MR. CHARLES ADEMU -VS- DANSA FOODS LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATE: 18^TH APRIL, 2018

SUIT NO. NICN/ABJ/193/2016

BETWEEN:

CHARLES ADEMU……………………………………… CLAIMANT

AND:

DANSA FOODS LIMITED ……………………………………….. DEFENDANT

REPRESENTATION

O. SADIQ for the claimant

No appearance for the defence

JUDGMENT

Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 25^th May, 2016 against the defendant for the following reliefs:

Payment of N 4,644,98 .80 being the cumulative sum of Accrued Service Gratuity, three months’ salary as contribution to pension scheme, and two months unpaid salary.

Mandatory Order directing he defendants to remit and or pay all the contributions into the claimant’s Pension No, PEN 100318443525 domiciled with Stanbic IBTC Pension Fund MANAGERA the sum of which is N1, 311, 982, 00.

And any other order(s)

The claimants case

1) The claimant/applicant was a staff of the defendant before he resigned as a result of ill health.

2) The claimant/applicant is entitled to all his retirement benefits.

3) As at 31^st December, 2013, the ACCRUED SERVICE GRATUITY, for the claimant/applicant is in the sum of N2, 581,8o4.8o which has not been paid.

4) The claimant/applicant was an active contributor to the Pension Scheme and maintains Pension Account No PEN100318443525 with Stanbic IBTC, Pension Managers.

5) The monthly deductions at source from the claimant/applicant’s salary into the Pension Account is N35, 048.88.

6) The defendant failed, refused and/or defaulted to remit some deduction from claimant/plaintiff salary into his Pension Account in the sum of N2, 110,976.00

7) The monthly salary of the claimant/applicant in the sum of N500, 970 for the months of January and February were not paid by the defendant.

8) The total amount accrued and not being paid before this action stands at N5, 193,576.80.

The defendant in this suit neither entered appearance nor filed a defence despite the series of Hearing Notices served on them throughout the trial,

At the trial, the claimant testified on his own behalf as CW; tendered six (6) exhibits. Thereafter, the matter was adjourned to 19^th June and 26^th June for cross examination and defence. On both dates the court recorded the defendants absence and the matter was adjourned for adoption of final written addresses and on application of the claimant the defendant was foreclosed Direction was given for the filing of respective written addresses. The claimant’s final written address is dated and filed on 28^th November, 2017, and duly served on the defendants.

On the 7^th March 2018 claimant counsel adopted their Written Addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

I have carefully summarized the evidence of the claimant, the arguments of claimant counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the claimant his written submission are herewith incorporated in this Judgement and specific mention would be made to it where the need arises. The issue for determination in this suit to my mind is whether there is sufficient evidence before the court to warrant the grant of the claimant’s reliefs.

The defendant had ample opportunity to defend this case but made no effort so to do. Before I address the merits of this case it is necessary to clarify some salient points, considering, as stated earlier that the defendants did not defend this action or call any evidence. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the defendant had ample the opportunity to defend this action but chose not to, in this regard I agree with the submission of the claimants that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See MR. THOMAS OLUKAYOKE & ORS VS. TIMBUKTU MEDIA LTD. (UNREPORTED) NICN/LA/25/2011 delivered 6^th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case place before it by the claimant. See IFETA VS. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] VOL. 6 MJSC, CONSOLIDATED RES LTD. VS. ABOFAR VENTURES NIG. [2007] 6NWLR (PT. 1030) 221 AND OKOLIE VS. MARINHO [2006] 15 NWLR (PT. 1002) 316.

But this, however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the defendant’s case or the fact that there is no defence placed before the court. BENJAMIN BILLE VS. MULTILINKS LTD. NICN/LA/175/2011 (UNREPORTED) DELIVERED 6^TH JULY 2012. The absence of evidence by the defence does not exonerate the claimant the burden or proof placed on him. See SECTION 131(1) and (2) Evidence Act 2011, OGUNYADE VS. OSHUNKEYE [2007] 15 NWLR (PT. 1057).The claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU VS. OMOKARO [2003]8NWLR (PT.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the claimant to prove his case in accordance with the minimum evidence rule. In A.G. OSUN STATE VS. NLC (OSUN STATE COUNCIL) & 2 ORS (UNREPORTED) NICN/LA/275/2012 delivered 19^th December 2012 this court held as follows;-

“Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 9 therefore recognizes the right of a defendant not to defend an action filed against him or her. And by order 19 rule 2 where the defendant is absent at the trial and no good reason is shown for the absence, the claimant may prove his/ her case as far as the burden of proof lies on him upon her. This Rule, of course accords with the minima evidential requirement, which is the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held inLAWRENCE AZENABOR VS. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA AT 69and OGUNYADE VS. OSUNKEYE SUPRA AT 247”

Mindful of this position of law I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant.

The rule of thumb in evaluating the claimants evidence is as follows;- “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour” Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD.(2005) LPELR-2153(SC) (P. 9, paras. A-B).

The claimants reliefs are as follows:
Payment of N 4,644,98 .80 being the cumulative sum of Accrued Service Gratuity, three months’ salary as contribution to pension scheme, and two months unpaid salary.

Mandatory Order directing the defendants to remit and or pay all the contributions into the claimant’s Pension No, PEN 100318443525 domiciled with Stanbic IBTC Pension Fund Managers the sum of which is N1, 311, 982, 00.

And any other order(s)

In support of these reliefs the claimant tendered 6 documents

S/No	Title of Exhibit	Exhibit No	Date of Exhibit	Date Tendered
1.	CW Witness Statement on Oath	C1
2.	Acceptance of Resignation	C2	30^th March 2015
3.	Certificate of Accrued Gratuity	C3	19^th May 2014
4.	Confirmation of Remittance….	C4	13^th July 2015
5	RSA Statement	C5	5^th April 2017
6.	Letter of Demand	C6	29^th February

A careful perusal of these exhibit particularly exhibits C3, C4, and C5 reveals the position of the claimant’s case. I find that the clamant has proved his case to the reliefs he seeks but only as far as the law permits. As this court had noted in the ruling refusing summary judgment in this suit there is nothing in the law to empower the Court to make payment of contribution to a beneficiary Where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004. That aspect of relief (a) therefore fails.
The claimant led no evidence in support of his claim to salary or how many month were unpaid, in that regard, that aspect of his claim cannot be granted.
All in all the claimant’s case succeeds but only thus far

The defendant shall pay to the claimant the sum of N2, 581, 804, cumulative sum of Accrued Service Gratuity owed the claimant.

The defendant are hereby ordered to remit and or pay all the contributions into the claimant’s Pension No, PEN 100318443525 domiciled with Stanbic IBTC Pension Fund MANAGERA The sum of which is N1, 311, 982, 00.