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/592/2017
DATE: OCT. 15, 2018
BETWEEN:
MR. ADEBIYI OLUTAYO LANRE – CLAIMANT
AND
DAAR COMMUNICATIONS PLC. – DEFENDANT
REPRESENTATION:
O. Aunuodo, Esq., – for the Claimant;
No Appearance – for the Defendant despite several Hearing Notices served.
JUDGMENT
By a General Form of Complaint with the accompanied frontloaded processes dated and issued on 4th December 2017, the Claimant who worked as a technical staff/engineer with the Defendant broadcasting company, commenced this suit against his former employer, basically for recovery of his outstanding salaries and leave allowances which remained unpaid even after his resignation from the Defendant company, and also, for non-remittance of his pension contributions to his Pension Fund Administrator (PFA).
The Claimant seeks for the following Reliefs:
“
a). A Declaration that the Defendant’s failure or refusal to pay the Claimant’s salaries for the months of December, 2016-September, 2017 in the sum of N455, 404 and the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016 is unjust, illegal and amounts to flagrant breach of the provision Section 15 of the Labour Act CAP.L1 Law of the Federation of Nigeria, Vol. 7, 2010.
b). A Declaration that the Claimant is entitled to the sum of N555,404 only being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 and the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016.
c). An Order compelling the Defendant to pay the Claimant said sum of N555,404 (Five Hundred and Fifty Five Thousand, Four Hundred and Four Naira). Only being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 and the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016.
d). Interest on the said of N555,404 (Five Hundred and Fifty Five Thousand, Four Hundred and Four Naira) only at the rate of 11% per annum until judgment and thereafter at the rate of 10% until final liquidation.
e). A Declaration that the Claimant having worked for the whole year 2016 in the Defendant’s employment without annual leave and leave bonus is unjust and unlawful.
f). An Order compelling the Defendant to pay the Claimant his leave allowance for the year 2016.
g). A Declaration that the Defendant’s failure to consistently remit the Claimant’s pension contributions up to date is unlawful.
h). An Order compelling the Defendant to remit Claimant’s pension contributions up to date to Claimant’s Pension Administrator.
i). Cost of this action to be assessed by the Court”.
Defendant did not enter Appearance or represented by counsel after issuance of Hearing Notice on it, without any response, resulting in the Claimant opening his case at the proceedings of 29th January 2018. Claimant testified for himself as CW, adopted his Witness Statement on Oath sworn to on 4th December 2017, and tendered 9 documents admitted in evidence, and marked as ‘Exhibits CD1-CD9’. The exhibits were described as follows: Exh. CD1-Claimant’s Offer of Appointment Letter dated 01/03/2014;Exh.CD2-Copy of Claimant’s resignation letter dated 25/09/2017; Exh. CD 3 -Defendant’s internal memo of 26/10/2016; Exh.CD 4-Electronic transaction print out details of Claimant’s October/November 2016 salary arrears paid by the Defendants on 18/10/2017; Exh. CD 5–Email of credit transaction alert print out of July 4, 2016; Exh. CD6-Acknowledge copy of Claimant’s Solicitors’ letters of demand written to the Defendant dated 13/09/2017;Exh. CD7- print out of the Claimant’s Statement of Account, January 1, 2017 through January 31, 2017; Exh. CD8 – Copy of Claimant’s Application for leave form dated 22/4/2016, and Exh.CD9 -Certificate of Authentication.
The trial was concluded under Or.38 R.2(4) NICN (CP) Rules 2017, after the Defendant declined to appear at the trial and the Claimant’s counsel was ordered to file and serve his lone Final Written Address and same was adopted and adumbrated on at the proceedings of 20th July 2018, after service of requisite Hearing Notice on the Defendant through its counsel on record.
COUNSEL’S SUBMISSIONS
Learned Claimant’s counsel, A.Auodo, Esq., filed and served the Claimant’s Final Written Address dated and filed on 2nd July 2018, wherein he raised a sole issue for determination, viz: “Having regard[s] to the facts pleaded in the Claimant’s Statement of Facts dated 04/12/2018 and the evidence before the court, whether the Claimant has proved his case and therefore entitled to the reliefs sought?”
Canvassing argument on the issue raised, counsel submitted that on the face of Exh. CD1, the Defendant employed the Claimant on a stipulated salary of N621, 640.41 (Six Hundred and twenty One Thousand, Six Hundred and Forty naira, Forty Kobo) per annum; that Exhs. CD3 and CD5 show the range of Claimant’s monthly salary, and Exh.CD1 shows that the Claimant’s employment with the Defendant took effect from 1st April 2014 and he remained in the Defendant’s employment until 2017 when he tendered his resignation as seen in Exh.CD2.
Counsel further submitted that on the strength of the principle in Honk Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (pt.238) 679, para.C-D, the Claimant has established through documentary evidence that he was an employee of the Defendant with a stipulated salary, and that he worked with the Defendant for the relevant period and as such, he is entitled to an order for the payment of his unpaid outstanding salary arrears for December 2016 to September 2017 in the sum of N455,404. That the Claimant has also established that his unpaid salaries for the month of January to June, 2016 was N273,242.40 as calculated on the face of Exh.CD3, but only the sum of N173,OOO was paid by the Defendant as seen in Exh. CD7.
On claim for interest, it is counsel’s submission that the Claimant’s unpaid salary arrears by the Defendant is a debt owed, and thus, the position of the law is that monetary judgment attracts appropriate interest even where none is claimed. He cited and relied on Diamond Bank Ltd v. PlC Ltd [2009] 18 NWLR (Pt. 11.72) 67 @ p. 97; Or. 47 R.7 NICN (CP) Rules 2017.
On Pension Contribution claim, counsel submitted that the Claimant had laid sufficient evidence that the Defendant failed or refused to consistently remit his pension contribution to his Pension Administrator-IBTC Pension, and that he received a text message from IBTC Pension on the 29th August, 2017 to the effect that no contributions have been into the Claimant’s Retirement Savings Account in the last four (4) months. Counsel further contended that the Claimant was unduly denied his leave allowance/bonus he was entitled to by virtue of S.18 (1) Labour Act.
It is counsel’s further contention that the Claimant having discharged the burden of proof placed on him (that he is entitled to the payment of outstanding salary arrears) by law, that the burden of proving the contrary has shifted to the Defendant as the Defendant is required to prove not only that it paid the Claimant his salaries for work done in the relevant period but also how much the salary that it paid the Claimant was. A burden, counsel argued, was not discharged by the Defendant even at pleading stage not to talk of the trial it did not participate.
Counsel further argued that the Defendant’s Witness Statement on Oath was not even adopted by the Defendant’s Witness, with the implication that it cannot be used and relied on as evidence in chief for the Defendant, citing and relying on Majekodunmi & Ors v. Ogunseye (2017) LPELR- 42547(CA) and a host of other cases on the status and relevance of Witness Statement on Oath at trial, and effect of failure to adopt Written Statement on Oath filed in court.
Counsel finally submitted that the Defendant’s Statement of Defence filed cannot avail the Defendant, as it is trite that pleadings without evidence go to no issue in law. He contended that pleadings must be supported by evidence and where needed evidence is not provided, any case built on it must collapse, since parties must support their pleadings with evidence in order to succeed. Counsel cited and relied on Banjoko & Ors.v. Ogunlaja & Anor (2013) LPELR-20373 (CA); Regt. Trustees, B.C. & S. v. Edet [2016] 5 NWLR (Pt.1505) 387 at 403, paras.F-G ; Udom v, Umana [2016] 12 NWLR (1526) 179 at 218, paras. D-F.
Counsel urged the court to uphold the case of the Claimant as the Defendant did not controvert it in a cross-examination, which the court afforded the opportunity but it did not do. To counsel, such uncontroverted testimonies of CW are deemed admitted by the Defendant, which makes the case of the Claimant to succeed. Counsel submitted that: “In essence, as the Defendant’s learned counsel on record curiously shied away from attending court’s proceedings despite series of hearing issued and served on it by the fiat of this Court, the implication of this in law is that not only that the statement on oath is abandoned but also that it did not controvert the evidence presented by the Claimant”.
COURT’S DECISION
I have followed the proceedings and listened carefully to the submissions of the learned Claimant’s counsel and had done a detailed review of the processes filed, and noted the evasive attitude of the Defendant and its counsel.
As the Defendant was absent at the trial proceedings, Hearing Notices were ordered and issued on the Defendant to attend court proceedings at various adjourned dates to cross-examine the CW and proceed with hearing of its defence. At the resumed proceedings of 9th March 2018, I did observe that the Defendant entered Appearance through the law firm of M.O Obhahin-Mejele & Associates, and responded to the suit with a Statement of Defence dated and filed on 23rd February 2018, and Witness Statement on Oath by one Bola Omotosho, the Director, Credit Control with the Defendant. Also filed was a Motion on Notice dated and filed on the same 23rd February 2018, seeking for an Order regularizing the defence processes, filed and served out of the prescribed time. With the development, the matter was adjourned for Hearing of the pending Motion on Notice, and Hearing Notice was ordered and served on the Defendant’s counsel. Surprisingly, at the resumed proceedings on 25th April 2018, despite being served with a Hearing Notice, no counsel appeared for the Defendant to move the pending Motion slated for Hearing. Learned Claimant’s counsel, in reaction, urged the court to invoke Or.45 R.7 NICN (CP) Rules 2017 to deem the said pending Motion on Notice as having been moved, since the Motion was not opposed. In a Bench Ruling, I agreed with the submission of the Claimant’s counsel, and held that the said Motion on Notice was deemed heard and granted and the processes filed out of time and sought to be regularized were deemed so regularized. The matter was thereafter set down for continuation of Hearing at the next adjourned date, and another Hearing Notice ordered and served on the Defendant’s counsel.
Again, at the proceedings of 30th May 2018 and 18th June 2018, both the Defendant and its counsel were absent, without excuse, prompting the Claimant’s counsel to apply to allow him proceed with the trial under the default proceedings set out under Or.38 R.2(4) NICN (CP) Rules 2017. In granting the Application, I held that “the provisions of Or.38 R.2(4) NICN (CP)Rules 2017, made ample provision to cover a situation like this one where the Defendant has been given all opportunities to participate in the proceedings , even to present its defence, but it declined to do so. Thus, the key condition for invoking this Rule has been satisfied and all that was required was to put the Defendant on Notice on the date for Adoption of the Final Written Address”. The Claimant’s counsel was thereafter directed to file his Final Written Address, which was filed and adopted and the matter reserved for Judgment at the proceedings of 20th July 2018. Neither the Defendant nor its counsel appeared in court after just throwing in a defence process. They rather prefer to stay aloof and lay judicial ambush, and waiting to afterwards mount rooftop to howl and yowl of lack of fair hearing targeted at upturning an otherwise deserving decision.
I say this, because, the concept of ‘fair hearing’; a mundane but fundamental constitutional pre-requisite to validity of any judicial adjudication, is often overreached and mischievously resorted to as a magical catapult deployed by a disgruntled party to shoot down flying judicial decision, but little did such perpetrator know that the principle of fair hearing in judicial proceedings is easily satisfied by just giving the such party an opportunity to present its case. And once satisfied, the decision of the court is then anchored on solid rock of fairness and remains unshaken by any adverse complaint by the defaulting party thereafter. See: Ukwuyok v. Ogbulu [2010] 5 NWLR (Pt. 1187) CA. 316@ P 334, paras. C-F, wherein the Court held that:
“The rule pertaining to fair hearing simply means that parties must be given the opportunity to present their case, but no more any less. It is not the rule that no matter the circumstance, the court must sit on its hands, wait at all costs and at all times for a party to present his case. If this is the rule, then cases will never be determined. Therefore, at some point, the court must put its foot down”.
On that basis, I now proceed to deal with the issue submitted for determination in the light of the Reliefs sought. The sole issue submitted by the Claimant’s counsel is -“Having regard[s] to the facts pleaded in the Claimant’s Statement of Facts dated 04/12/2018 and the evidence before the court, whether the Claimant has proved his case and therefore entitled to the reliefs sought?” Put differently, the sole issue slated for determination is- Whether the Claimant has proved his claims to be entitled to the Reliefs sought in this matter?
From the pleadings and available evidence at the trial, the case of the Claimant is that he was employed by the Defendant as a Technical Staff/Engineer vide Defendant’s Offer of Appointment Letter dated 01/03/2014 and he was placed on annual salary of N621, 640.41 (Six Hundred and Twenty-One Thousand, Six Hundred and Forty naira, Forty-One Kobo (exh.CD1), being N45, 733.10 monthly salary after necessary deductions (exhs. CD3 and CD5).That initially, the Claimant was under the Defendant’s Ray Power’s Payrolls but when his salaries were not being paid for several months, he requested to be transferred to the Defendant’s AIT payrolls which request was granted by the Defendant’s Internal Memo of 26/10/2016(Exh.CD3 and para.6 of the CW’s Statement on Oath).That despite being transferred to the Defendant’s AIT payrolls, the Claimant’s salaries remained unpaid for several months (para.7 of the CW’s Statement on Oath).
CW further testified that due to the Defendant’s continued indebtedness of the salary to the tune of N555,404, being outstanding salary arrears for months of December 2016 to September 2017 and unpaid N100,000.00 balance of salary arrears for June 2016, the Claimant later resigned after expiration of the 30 days notice required in their contract of employment (exh.CD2); that his Solicitors also wrote a demand letter (exh.CD6). It is the also the case of the Claimant that in 2016, he applied for his annual leave but the Defendant did not pay his leave bonus (exh.CD8, paras.23 and 24 of the CW’s Statement on Oath); Also, that the Defendant failed and or refused to consistently remit his pension contributions to his Pension Administrator- IBTC Pension (paras. 21 and 22 of the CW’s Statement on Oath).
These testimonies and exhibits by CW were not controverted by the Defendant who did not present any Witness at the trial. It is settled principle of adjudication that evidence which is neither challenged through cross-examination nor controverted by other evidence and is not itself incredible or inadmissible qualify to be accepted and acted upon by the trial court. See: Omoregbe v. Lawani (1980)3-4SC 108@117; Egbunike v. ACB Ltd [1995] 2NWLR (Pt.375)34; Dennis Ivienagbor v.Henry Bazuaye [1999]9 NWLR (Pt.620)552@558-559.In Nzeribe v.Dave Eng.Co. Ltd [1994] 8NWLR (Pt.361) 124 @ p.129, the Supreme Court held:
“Where evidence given by a party to any proceedings or his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it. This is so because in such circumstance, the evidence before the trial court obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such situation to put on the other side of the proverbial imaginary scale or balance, as against the evidence given by or on behalf of the Plaintiff. The onus of proof in such a case is, naturally discharged on a minimal proof”.
Even at that, a close review of the pleading of the Defendant in its Statement of Defence dated and filed on 23rd February 2018 reveals a defence replete with general traverse. In paragraph 5 of the said Statement of Defence, the Defendant avers: “5. The Defendant denies owing the Claimant as alleged in paragraphs 5,6,10,13,14, 17,18 and 19 of the Statement of Facts. At the trial, the Defendant shall require the Claimant to provide strict proof of the matters averred in the referenced paragraphs”.
The judicial attitude of a trial court faced with this general traverse posturing, as in the instant case, is that the Defendant would be deemed to have accepted evidence adduced by the Claimant in discharge of his burden of proof to establish his claims, thus, leaving the evidential burden that shifted to the Defendant un-discharged. In Ndulue v.Orjiakor [2013]8NWLR (Pt.1356)SC 311 @ 337-339, Paras. E-B, the apex court held that:
“ Where a defendant makes a general traverse in his pleadings and fails to give evidence on his case as disclosed in his pleadings or fails to challenge the evidence of his adversary or opposing party, he is deemed to have accepted the evidence of the opposing party notwithstanding the general traverse”.
Having gone thus far, it is time to consider the Reliefs sought by the Claimant. Reliefs (a), (b) (e) and (g) are for Declaratory Reliefs. Beyond the deemed admissions of the Defendant as afore-said, I find that the Claimant has laid sufficient evidence to justify the declaratory Reliefs, having discharged requisite burden on him in respect of Declaratory Relief. Accordingly, Reliefs (a) (b) (e) and (g) succeed. It is hereby declared that the Defendant’s failure or refusal to pay the Claimant’s salaries for the months of December, 2016-September, 2017 in the sum of N455, 404 and the unpaid outstanding N100, 000, being balance for the salary arrears for January to June, 2016 is unlawful and unjust. It is hereby further declared that Claimant is entitled to the sum of N555,404 only being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 with the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016. It is also declared that the Claimant having worked for the whole year 2016 in the Defendant’s employment without annual leave and leave bonus is unjust and unlawful. It is further declared that the Defendant’s failure to consistently remit the Claimant’s pension contributions up to date is unlawful.
Reliefs (c) (f) and (h) go together and are substantive reliefs to give effect to the Declaratory Reliefs afore-said. Having succeeded in the relevant declaratory reliefs thereto, the Reliefs (c), (f) and (h) succeed. Accordingly, the Defendant is hereby ordered to pay the Claimant said sum of N555,404 (Five Hundred and Fifty Five Thousand, Four Hundred and Four Naira) being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 and the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016. The Defendant is further ordered to compute and pay to the Claimant his leave allowance for the year 2016. The Defendant is hereby further ordered to remit Claimant’s pension contributions up to date to Claimant’s Pension Fund Administrator.
Relief (d) is for Interest on the said of N555, 404 (Five Hundred and Fifty Five Thousand, Four Hundred and Four Naira) only at the rate of 11% per annum until judgment and thereafter at the rate of 10% until final liquidation. The critical question remains, is the Claimant entitled to award of Pre-Judgment interest in the circumstance of this suit? The Claimant did not make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required to not only be specifically pleaded but also to provide sufficient evidence to ground its award. See: Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, where the apex court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused. The award of Post-Judgment interest is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case. On the whole, I find the Relief (d) which sought for 11% and 10% interest per annum Pre-judgment and post-judgment, respectively, as presumptuous, speculative and role-swapping. Same is accordingly discountenanced and dismissed. I so hold.
Relief (i) is seeking for ‘Cost of this action to be assessed by the Court’. Recovery of cost in litigation is treated as special damages which are assessed using objective criteria not dependent solely on the discretion of the court. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial. The tenor of this relief and argument presented tend to rely on general cost awarded by court in the course of proceedings, governed by Or.55 NICN (CP) Rules. That sort of cost is not required to be pleaded as it is left for the court to assess and award. Where it is presented as a substantive relief as in the instant case, best practice demands that it should be properly pleaded and evidence adduced before it can be awarded. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.
For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:
The Claimant’s Reliefs (a) (b) (e) and (g) succeed. It is hereby declared that the Defendant’s failure or refusal to pay the Claimant’s salaries for the months of December, 2016-September, 2017 in the sum of N455, 404 and the unpaid outstanding N100, 000, being balance for the salary arrears for January to June, 2016 is unlawful and unjust. It is hereby further declared that Claimant is entitled to the sum of N555,404 only being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 with the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016. It is also declared that the Claimant having worked for the whole year 2016 in the Defendant’s employment without annual leave and leave bonus is unjust and unlawful. It is further declared that the Defendant’s failure to consistently remit the Claimant’s pension contributions up to date is unlawful.
The Claimant’s Reliefs (c), (f) and (h) succeed. Accordingly, the Defendant is hereby ordered to pay the Claimant said sum of N555,404 (Five Hundred and Fifty Five Thousand, Four Hundred and Four Naira) being the Claimant’s outstanding salary arrears for the months of December, 2016 to September, 2017 and the unpaid outstanding N100,000 balance for the salary arrears for January to June, 2016.
The Defendant is further ordered to compute and pay to the Claimant his leave allowance for the year 2016.
The Defendant is hereby further ordered to remit Claimant’s pension contributions up to date to Claimant’s Pension Fund Administrator.
The Claimant’s Reliefs (d), (i) fail. Accordingly, same are discountenanced
and dismissed.
Monetary payments in this Judgment shall be paid by the Defendant to the Claimant within two (2) months of receipt of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
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HON. JUSTICE N.C.S OGBUANYA
JUDGE
15/10/18
