MR ANDONG OTU EFFIOM & 4 Ors -VS-ODUKPANI LOCAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE

DATE: 6^TH NOVEMBER, 2019 SUIT NO: NICN/CA/25/2017

BETWEEN

MR ANDONG OTU EFFIOM
HON. ESSIEN ITAM
CHIEF ROLAND NYONG CLAIMANTS
MR ALOYSIOUS UTO
PRINCE GEORGE ITA

AND

ODUKPANI LOCAL GOVERNMENT COUNCIL ……….. DEFENDANT

REPRESENTATION

UDOGADI UWUMAZHINIYE Esq. for the Claimant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimants vide a Complaint filed 21^st April, 2017 asking for the following reliefs:

A DECLARATION that the continuous refusal of the Defendant to pay the Claimants’ monthly and terminal benefits since their employment came to an end by lapse of tenure is wrongful, malicious and loaded with malice

AN ORDER directing the Defendant to release and pay forthwith the sum of N12,728,198.94 (Twelve Million Seven Hundred and Twenty Eight Thousand One Hundred and Ninety Eight Thousand Ninety Four Kobo) to the Claimants being the monthly, severance and furniture allowance and other fringe benefits due to them collectively as appointees of the Odukpani Local Government Skill Acquisition and Empowerment Agency during the currency of their tenure

GENERAL DAMAGES of N5,000,000 (Five Million Naira)

THE SUM of N100,000 (One Hundred Thousand Naira) only as cost of this suit

INTEREST on the judgment sum at the rate of 10% per annum with effect from the date of judgment until judgment debt is fully liquidated

SUMMARY OF FACTS

According to the Claimants’ Statement of Facts, all the Claimants were employed variously as follows:

The 1^st Claimant served as Director General of the Defendant’s Skill and Acquisition and Empowerment Agency via the appointment letter given to him in 2008. Having served meritoriously in that capacity, the payment now due to him is N3,067,572.84 (Three Million Sixty Seven Thousand Five Hundred and Seventy Two Naira Eighty Four Kobo)

The 2^nd Claimant served as a member of Defendant’s Skill and Acquisition and Empowerment from 2008. Having served meritoriously in that capacity, the payment now due to him is N2,620,208.34 (Two Million Six Hundred and Twenty Thousand Two Hundred and Eight Naira Thirty Four Kobo)

The 3^rd Claimant served as a Director of Defendant’s Skill and Acquisition and Empowerment Agency from 2008. Having served meritoriously in that capacity, the payment now due to him is N2,620,208.34 (Two Million Six Hundred and Twenty Thousand Two Hundred and Eight Naira Thirty Four Kobo)

The 4^th Claimant served as appointee in the capacity of a member of Defendant’s Skill and Acquisition and Empowerment Agency from 2008. Having served meritoriously in that capacity, the payment now due to him is N2,620,208.34 (Two Million Six Hundred and Twenty Thousand Two Hundred and Eight Naira Thirty Four Kobo)

The 5^th Claimant served as a member of Defendant’s Skill and Acquisition and Empowerment Agency from 2008. Having served meritoriously in that capacity, the payment now due to him is N1,800,000.00 (One Million Eight Hundred Thousand Naira)

The case of the Claimants is that all of the above money totaling N12,728,198.94 (Twelve Million Seven Hundred and Twenty Eight Thousand One Hundred and Ninety Eight Naira Ninety Four Kobo) remains unpaid by the Defendant despite repeated plea and demand on them to so pay.

On the part of the Defendant, they did not file any Statement of Defence in response to the case of the Claimant.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 3^rd of July, 2017 to which all the Claimants adopted their witnesses Statement on Oath and tendered Exhibits in support of their case. Thereafter, the case was adjourned severally to enable Defendant cross examine the Claimants to no avail. Several adjournments followed to give Defendant the opportunity to enter their defence to no avail.

Thereafter, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

It must be noted that just as Defendant did not file any process to defend this case (apart from their Notice of Preliminary Objection which was dismissed), Defendant did not file a final written address.

CLAIMANTS’ FINAL WRITTEN ADDRESS

In Claimants’ final written address filed 10^th June, 2019 Learned Counsel to Claimants formulated a sole issue for determination, that is:

Whether the Claimants by facts have proved their case

Learned Counsel submitted that the law is that he who alleges must prove the existence of such facts alleged. He relied on Section 131 of the evidence Act, 2011. While referring Court further to Sections 133 & 167 of the Evidence Act, 2011, Learned Counsel submitted from the testimonies of CW1 to CW5 and documents tendered as Exhibits by them, the Claimants have led credible evidence in support of their case.

He therefore urged the Court to grant the claims of the Claimants.

COURT

Having gone through the case of the Claimant, evidence adduced and submissions of Learned Counsel to the Claimant, this Court has distilled a sole issue for determination, to wit:

Whether given the circumstances, the Claimants have proved their case to be entitled to the reliefs sought.

For starters, this Court wishes to state that the Defendant in this case never filed any defence to the case of the Claimants despite the fact that their Counsel entered appearance in this case for them and filed a notice of preliminary objection on behalf of the Defendant. After the notice of preliminary objection was dismissed by this Court, there were several adjournments to enable the Defendant file their Statement of defence, cross examine Claimants’ witnesses etc. All of these yielded no fruit despite hearing notice repeatedly ordered to be served on them. Be that as it may, the trite law is that a person who has been given all the opportunity in the world to respond to the allegations against him yet chose not to cannot turn around later on to say he was denied fair hearing. See MFA V. Inongha (2014) 4NWLR (Pt.1397) 343 at 376 where the Supreme Court held thus:

It is trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. This was made very clear in the case of Pam & Anor V. Nasiru Mohammed & Anor (2008) 16NWLR (Pt.1112) 1 at 48 E – G where the concept of fair hearing was explained by Oguntade, JSC as follows:

The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every right to put their case to the Court before the Court gives its judgment….. A complaint founded on denial of fair hearing is an invitation to the Court hearing the appeal to consider whether or not the Court against which a complaint is made has been generally fair on the basis of equality to all parties before it.

In the case herein, this Court is satisfied from its record that opportunity was given the Defendant to present their defence against the case of the Claimants. That they chose to do otherwise is their concern and not that of the Court.

That said, the Court shall proceed to determine the case of the Claimants on the merit.

In the case herein, the case of the Claimants is that they were appointed into various capacity to serve the Defendant through the agency known as Boundary and Conflict Resolution Agency. In proof of this, they all tendered their appointment letters. They also averred that demand letters stating the amount owed them were served on the Defendant yet Defendant failed/neglected to pay them what is owed them. They also tendered the demand letters in evidence. In the face of all of this, Defendant did not file any process in defence thereby leaving the Court with the conclusion that they have no defence to the case of the Claimant. In circumstances like this, the decision of the Court in M/V Gongola Hope V. Smurfit Cases Ltd (2007) All FWLR (388) 1005 1026, Para. D, Per Ogbuagu JSC is apt. In the said case, the Supreme Court held:

…….Where the evidence of a Plaintiff is unchallenged and uncontroverted and particularly where the opposite party on the other side had the opportunity to do so, it is always open to the trial Court seised of the matter to accept the act on such unchallenged and or uncontroverted evidence before it.

In the case herein, the Court cannot help but draw the conclusion that Defendant owes the Claimants the amount claimed as monthly, severance and furniture allowance and other fringe benefits due to them collectively.

In this regard, the case of the Claimants succeeds as follows:

RELIEF 1 Succeeds

RELIEF 2 Succeeds

RELIEF 3 Failson the ground that Relief 1 having succeeded, it will amount to double compensation to grant Relief 3

RELIEF 4 Succeeds

RELIEF 5 Fails: Given the circumstances, this Court is not minded to grant same. The Court will rather give a timeline for the judgment sum to be paid

For the avoidance of doubt, the order/declaration(s) of the Court are as follows:

THE COURT HEREBY DECLARES that the continuous refusal of the Defendant to pay the Claimants’ monthly and terminal benefits since their employment came to an end by lapse of tenure is wrongful, malicious and loaded with malice

THE COURT HEREBY ORDERS the Defendant to release and pay forthwith the sum of N12,728,198.94 (Twelve Million Seven Hundred and Twenty Eight Naira Thousand One Hundred and Ninety Eight Naira Ninety Four Kobo) to the Claimants being the monthly, severance and furniture allowance and other fringe benefits due to them collectively as appointees of the Odukpani Local Government Skill Acquisition and Empowerment Agency during the currency of their tenure