IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3RD MAY, 2019 SUIT NO: NICN/YEN/47/2016
BETWEEN:
MR DURU GODSON CLAIMANT
AND
1. LONESTAR DRILLING NIGERIA LTD
2. OLUSEYE OPASANYA SAN DEFENDANTS
REPRESENTATION:
U. E. UZOHO FOR THE CLAIMANT
I. S. B. SUKU FOR THE DEFENDANTS
JUDGMENT
This suit was commenced by a Complaint filed on the 7th of March 2016. The Complaint was accompanied by statement of facts, witness statement on oath and list of documents to be relied upon by the Claimant. Motion for summary Judgment was also filed along with the Complaint. The Claimant’s claim against the Defendants are as follows :-
“1. The sum of N 5,174,500.00 (Five Million, One Hundred and Seventy Four Thousand, Five Hundred Naira), being and representing monies owed to the Claimant by the Defendants as outstanding salaries and entitlements.
2. Interest on the said sum of N 5,174,500.00 (Five Million, One Hundred and Seventy Four Thousand, Five Hundred Naira), at the rate of 30% per annum from 1st September 2011 until judgment is entered in this suit and thereafter at the rate of 10% per annum until final liquidation of the indebtedness by the Defendants.
3. Cost of instituting and maintaining this suit.”
When this matter was resumed before me at Owerri Division on 3rd November 2017, the Claimant’s motion for summary judgment dated 7/03/2016 was subsequently withdrawn and accordingly struck out on 8th of December 2017 after the Defendants had filed a Counter Affidavit to the said motion along with their statement of defence.
The Claimant also filed a motion on 22/2/2018 and dated the same date. The motion was for an Order of attachment of the property of the Defendants as security. It was also withdrawn and accordingly struck out. Likewise a motion dated and filed on the 11/3/2018 and a Notice of preliminary Objection dated and filed on the 13/4/2016 by the Defendants was also struck out.
Hearing in this matter began on the 20th of March 2018 with the Claimant testifying as CW1 who adopted his witness deposition dated 7/03/2016 as well as the further deposition dated 22/02/2018 and proceeded to tender documents which were admitted into evidence.
The case made by the Claimant is that he was employed by the 1st Defendant as a tool Pusher on a salary of N 1,317,500.00 per month. In the course of the claimant’s employment, he was placed on redundancy and as at that time, the 1st Defendant owed the Claimant the sum of N 6,491,846.00 as unpaid salaries and allowances. However, contrary to the custom of the trade, the 1st Defendant did not raise a cheque for all the Claimant’s outstanding entitlements. Instead, the 1st Defendant merely paid the Claimant the sum of N 1, 317,500.00 out of the total sum of N 6,491,846.00 owed the Claimant. That despite the Claimant’s continued attempts to recover the outstanding of his entitlements, being N 5,174,346.40, the 1st Defendant, according to the Claimant has continued to unreasonably and unjustifiably refused, failed and neglected to pay him despite several demands and entreaties for payment. In the Claimant’s bid to recover his money, he wrote several letters to the Independent Corrupt Practices Commission (ICPC), Department of Petroleum Resources (DPR), and litigating against the Defendants up to the point of execution. It is the Claimant’s case that the 1st Defendant has never denied the outstanding entitlements of the Claimant but rather it has always been giving reasons of operational challenges. That the 1st Defendant has acknowledged its liability to the Claimant.
Claimant also stated that he filed a case against the 1st Defendant at Magistrate Court PortHarcourt where he got judgment in the sum of N 5, 000,000 but the 1st Defendant pleaded with him to hold off the execution of the judgment obtained, and gave him the sum of N 840,000.00 (Eight Hundred and Forty Thousand Naira) to mitigate the cost of execution. That the amount so given is separate and unconnected with the entitlements being claimed.
The Claimant tendered a letter dated 01/09/2011 written by the 1st Defendant which was admitted and marked as Exhibit 1. Email dated 30/08/2012 was tendered and admitted as Exhibit 2. Communiqué dated 14/11/2012 was admitted as Exhibit 3. A letter written by the Claimant’s solicitors dated 10/05/2012 was admitted in evidence as Exhibit 4. Another letter written by the Claimant’s solicitors dated 24/08/2012 was admitted as Exhibit 5. Yet another letter written by the Claimant’s solicitor dated 04/09/2012 was admitted in evidence and marked as Exhibit 6. A letter written by the Ministry of Petroleum Resources dated 17/10/2012 was tendered and admitted in evidence as Exhibit 7. A letter dated 13/11/2012 written by the ICPC was admitted as Exhibit 8. An acknowledgment receipt signed by the claimant dated 03/08/2015 was admitted as Exhibit 9. A memorandum of understanding dated 03/08/2018 was admitted in evidence as Exhibit 10. Letters dated 10/09/2015 and 21/10/2015 were tendered and admitted in evidence as Exhibits 11a and 11b, respectively.
On 20th April 2018, CW1 was cross examined by counsel for the defendant and subsequently discharged.
After a failed attempt at settlement, the Defence opened its case on the 19th of July 2018 with DW1, Blesssing Nwator, a human resource supervisor with the 1st Defendant being sworn and adopting her witness statement on oath. DW1’s Witness Statement on oath was filed on the 17th of July 2018 where DW1 testified but tendered no document and was subsequently cross examined by the Claimant’s counsel. Upon the discharge of the DW1, the Defence closed its case and final addresses were ordered for the 2nd of October 2018.
On its part, the Defendants have through DW1 contended that the sum of N 5, 174, 346.40 is not owed the Claimant by them. The Defendants have disclaimed the letter written on its behalf acknowledging the debt of N 5,174,346.40 as being owed to the Claimant. Defendants averred that N 2,500,000.00 is the total negotiated and agreed entitlement of the Claimant. That out of the agreed figure of N 2,500,000.00, the sum of N 1,317,500 had earlier been voluntarily given to the Claimants. That subsequently, the Claimant received N 840,000.00 (Eight Hundred and Forty Thousand Naira) from the Defendant. As a consequence, N 342,500.00 is the amount owed and outstanding to the credit of the Claimant and nothing more. The Defendants have averred that contrary to the position taken by the Claimants, it is not true that the sum of N 840,000.00 (Eight Hundred and Forty Thousand Naira) was given to the Claimant as cost of execution.
The Claimant filed a Reply to the statement of Defence on the 22nd of February 2018. By that means the Claimant contended that it is not true that he negotiated or discussed redundancy benefits with the Defendants as claimed. Rather, that they merely reconciled accounts to ascertain the outstanding balance of his entitlements. Also, the Claimant contended that it is untrue that the sum of N 5,174,346.40 was admitted in error by Mary, Awana, and the then Human Capital Manager of the 1st Defendant. The Claimant refutes making an agreement with the Defendants to be paid N 2,500,000.00 instead of N 5, 174,346.40 as alleged by the Defendants. Rather, that it was a time sensitive offer extended through a letter dated 10th September 2015 to the 1st Defendant stating that the Claimant would welcome “immediate” payment of N 2,500,000.00 in full and final settlement of the Claimant’s entitlements. However, that the 1st Defendant having failed to furnish consideration in good time, the offer was effectively rescinded and overtaken by the subsequent letter of 21st October 2015. That the only agreement between the parties is for the payment of N 5,174,346.40. Regarding the sum of N 840,000.00, the Claimant maintained that the amount was not given as part of his entitlement but was rather arrived at after a calculation of the claimant’s cost of execution and incidental expenses. The Claimant has proposed to rely on the acknowledgement of receipt made on 03/08/2015 and the Memorandum of Understanding made between the parties to show that the said sum was not part of the N 5,174,346.40 in issue.
The Claimant denied that the 1st Defendant is only indebted to him in the sum of N 342,500.00 only as alleged by the 1st Defendant. The Claimant maintains that having earlier been paid the sum of N 1,317, 500.00 by the 1st Defendant, that his outstanding entitlement is N 5,174,346.40.
The Claimant also denied any knowledge of the 1st Defendant being under receivership.
The Defendants Final Written address was filed on the 27th of July 2018 where the Defendants posed two (2) issues for determination by the Honourable Court as follows:-
“Whether the burden of proof is not on the claimant to establish indebtedness of the Defendants to him to the tune of N 5, 174, 500.00?
Whether on the preponderance of evidence adduced in trial, the claimant has satisfactorily discharged the burden on him to warrant the judgment of this Court?”
On issue one above, the Defendants’ Counsel invoked the provision of section 131 of the evidence Act and the dictum of Tobi JSC in the case of CALABAR CENTRAL COOP. THRIFT & CREDIT SOCIETY LIMITED &ORS V. EKPO (2008) LPELR-825 (SC) to argue that the position of the law is clear that the burden of proof is on him who asserts the affirmative. Counsel submitted that the burden of proving that N 5, 174, 500.00 is the outstanding salaries and entitlements owed the Claimant is the Claimant’s.
On issue two, counsel for the Defendants argued at some length, pointing out that the evidence adduced by the Claimant in aid of his case before this Honourable court could not sustain it. First counsel argued that Exhibit 1 emanated from the Human Capital Manager of the 1st Defendant. That it was not within the scope of her employment to have issued Exhibit 1 as typically such could and should only reasonably emanate from the finance department of the Defendant. Counsel hinted at the likelihood of collusion between the said Human Capital Manager and the Claimant. Counsel placed reliance on the provision of Section 66 of the Companies and Allied Matters Act to argue that such act by the Human capital Manager does not come within the stated exemptions in that provision hence, is incapable of binding the Defendant as a company.
Moving on, counsel argued that Exhibits 2, 3, 4, 5, 6, 7 and 8 do not establish the liability of the Defendants to the Claimant at all. Counsel also argued that Exhibit 9 which the Claimant has presented as acknowledgment for the N 840,000.00 allegedly paid to the Claimant for cost of execution does not represent the truth of the nature of the payment. According to counsel, the document cannot bind the 1st Defendant because the 1st Defendant is not the maker of it and neither is the 1st Defendant privy to its making. Counsel therefore maintained that the said sum of N 840,000.00 was given to the Claimant by the 1st Defendant in further settlement of his entitlement and not for the cost of execution as alleged by the Claimant.
Counsel then argued regarding Exhibit 10, the Memorandum of Understanding made on 03/08/2015 that it was made pursuant to the ill-fated Judgment of the magistrate Court and therefore can no longer hold sway since that judgment collapsed.
Concerning Exhibits 11a and 11b, Counsel argued that they respectively, only go to show that the redundancy was negotiated between the parties and the Claimant has been reluctant to adhere to mutually agreed terms.
It is remarkable that counsel pointed to the fact that the Claimant failed or neglected to bring his contract of employment before the court, arguing that by law, it is fatal to the case of the Claimant. Counsel cited the case of PATRICKS ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544(SC), NEPA V. ADEYEMI (2006) LPELR – 5932 (CA) AND N.I.I.A. V. AYANFALU (2007) (VOL. 28) WRN 34 AT 63 – 64 LINES 40 – 20 (CA).
Defendants’ counsel urged this Honourable Court to dismiss the claims of the Claimant with substantial cost in favour of the Defendants.
The Claimant’s final written address was filed on the 4th of September 2018. The Claimant’s counsel reacted to the issues raised by the Defendants and submitted an issue for determination by the Court as follows;
“Whether in the circumstances of this case the claimant, has adduced enough evidence in proof of his case.”
Claimant’s counsel argued that the Claimant was employed by the 1st Defendant and no proof is required of that fact.
Counsel also argued that parties agreed that the Claimant was disengaged by being declared redundant by the 1st Defendant as seen in exhibit 1.
It was the further argument of counsel that the Claimant is clear on how much he is owed by the Defendants and how he has been consistent with his demand.
Pertaining to Exhibit 1, counsel argued that the said Human Capital Manager can be said to have acted in her capacity as agent of her employer. Hence Counsel referred to the Court to the case of IYERE V. B. F. & F. M. LTD (2008) 12 M.J.S.C 102, in submitting that the employer is liable for the act of the employee.
With regards to Exhibits 4, 5, and 6, Counsel argued that these go to show that the Claimant’s claim is for unpaid salaries and allowances and not for redundancy benefits as being presented by the Defendants. Counsel further maintained in argument that exhibits 4, 5 and 6 are also clear that there was no negotiation between the parties.
As to the contention by the Defendant that the Claimant colluded with the Human capital manager to produce Exhibit 1, Counsel submitted that the allegation has an imputation of commission of crime which subject to Section 138 of the Evidence Act, must be proved beyond reasonable doubt.
DECISION OF THE COURT
Having gone through the processes filed by the parties, the evidence adduced and the submissions of the parties, I wish to first point out that the claims before this Honourable Court are for unpaid salaries and entitlements of the Claimant. it is a fact in evidence before me that the Claimant was placed on redundancy by the 1st Defendant and at that time he was being owed his unpaid salaries and entitlements by the 1st Defendant.
Exhibit 1 is apt. It is a letter that emanated from the 1st Defendant informing the Claimant that owing to him being placed on redundancy since August, 2010, the 1st Defendant shall pay him the sum of N 5, 174,346,40 as his outstanding entitlement in due cause.
I observe from the above Exhibit 1 that there was employer and employee relationship between the Claimant and the 1st Defendant. I also observe that the monthly salary of the Claimant was stated.
Although there is no contract of employment brought before the Court, but it is worth pointing out that the Defendants have never denied employing the Claimant neither have they materially disputed what the Claimant’s claims to be his monthly pay.
Though the Defendants contended that Exhibit 1, was made in error and ignorance but the said contention is not supported by evidence. The Defendants have submitted in their address that for Exhibit 1 to be viable, it would have had to emanate from its account department which is the authority with respect to its financial matters. It is the law that once a Claimant proves the existence of a particular fact, the burden of disproving that fact shifts to the Defendant. SEE AKINBADE V BABATUNDE (2017) LPELR-43463.
The Defendants did not however produce any document from its account department to counter the substance of Exhibit 1. It is trite that mere denial without more does not make a defence to an action. SEE SGB (NIG) LTD V PANATRADE LTD V 1994) NWLR (PT. 352) 720. I therefore have no doubt that Exhibit 1 not only emanates from the Defendants but is binding on them.
Moreover, Exhibit 1 emanated from the Human Capital Manager of the 1st Defendant. The contention that she acted outside the scope of her employment to have issued Exhibit 1 cannot hold sway. The 1st Defendant mentioned a fact which is especially within its knowledge and I believe the burden of proving that fact is upon it. See section 140 of the Evidence Act, 2011.
Then again, there is the allegation of likelihood of collusion between the said Human Capital Manager and the Claimant. Suffice it to state that the burden of proof in a case cannot be determined in a vacuum but in relation to the issues raised in the pleadings. Where a fact is pleaded and no evidence is adduced to prove the fact pleaded, no onus is cast on the other side to disprove the fact not proved. SEE MRS ETHEL ONYEMAECHI DAVID ORJI V. DORJI TEXTILES MILLS (NIG.) LTD. & 2 ORS (2009) 12 SC (PT. III) 73. I have gone through the pleadings of the parties and found that the allegation was not even pleaded by the Defendants and It is trite that evidence on facts not pleaded goes to no issue as parties normally join issues on the facts pleaded. PRINCE KILANI ADEKEYE V PRINCE SUMMONU ADESINA (2010) NWLR (PT.1225) 449 SC is a case in point.
The allegation was raised in the Defendants’ final written address, and it is the law that address of counsel cannot take the place of evidence no matter how brilliant it appears. I agree with the claimant that this allegation has an imputation of crime requiring proof beyond reasonable doubt. Alas, the Defendants have not met this standard.
I am in agreement with the Claimant that the employer is liable for the act of the employee.
It is evident from the body of evidence before me that the Claimant upon being made redundant by the Defendants was paid and acknowledged receiving the sum of N 1,317, 500.00. Equally, it is not disputed that the 1st Defendant subsequently parted with the sum of N 840,000.00, in favour of the Claimant, though the purpose for the latter sum has been greatly disputed by the parties.
It is on record before this Court that under cross-examination, the Claimant said that the N 840,000.00 he received subsequently was for execution of the judgment which he obtained against the Defendants from the Magistrate Court. The Claimant called in aid of this submission Exhibit 9, which is the receipt acknowledging the sum by the Claimant. The Defendants have denied knowledge of Exhibit 9. The said Exhibit 9 bears the signature and/or marking of the Claimant.
It is also on record before the Court that despite the Claimant’s continued attempts to recover the outstanding of his entitlements, being N 5,174,346.40; the 1st Defendant has refused, failed and neglected to pay the Claimant despite several demands and entreaties for payment. It is in evidence that in the Claimant’s bid to recover his money, he wrote several letters to the Independent Corrupt Practices Commission (ICPC), Department of Petroleum Resources (DPR). Claimant also stated that he filed a case against the 1st Defendant at Magistrate Court PortHarcourt where he got judgment in the sum of N 5, 000,000 but the 1st Defendant pleaded with him to hold off the execution of the judgment obtained, and gave him the sum of N 840,000.00 (Eight Hundred and Forty Thousand Naira) to mitigate the cost of execution. That the amount so given is separate and unconnected with the entitlements being claimed.
Going by the foregoing and in the face of Exhibit 10 which is a Memorandum of Understanding between the 1st Defendant and the Claimant that the 1st Defendant would pay the claimant the sum of N 5, 000,000 on or before 31/8/2015, I am of the opinion that the sum of N 840,000.00 given to the Claimant was not part of the substantive claim. I find that it was given to the Claimant as a palliative to the cost of execution. If the N 840,000.00 given to the Claimant was part of his entitlements, then the 1st Defendant would not have agreed to pay the Claimant the sum of N 5, 000,000 in Exhibit 10. The said exhibit 10 was made on the 3/8/2015, the same date Exhibit 9 was made.
For most of the Defendants cases cited, I have carefully looked at the cases cited and the context to which they have been so cited. With respect, I am of the opinion that the point sought to be made by the Defendants in citing these cases is misdirected. The cases portend to a Claimant’s obligation which he has to present the contract of employment as a prerequisite to a successful action for wrongful termination. They do not contemplate a Claimant seeking for payment of his owed salaries and entitlements consequent upon redundancy as in this case. There is a world of difference here. As such, I find that the cases cited by the Defendants’ counsel are of no moment whatsoever as they have been seriously misapplied.
On the whole, I am satisfied that the Claimant has proved his case against the Defendants, and I hereby ordered as follows:-
1. That the Defendants shall pay to the Claimant the sum of N 5,174,500.00 (Five Million, One Hundred and Seventy Four Thousand, Five Hundred Naira), being his outstanding salaries and entitlements.
2. 10% interest per annum until final liquidation of the judgment sum.
3. N 500, 000 Cost is awarded against the 1st Defendant.
Judgment is entered accordingly.
….……………………………………
HON. JUSTICE S. H. DANJIDDA
JUDGE
