IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 27th day of February, 2020 SUIT NO: NICN/PHC/36/2018
BETWEEN
Mr. ASUQUO EKANEM———————————–CLAIMANT
AND
OIL FIELD SPECIALIST LTD————–—————-DEFENDANT
Representations:
- Obua for the Claimant.
No representation for the Defendants.
Judgment.
This suit was commenced by way of a General form of Complaint filed on the 13th of March, 2018 along with a verifying affidavit, statement of facts, list of witnesses, witness statement on oath, schedule of documents and copies of the listed documents to be used at trial.
Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendants are:
- A Declaration of the Honourable Court that the Claimant is entitled to the sum of N510,000.00 (FIVE HUNDRED AND TEN THOUSAND NAIRA) being terminal pay off.
- An order of the Honourable Court directing the Defendant to pay the claimant forthwith the sum of N510,000.OO (FIVE HUNDRED AND TEN THOUSAND NAIRA) being terminal pay off.
- The sum of N1,000,000.00 (One Million Naira) only against the Defendant being and representing general damages and cost of filling/litigating the suit and solicitors fee for the debt owed.
This matter had a chequered history being one of the earliest suits assigned to this court sometime in October, 2018. The said chequered history is at the instance of the Defendant who upon reacting to the claims, had appearances entered by three different counsel although no formal memorandum of appearance was filed and neither did the Defendant file a statement of defence before this court.
The first counsel to appear for the Defendant was N.I. Obialorwho on the 13th of March, 2019 sought leave to settle the matter out of court. The said settlement failed after counsel to the Claimant informed the court that some parties did not sign the terms of settlement.
N.I. Obialoresq. made subsequent appearance for the Defendant but he informed the court that the Defendant was not ready for hearing. Thereafter, the Defendant changed counsel twice in person of J.J. OkereEsq and P. ChukwundaEsq, yet,they both failed to file any process in defenceof this suit and dropped appearance unofficially afterwards.
It is consequent upon the satisfaction that the Defendant is very much aware of the existence of this suit and the fact that the Defendant was served with hearing notices that trial commenced in this matter on the 5thof February, 2019 when the Claimant opened his case with himself being called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1. Through the said CW1, 5 documents were tendered and admitted in evidence as C2-C6.
Arising from the statement of fact and witness statement on oath, the case for the Claimant is that he was employed by the Defendant on the 11th day of June 2001 as electrician in Rivers State and was duly issued a letter of confirmation of appointment dated 1st day of November, 2001. He added that upon his employment, he was placed on an annual salary of N360,000.00 whereupon the salary was paid monthly through First Bank and sometimes by hand. He also averred that he worked for the defendant for seventeen years before he was issued a letter dated the 4th day of October 2017 to terminate his appointment. Upon the termination of his appointment, he made oral demand for his terminal benefit but same was not paid which led to a demand through his lawyer who gave a 21 days’ demand notice which was not yielded by the Defendant hence this suit.
Matter was adjourned to 19th September, 2019 for cross examination of the said CW1 and on the said date, the new counsel who appeared for the defendant in person of J.J. Okere Esq. informed the Court that he was not prepared for trial and sought for another date which the court granted.
Upon the date for cross examination, i.e. 14th October, 2019, another counsel in person of P. Chukwunda Esq. appeared for the Defendant only to seek adjournment for cross examination yet again. Counsel to the Claimant objected to the application and this court found that the Defendant have done little to earn the benefit of the discretion of this court. This court however considered the need to bring an end to litigation vis-à-vis the right to fair hearing and consequently adjourned the matter to the already fixed date of 18th October, 2019 for cross examination and defence, failure of which the Defendant was to be foreclosed.
On the said 18th of October, 2019, no appearance whatsoever was made for the Defendant so the Defendant was accordingly foreclosed from cross examining CW1 with the matter adjourned for defence.
On the 13th of November, 2019 which was the date fixed for defence, the Defendant was not in court nor represented and upon the satisfaction that hearing notice was served on the Defendant, this Court foreclosed the Defendant from entering defence while the matter was adjourned to 6th of December, 2019 for adoption of final written address.
Similarly, on the 6th day of December, 2019 and upon failure to file proof of service, matter was adjourned to 14th of January, 2020 with Counsel to the Claimant being further directed to personally write the Defendant informing them of the said adjourned date.
Consequent upon this court being satisfied that service of the final address was effected on the Defendant and the hearing notice along with the letter written by counsel to the Claimant was also served on the Defendant, this court permitted the Claimant to proceed with the adoption of the final written address before this suit was adjourned for judgment.
Arising from the final written address of the Claimant which was filed on the 3rd of December, 2019, Counsel to the Claimant F.O. ObuaEsq., formulated a sole issue for determination to wit:
Whether the Claimant has proved his claims before this Honourable Court to warrant the Court granting same.
In arguing the sole issue, counsel contended that the Court has stated with regards to proof in civil cases that it is trite that civil cases are determined on the preponderance of evidence and the balance of probability. He cited the case of EYO VS. ONUOHA (2011) 11 NWLR (PART 1257) PAGE 1, RATIOS 1, 2 AND 4 AT PAGES 26-27,
Counsel added that in the instant case, the Claimant’s appointment was terminated by the Defendant without paying his terminal payoff till date.
Counsel also argued that it is settled law that he who assert must prove and it is also Law that the burden of proof in a suit is on the person who asserts and desires the Court to give judgment as to any legal right. He referred the court to Section 131-133 of the evidence Act 2011.
He then posited that the Claimant while proving his case tendered his termination letter dated 4th day of October, 2017 and added that it is the case of the Claimant that the terminal payoff ought to have been paid to him.
Counsel submitted that the termination of the employment of the Claimant by the Defendant without paying him his terminal payoff is unlawful.
On the issue of the Claimant claiming the sum of One Million Naira (N1,000,000.OO) representing damages and cost of litigation of this suit, Counsel submitted that the Claimant has suffered damages in the course of demanding for his terminal payoff. He cited the case of NUADE VS. SIMON 2014 ALL FWLR (PART 753 PAGE 1878).
In conclusion, counsel submitted that the Claimant has established that his employment was terminated and his terminal payoff was not paid by the Defendant and urged this court to so hold.
In view of the foregoing, I have taken a careful look at the processes filed by the Claimant in the instant suit and the general circumstance of the case including the exhibits tendered by the Claimant. I have also taken into account the submissions of learned Counsel to the Claimant made through the Claimant’s final written address and find that the sole issue for determination is to wit:
Whether or not in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought.
In resolving the sole issue for determination, I must posit that in the circumstance of this case, the judgment that will arise from the determination of the said sole issue is a default judgment in view of the failure of the Defendant to properly enter appearance or file any process in defence of the instant suit. The court in INEC & ANOR v. MADUABUM (2008) LPELR-4316(CA) stated the nature of default judgment when it held that:
“Default Judgment was defined as a Judgment rendered in consequence of the non-appearance of the Defendant. It is one entered upon the failure of a party to appear or plead at the appointed time. Put differently, default judgment means judgment entered under statutes or rules of Court, for want of affidavit or defence, plea, answer and the like, or for failure to take some required step in the cause.Per. BADA, J.C.A (Pp. 15-16, paras. E-A).
In addition to the foregoing, the Rules of this Court empowers this court to enter judgment in default of the appearance of the Defendant or default of filing defence where the claim is for pecuniary damages. See generally Order 35 of the Rules of this Court.
It is consequent upon the foregoing that I shall consider the claims of the Claimant vis-à-vis the evidence before the court.
The Claims of the Claimant as can be gleaned from the statement of fact is for terminal benefits put at the sum of N510,000.00. The facts leading to the said claim is that the Claimant averred that he worked for the defendant for a period of 17 years before the said employment was terminated by the Defendant on the 4th of October 2017 but the Defendant has failed to pay him his terminal benefit which he is entitled to according to his letter of confirmation of employment.
Consequent upon the foregoing facts, Claimant seeks a declaration of this court that he is entitled to terminal benefit in the sum of N510,000.00.
Upon a consideration of the foregoing especially the fact that the Claimant is seeking for a declaration of this court, I must state that the law is trite that he who asserts must prove. In this regard, the court in Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A – B (CA) held that:
“It is trite law that he who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight.” See A.G, Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255. Per Mshelia J.C.A.
In addition and particularly with regards to the declaratory relief sought, the court in DIAMOND BANK PLC. V. YAHAYA & ANOR.(2011) LPELR-4036(CA)held that:
“The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.”Per ONYEMENAM J.C.A. (P. 27, paras. B-D).
In the light of the foregoing authorities and in an attempt to fulfill the requirement of the law in terms of proof that he is entitled to terminal benefit from the Defendant, the Claimant tendered exhibit C2-C6 in support of his assertions and claims. Exhibit C2(a) and (b) comprises of his letters of employment dated the 11th of June, 2001 and letter of confirmation of employment dated 1st November, 2001. In addition, exhibit C3 is a copy of the statement of account of the Claimant with First Bank Plc wherein Claimant alleged that the Defendant pays his salaries into. The said statement of account spans from 1st January, 2017 to 14th December, 2017 while Exhibit C4 is the letter of termination of employment issued by the Defendant to the Claimant on the 4th of October, 2017.
Upon evaluation of the foregoing Exhibits, I find that the Defendant is by the letter of confirmation of employment tendered as Exhibit C2(b), obligated to pay to the Claimant terminal benefit upon the termination of his employment.
The penultimate paragraph of the said letter for the sake of clarity reads thus:
“Terminal pay off: the company shall pay one(1) month basic salary for every year completed”
Bearing that in mind, the annual basic salary as stated in the same letter of confirmation of employment at paragraph 3 is at the sum of N360,000.00 which upon division into 12 will result to the sum of N30,000.00 per month. It is the said N30,000.00 that the Claimant multiplied by 17 years of service to the Defendant to bring about the sum of N510,000.00 as his claim for terminal benefit.
A review of the letter of termination of employment issued to the claimant, dated the 4th of October, 2017 and tendered as exhibit C4 also clearly shows that the Defendant acknowledged that the Claimant is entitled to certain entitlement when the Defendant stated in the third paragraph of the letter of termination of employment that:
“Accordingly, your final entitlements will be paid as soon as possible.”
In addition to the foregoing, I have taken a look at the statement of account of the Claimant tendered as exhibit C3 and find that same reflects the payment of salaries by the Defendant into the said account in the months of January, April and May, 2017 but no other monies paid into the account reflects the terminal benefit paid by the Defendant at the time of termination of the Claimant’s employment in October, 2017.
It is upon the forgoing exhibits that the Claimant predicated his claim and there is no doubt that the standard required for proof in a civil suit such as the instant case is on the preponderance of evidence which the court in OKORIE v. UNAKALAMBA & ANOR(2013) LPELR-22508(CA) made exposition to the effect that:
“Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Per AJI, J.C.A. (Pp. 40-41, paras. G-D).
I must also add that while I reckon that the Defendant failed to enterdefence in the instant case, it is generally settled that where evidence is unchallenged, the standard becomes minimal to warrant judgment. The court in this regard held in the case of OKPOKO COMMUNITY BANK LTD. & ANOR. v. DR. P. C. IGWE (2012) LPELR-19943(CA) that:
“where a plaintiff adduces oral credible evidence which establishes his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence either by challenging same under cross-examination or by controverting same in evidence, the plaintiff is entitled to judgment. The reason for saying so is that such attitude of the defendant is interpreted to mean that he has accepted or deemed to have accepted the pleadings and evidence of or the case of the plaintiff. The standard of proof in such circumstance, as I said earlier, is minimal. See Buraimoh v. Bangbose (1989) 3 NWLR (Pt.109) 352, Tsokwa Oil Marketing Company Nigeria Limited v. Bank of the North Limited (2002) 11 NWLR (Pt. 777) 163, Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444.”Per OKORO J.C.A (Pp. 21-22, paras. B-A).
Having said that, I must also add that the claim made by the Claimant for the sum of N510,000.00as terminal benefit comes within the realm of special damages which must be specifically pleaded and strictly proved. In this wise, the court in Egom v. Eno (2008) 11 NWLR (Pt.1098) held that:
“In AlhajiOtaru& Sons Ltd. v. Idiris&Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.”Per NGWUTA J.C.A. (P. 26-27, paras. E-A).
In the instant case, having established that his basic salary is N30,000.00 as at the time of the confirmation of his employment and that he worked for the Defendant between 2001 to 2017, I find that the Claimant has specifically pleaded and strictly proved that he is entitled to terminal benefits.
That notwithstanding, the claim that he is entitled toterminal benefits for 17 yearsis questionable in view of the fact that the Claimant’s employment letter is dated the 11th of June, 2001 while the letter of termination of his employment is dated the 4th of October, 2017. Bearing that in mind, the Claimant will only have attained 16 years of service by June, 2017 while he would have completed only 3 additional months by 4th October, 2017.
In other words, the Claimant was in the service of the Defendant for 16 years and 3 months while the terminal benefits is computable on annual basis. Consequently, the Claimant is entitled to terminal benefits for only 16 months which by mathematical computation of N30,000.00 by 16 will amount to the sum of N480,000.00.
Consequent upon the foregoing, the evidence tendered by the Claimant before this court is sufficient to grant the declaratory relief sought by the Claimant in default of entry of defence by the Defendant.
In the light of the foregoing, Claimant is entitled to relief one to the effect that this court makes “a Declaration that the Claimant is entitled to the sum of N480,000.00 (FOUR HUNDRED AND EIGHTY THOUSAND NAIRA) being terminal pay off”.
Relief two is predicated on the success or failure of the declaratory relief sought in relief one as it is for “an order of the Honourable Court directing the Defendant to pay the claimant forthwith the sum of N510,000.OO (FIVE HUNDRED AND TEN THOUSAND NAIRA) being terminal pay off”.
Upon this court finding that the Claimant is entitled to the said declaratory relief though not in the sum stated, it is axiomatic that the Claimant be entitled to the claim sought in relief two and same is accordingly granted to the effect that this court makes: an order directing the Defendant to pay the claimant forthwith the sum of N480,000.00 (FOUR HUNDRED AND EIGHTY THOUSAND NAIRA) being terminal pay off”
Relief three is for the sum of N1,000,000.00 (One Million Naira) only against the Defendant being and representing general damages and cost of filling/litigating the suit and solicitors fee for the debt owed.
The said claim makes a combination of general damages and cost of action and with regards to cost of action, I reckon that the Claimant tendered exhibit C5 which is the Demand letter written to the Defendant, by the Claimant’s lawyer dated the 10th of November, 2017 and wherein the Defendant was given 21days within which to pay the terminal benefit owed to the Claimant failure of which legal action will be taken against the Defendant. The Claimant also tendered exhibit C6 which is a receipt of professional fees paid by the Claimant in the sum of N200,000.00 to his lawyer.
While I reckon that the Claimant has presented receipt to establish the basis upon which he seeks for cost of action, I must posit that cost is awarded at the discretion of the court and the intent is not particularly to punish the other party but to assuage the expenses incurred by a successful party in a suit. The Court of Appeal in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) held that:
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd &Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.”Per SANUSI, J.C.A. (P. 73, paras. D-F).
In the instant case, the Claimant is indeed the successful party in view of the finding and holding that he is entitled to reliefs one and two. In addition, and in view of Exhibit C6, this court is also convinced that the Claimant incurred expenses on litigation of this suit for which he deserves to be assuaged by this court.
With regards to general damages, it is settled that same need not be specifically pleaded or proved as general damages takes into account the determination of whether the party claiming same have been wronged. The court in the case of EFCC v. INUWA & ANOR(2014) LPELR-23597(CA) described the nature of general damages thus:
“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B).
Bearing in mind the foregoing authority, the complaint presented by the Claimant in the instant case is that the Defendant has failed to pay him terminal benefit since the year, 2017 when his employment was terminated and upon the proof that the Claimant is indeed entitled to the said terminal benefit, this court is convinced that the Claimant has been wronged in the extent to which he deserves general damages.
Consequent upon the foregoing, the Claimant is considered to be entitled to relief three to the effect that this court makes:
An order directing the Defendant to pay to the Claimant the sum of N300,000.00 (three hundred thousand naira only) as general damages and cost of action.
That said, I must add that this court is empowered by the provision of Order 47 Rule 7 of the Rules of this Court to make consequential order upon the judgment and orders of this court and in that light, this court finds it to be a fair consideration in view of the facts and circumstances of this case to exercise discretion in favour of the Claimant.
Consequently, this courthereby directs that the monetary claim awarded to be paid by the Defendant to the Claimant must be paid within 30 days, failure upon which same shall attracts interest at the rate of 10% per annum.
Having addressed all the reliefs sought by the Claimant, the sole issue formulated for the determination of this suit is resolved in favour of the Claimant to the effect that in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought in the extent to which same has been granted.
In the light of the foregoing, the Claimant is found to be entitled to the reliefs sought and they are according granted as ordered by this court.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE
