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/577/2017
DATE: OCT. 15, 2018
BETWEEN:
- ADETOLA ODUKOYA – 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 N19, 787,227.00(nineteen million seven hundred and eighty seven thousand two hundred and twenty seven naira) 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 Vice-President 1 (Research) on 26th June 2009, at an initial annual salary of N12,800,000,000 (twelve million eight hundred thousand naira), and upon confirmation vide letter of 14th October 2011, his gross remuneration became N14,800,000.00 (fourteen million eight hundred thousand naira), and that due to his efficiency and faithfulness he was promoted to the post of ‘Joint Managing Director’ by the letter dated 24th December 2013, with other enhanced welfare benefits. That after seven years of meritorious service to the Defendant, he voluntarily resigned by a Resignation letter dated 31st May 2016, effective 30th June 2016. That prior to his resignation, he was owed five months arrears of salaries in the sum of N4, 858,424.00 (four million eight hundred and fifty eight thousand four hundred and twenty four naira), and the sum of N10, 560,000.00 (ten million five hundred and sixty thousand naira) unpaid passages allowances for two years, including unremitted pension to the tune of N3, 368,700.00; making the total outstanding indebtedness to the tune of N18, 787,227.00. That the Defendant accepted the indebtedness by a letter dated 12th July 2016, and made payment proposals, of which 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 ‘CA1-CA5’, described in the Claimant’s List of Documents dated 1st November 2017 and filed on 23rd November 2017.
At the proceedings of 23rd May 2018, a counsel who announced appearance for the Defendant, Femi Adeluola 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 DA1’. Also tendered is a copy of Diamond Bank Cheque No.81233966 dated 03-7/18 issued to Adetola Odukoya, admitted and marked ‘Exhibit DA2’. On cross-examination, DW confirmed that Exhs. DA1 and DA2 represent the true state of events in the resolution of the dispute.
Counsel later filed and exchanged Final Written Address.
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 pay the agreed payment plan in the said Terms of Settlement (Exh.DA 1 and DA2), which were adduced evidence on the particular fact of the settlement by the parties.
From the testimonies 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, by directing the narrowing of the trial towards establishing the particular fact of existence and terms of the parties’ proposed agreed terms to resolve their dispute and the witnesses for both parties having given evidence in admission of the agreed terms, I am satisfied that sufficient evidence has been laid by the parties’ witnesses (CW and DW) towards establishing the particular fact of the existence and terms of the proposed agreement by both parties to resolve their dispute in this matter, and the fact that step has been taken by the Defendant on the said key term on payment schedule agreed by the parties.
From said Terms of Settlement (exh.DA1)dated 20th April 2018 and filed on 13th June 2018, it was stated that the Defendant shall pay the sum of N477, 000.00 (four hundred and seventy five thousand naira) as full and final settlement of his claim of N840, 000.00 in the suit; that the sum of N320,000.00 (three hundred and twenty naira) only has been paid by the Defendant to the Claimant as at 16th February 2018, leaving a balance of N157,000.00 (one hundred and fifty seven thousand naira). And that the said balance of N157, 000 shall be paid in two installments as follows: N100, 000 -on or before 31st March 2018, N57, 000- on or before 30th April 2018. It is the payment of this balance that was subject of the trial for eliciting the evidence pursuant to Or.4 R.2 (1) NICN (Civil Procedure) Rules 2017. From the evidence adduced by the CW and DW, it is no longer in doubt that the full payment of the agreed amount has been made by the Defendant to the Claimant, thereby bringing to an end the obligation thereof.
In the circumstance, I hold that the parties’ evidence of their said agreed terms of settlement and compliance thereof succeeds, and Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice N.C.S Ogbuanya
JUDGE
20/7/2018.
