directive to serve the Defendant with a Hearing Notice. At the resumed proceedings on 19th March 2018, again, neither Defendant nor any counsel were in court and no defence processes filed for the Defendant in defence of the suit. The matter was accordingly set down for hearing and the Claimant called upon to prove his case, pursuant to the Or.38 R.2 (1) NICN (Civil Procedure) Rules 2017.
At the trial, the Claimant, who testified for himself as the sole Claimant’s Witness (CW) adopted his Witness Statement on Oath of 23rd November 2017, and tendered 5 sets of documents, admitted in evidence and marked as Exhibits ‘CY1-CY5’, as described in the Claimant’s List of Documents dated 1st November 2017 and filed on 23rd November 2017 (Nos.1-4), and Employment Amendment letter dated Feb. 05 2016, marked as Exh. CY5.
At the proceedings of 23rd May 2018, a counsel who announced appearance for the Defendant, Valentine Okonji Esq., cross-examined the CW, and the matter was adjourned for defence. At the resumed proceedings of 9th July 2018, the Defendant opened its defence and called one Ibironke Jegede (Compliant Officer of the Defendant) as its sole Defendant’s Witness (DW). DW testified that parties have resolved their dispute as expressed in terms of settlement dated 7th July 2018, which was tendered in evidence and marked ‘Exhibit DY1’. Also tendered is a copy of Diamond Bank Cheque No.81233967 dated 03-7/18 issued to Adetola Odukoya, admitted and marked ‘Exhibit DY2’. On cross-examination, DW confirmed that Exhs. DY1 and DY2 represent the true state of events in the resolution of the dispute.
Both counsel thereafter filed and exchanged their respective Final Written Addresses.
COUNSEL’S SUBMISSIONS
Learned Defendant’s counsel, Femi Adeluola Esq., in his Final Written Address dated and filed on 17th July 2018, raised a sole issue for determination- whether or not this Honourable Court ought not to grant judgment in accordance with the agreement of parties as contained in the Terms of Settlement? Counsel submitted that parities to civil actions can settle their matters even without consent of court and court would enter the terms of their settlement as Consent Judgment. Counsel urged the court to adopt exhibit DA1 as Consent Judgment. He cited and relied on Akio Abbey &ors v. Chief Alhaji Ibrahim Fubara Alex & ors ( no citation); Federick S. Alasia v. Professor J.D Okoh & 6 ors (no citation); Maryam v. Idris (no citation) ITTA v. Amarani; Sammain Fathiu Galadanchi v. Abdulmalik Faruku Kawu (2014) LPELR-23593(CA).
On his part, learned Claimant’s counsel, Tunde Awogbade, Esq., in his Final Written Address dated and filed on 18th July 2018, raised a sole issue for determination- whether the court should give judgment in accordance with exhibit DA1, which is the Terms of Settlement agreed to, executed and filed by the parties in court and tendered in evidence by the Defendant? Arguing the issue, counsel submitted that the parties have exercised their right to compromise their case in court and urged the court to uphold the terms of exhibit DA1, which represents the true wishes of the parties to end their dispute. In support of his submissions, counsel cited and relied on host of cases, such as: Abey v.Alex [1999]14NWLR (Pt.637)148; (1999)12SCNJ234; Cadbury Nig. Plc v. Securities and Exchange Commission (2011) 16 WRN 63; UBN v. Ozigi [1994]3NWLR (Pt.333)385;(1994)2SCNJ 42; Bookshop v. Stanley Consultants [1986]3NWLR(Pt.26)87.
At the proceedings of 18th July 2018, both counsel adopted their respective Final Written Addresses, and urged the court to uphold their submissions.
COURT’S DECISION
I took active part in the proceedings; listened to and observed carefully the events of the proceedings and read relevant processes, and as well, watched the parties’ witnesses testify on the later development as per the testimony of DW who tendered the Terms of Settlement and cheque for payment as per their agreed payment plan in the said Terms of Settlement (Exh.DY 1 and DY2), which were adduced evidence on the particular fact of the settlement by the parties.
From the testimonies and evidence adduced at the trial, in my humble view, the lone issue arising is: whether the court can enter judgment based on the parties’ consensual testimonies about their agreed terms for resolution of their dispute? To resolve this issue, I hold the view that there is no doubt that the agreed terms of settlement testified to by the parties’ Witnesses at the trial amounts to admission on the part of both parties. In Popoola v. Babatunde [2012] 7 NWLR (Pt. 1299) C.A 302 @ P 331, para. B, it was held that what is admitted need no further proof. See also: Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, para. G-H, where the court held that “by virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.
Or.40 R.2 (1) NICN (CP) Rules 2017, is to the effect that: “The court may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction”. In the circumstance of the case, I am satisfied, and I find that sufficient evidence has been laid by the parties’ witnesses (CW and DW), who established the particular fact of the existence and terms of the proposed agreement by both parties (exh.DA1) to resolve their dispute in this matter, and also, the fact that step has been taken by the Defendant towards compliance with the agreed timeline for payment of the agreed outstanding sum. I so hold.
Having gone thus far, I would add that, contrary to the submission of the learned Defendant’s counsel in his Final Written Address, that Consent Judgment should be entered for the parties in the matter, I am of the view that Judgment on Admission is what is obtainable as against Consent Judgment. Where parties, as in instant case, have gone through trial and their terms of settlement tendered and admitted in evidence (forming part of exhibits tendered in the proceedings), and especially to establish the particular fact of their decision to resolve their dispute, without any further need for a full scale consideration of the entire claims and pleadings before the court, the Judgment to be obtained is no longer mere Consent Judgment, but normal Judgment of the court upon admission of certain facts by both parties. See: Or.34 R.4 NICN (CP) Rules 2017. I so hold.
From the said Terms of Settlement (exh.DY1)dated and filed on 6th July 2018, the clear intention of the parties to resolve their dispute are manifest, as it was stated that the Claimant has agreed to waive 30% of the outstanding indebtedness of N7,485,879.60, making the sum payable to be N5,240,115.72. The sum of N2, 096,046.28 representing 40% of the agreed sum, would be payable within 5 days of execution of the Terms of Settlement (exh.DY1). The compliance was evidenced in exh.DY2. The remaining 60% amounting to N3, 144,069.43 would be payable in equal monthly installment of N262, 005.79, beginning from 1st August 2018 to 31st July 2019. A key condition upon which agreed payment timeline was premised on is that: ‘if the Defendant failed, neglected and refused to pay two consecutive installments to the Claimant, then and thereafter the whole outstanding amount shall fall due and recoverable by the Claimant without recourse to the Defendant’.
With the evidence of the admitted facts of the agreed settlement, it is my considered view that all averments in the processes filed and exchanged between the parties which are at variance with this admission, should and are hereby discountenanced. I so hold.
In the circumstance, I hold that the parties’ evidence of their said agreed terms of settlement and compliance condition thereof (exh.DY1) succeeds, and Judgment is entered accordingly. I make no order as to cost.
———————————-
Hon. Justice N.C.S Ogbuanya
JUDGE
15/10/2018.
