IN THE NATIONAL INDUSTRIALCOURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI
SEPTEMBER 27, 2018
SUIT NO: NICN/LA/609/2017
BETWEEN
MR. EYENUWEN THOMPSON ……………. CLAIMANT
AND
GERMAINE AUTO CENTRE LIMITED ……………. DEFENDANT
REPRESENTATION
O.I. Okon for the Claimant.
O.O. Mukperu for the Defendant.
JUDGMENT
By General Form of Complaint dated 7th December, 2017 and filed on the same date the Claimant claims against the Defendant as follows:
a. N1, 750,000.00 (One Million Seven Hundred and Fifty Thousand Naira) being the Claimant’s final entitlement of service, during the period he was in the employment of the Defendant.
The Defendant in reaction to the Claimant filed a Statement of defence, filed and dated 20th of December, 2017. Trial in the suit commenced on the 2nd of February, 2018 and was concluded on 22nd of March 2018 wherein, the Claimant gave evidence as CW1 while Akinwale Talabi the head of Human Resources Department of the Defendant testified on behalf of the Defendant.
THE CLAIMANT’S CASE
The Claimant was employed as Mechanic Grade I by the Defendant vide an offer of employment dated January 4, 1999 and he rose to the rank of Technical Manager until his resignation on June 22, 2016. The Defendant, in its letter of acceptance of the Claimant’s resignation, told the Claimant that its account department would pay to the Claimant his final entitlement in the sum of N1,750,000.00 in ten equal instalments effective from September 2016 which the Defendant has defaulted despite with the Claimant’s demand for same, hence this suit.
The Claimant testified on his behalf during trial by adopting his witness depositions on oath and tendered five documents which were admitted and marked accordingly.
THE DEFENDANT’S CASE.
The Defendant is a private company, duly incorporated under the Company and Allied Matters Act, with its registered office at 4th Roundabout, Lekki-Epe Expressway, Lagos. The Claimant was employed by the Defendant vide an appointment letter dated 4th, January, 1999 until he resigned from the Defendant on the 22nd of June, 2016.The Claimant has claimed the sum of N1, 750,000.00 (One Million Seven Hundred and Fifty Thousand Naira) being the sum allegedly owed to him by the Defendant as final entitlement for the period he worked with the Defendant. It is the Defendant’s case that the Company was acquired by a new management who was unaware of debts incurred by the Company’s previous management at time of the acquiring the Defendant.
During trial, Akinwale Talabi, the Defendant’s Head of Human Resources testified for the Defendant, the Witness adopted his Witness Statement on Oath dated 16th March, 2018 and tendered one document in proof of the Defendant’s case.
THE SUBMISSIONS OF THE DEFENDANT
Learned counsel to the Defendant identified a sole issue for determination in his final address which reads thus:
“Whether or not the Claimant is entitled to judgment in this case, if yes then whether or not the Court can make an Order for instalmental payment of the Claimant’s claim”
On the issue raised, learned counsel for the Defendant commenced arguments by submitting that throughout the course of trial in the suit the Defendant had never denied the fact that it owed the Claimant what learned counsel to referred to as ‘some money’. However learned counsel to the Defendant contended that there are special and exceptional circumstances to warrant the intervention of the Court to make an order for the payment of the Claimant’s claim installmentally on the basis that the order is required and necessitated by the enormous financial burden which learned counsel submitted that the Defendant purportedly is under.
The submissions of learned counsel to the Defendant substantially was premised on the fact that the Defendant Company had been acquired by a new management who were unaware at the time of acquiring the Defendant that the Company had incurred several debts prior to the acquisition. One of such debts learned counsel to the Defendant contended includes the claim of the Claimant which he argued was at the stage of negotiation at the time of the acquisition of the Defendant by its present management. Learned Counsel canvassed argument to the effect that the new management of the Defendant has been faced with incessant demands and numerous monetary claims from several creditors and that in a bid to keep the Defendant afloat and to meet its obligations the Defendant has taken steps at renegotiate the terms of it’s inherited debts. It was also contended that since acquisition of the Defendant, the company has been faced with a truck load of monetary claims emanating from various creditors and that due to the enormous financial burden the Defendant Company is faced with from the demands of all its creditors at the same time, the Defendant approached all it’s Creditors in a bid to renegotiate all inherited debts and work out a convenient repayment plan for all such outstanding debts as the Defendant claims that it is impossible for the Defendant to satisfy all of its creditors at once in view of its financial capabilities and the huge sums owed to its creditors. Learned counsel to the Defendant referred to what he described as an ‘unfortunate predicament of the Defendant in contending and submitting that the Defendant had reached out to the Claimant on two different occasions for an amicable resolution of the claim of the Claimant and on this submission the learned counsel to the Defendant referred the Court to Exhibit DWD-D1(Defendant’s letter for amicable settlement dated 14th December, 2017); the contents of which learned counsel to the Defendant submitted that the Claimant had admitted same under cross-examination when he said; “Someone called me from Germaine Auto Centre and offered me some money”.
It was argued strenuously by the Defendant’s counsel that a prayer for an order for instalmental payment is not granted as a matter of course and that its grant or refusal is based on the discretion of the Court which must be exercised judiciously and judicially. It was submitted that prior to the institution of this suit, the Defendant had shown its interest at finding an amicable settlement of the claims of the Claimant and that the Defendant did not waste the time of the Court sequel to the institution of this suit. Learned Counsel to the Defendant also canvassed argument that it had averred in its Statement of Defence that the Defendant is currently under a new management and that since acquisition of the Defendant by a new management, the company had faced settling various debts owed by the Company’s previous management to different creditors which had put a strain on the Defendant’s financial capabilities. Learned counsel to the Defendant in view of the foregoing submitted that the Court is empowered to make an Order of instalment payment by Order 49 Rule 11 (1) and (2) of the National Industrial Court Rules of Nigeria 2017 which learned counsel canvassed vests the Court with unfettered discretion to make an Order as to instalmental payment of a debt at the time of delivering its judgment.
On the claims of the Claimant before the Court, learned counsel to the Defendant submitted that the debt is undisputed and that the case of the Defendant is for the Court to exercise its discretion as empowered it under Order 49 Rule 11 (1) and (2) of the Rules of the Court by making an Order for the installmental payment of the debt in the sum of N1,750,000.00 until the entire debt is liquidated. To learned counsel to the Defendant the Order being sought by the Defendant will enable the Defendant to remain afloat and continue operations which would enable the Company continue to service debt owed to the Claimant and its other Creditors. It was also submitted that an order for the convenient and structured re-payment plan of the Claimant’s claim is necessary and appropriate in the circumstance of this suit as the grant of the Order would aid the Defendant from going into bankruptcy/liquidation. In the estimation of learned counsel to the Defendant, if the Order is not granted the Defendant could go into liquidation and cause all the Defendant’s creditors to lose money owed them by the Defendant. On the submissions canvassed under this line of argument, learned counsel cited the case of A.C.B LTD VS. DOMINICO BUILDERS CO. LTD (without citation).It was further contended that the order prayed the Court is one of an equitable nature, and like any other equitable relief, the grant of same requires a disclosure of sufficient facts. On disclosure of sufficient facts learned counsel to the Defendant submitted that the Defendant had furnished the Court with sufficient reasons why the Court should exercise its discretion in favour of the Defendant, on this he cited the case of WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145, and CHUKWU VS. ONYIA (1990) 2NWLR (PT 130) 80 AT 85. It was further contended that the Claimant in forcing the hands of the Defendant to pay the sum claimed in full may cause the Defendant to go into liquidation or bankruptcy which would result in a loss for Defendant’s creditors. On the foregoing learned counsel to the Defendant urged the Court to exercise its powers by making an Order for instalmental payment of the Claimant’s claim.
It was also contended that the Defendant’s credibility was established through its witness testimony under cross-examination as learned counsel to the Defendant inferred that Claimant Counsel had alleged that the Defendant’s witness (Mr. Akinwale Talabi) had lied in paragraph 11 of his Witness Statement on Oath (Exhibit DW1 A- A2) when he stated that paragraphs 4, 5 and 6 of the Claimant statement on oath were false. On this issue, learned counsel to the Defendant submitted unequivocally that for the sake of clarity the facts contained in Exhibit DW1A- A2 is not in any way false nor was same made in an attempt to hoodwink the Court. Learned counsel to the Defendant however admitted that it is true that the Defendant is yet to make any payment to the Claimant and further asserted that the said paragraph simply debunks the Claimant’s assertion that the Defendant had not made any attempt whatsoever to settle the Claimant’s claim. On the foregoing, learned counsel to Defendant urged the Court to discountenance the Claimant’s allegation that the Defendant’s witness lied in paragraph 11 of Exhibit DW1 A- A2 when Claimant’s Counsel pointed out under cross examination of DW1 that the averments contained in the said paragraph are not a correct recount of events but a selected assertion. The said allegation to counsel to the Defendant was made to hoodwink the Court into believing that the Defendant’s witness (Mr. Akinwale Talabi) is not a witness of truth and in support of the foregoing, the learned counsel relied strongly on Exhibit DWD-D1(the Defendant’s letter for amicable settlement dated 14th December, 2017.) in the Defendant’s final address.
The Defendant concluded its final address by urging the Court to resolve the issue raised in its address in favor of the Defendant and to make an order for instalmental payment of the Claimant’s claim.
THE SUBMISSIONS OF THE CLAIMANT
The Claimant joined issues with the Defendant by adopting the sole issue formulated by the Defendant in its final address and answered the issue raised for determination in the affirmative by positing that the Claimant is entitled to judgment in this suit and not payment by instalment.
Learned Counsel to the Claimant commenced argument in his address by contending that by the averments contained in the Defendant’s Statement of Defence and the evidence led in support of same, it cannot rightly be said that the Defendant denied owing the Claimant the sum of N1,750,000.00 (One Million, Seven Hundred and Fifty Thousand Naira) claimed by the Claimant. Learned counsel to the Claimant argued that to the Claimant the averment in paragraph 9 of the Defendant’s Statement of Defence is in fact an admission of the fact that the Defendant owes the Claimant the amount claimed, learned counsel reproduced the said paragraph and the averments as follows “the defendant avers that it is willing and ready to re-negotiate the claimant’s claim…” On the foregoing to Claimant‘s counsel same is an admission of the Claimant’s claim by the Defendant. The admission to learned counsel has established that the Claimant is entitled to judgment as claimed and based on this argument the Court was urged to so hold.
On the issue of the burden of proof on the issue of its claim, learned counsel to the Claimant submitted that same is reduced as fact admitted need no further proof. On this the Claimant relied on Section 123 of the Evidence Act 2011 and cited the case of Santi Vs. Bagobiri (2005) 2 F.W.L.R (Pt. 263) 550 r.3. Learned Counsel to the Claimant went on to contend that the evidence of DW1 (Mr. Akinwale Talabi) at paragraph 10 of his written statement on oath confirmed the Defendant’s indebtedness to the Claimant. It was also submitted that the Defendant had placed the blame of non-payment of money owed the Claimant on the Defendant’s new management which to learned counsel to the Claimant is not the business of the Claimant and on this line of argument learned counsel to the Claimant relied on the case of Egbunike Vs. ABC Ltd (1995) 2 NWLR (pt. 375) 34 r.10 in urging the Court to enter judgment in favour of the Claimant.
Claimant’s learned counsel identified a second leg of the sole issue for determination which to learned Counsel is as regards the prayer asking the Court to enter judgment for instalmental payment of Claimant’s Claim. To the Claimant’s counsel, a prayer for installmental payment is an equitable remedy and as an equitable remedy, the request must meet the equitable conditions of exceptional and special circumstances before same can be granted. On the foregoing Claimant’s counsel relied on the case of Alhaji Isyaku Vs. Mr. Prince Chidi Ugwu (2017) DLR CA 1214.Claimant’s counsel canvassed further that the relief sought in the Defendant’s address is equitable and like any other equitable relief, it requires a disclosure of facts. To learned counsel for the Claimant, the Defendant owes a duty to place enough materials before the Court to warrant the exercise of the discretion sought in his favour, on the foregoing the Claimant counsel cited the judgment of the Supreme Court in the case of Williams V. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 andChukwuVs. Onijia (1990) 2 NWLR (Pt. 130) 80 at 85 where the Court held that “the burden is on the judgment debtor to satisfy the court that, placing his liability and obligations against his income and all his assets, he derives to be granted some equitable terms of settling the indebtedness (by installment). A judgment creditor has no burden to show that the judgment debtor has the means to pay the judgment debt immediately. This is why his affidavit must present detailed facts with every candour. There cannot be a full and frank disclosure upon nebulous facts from which no concrete and verified information can be ascertained”.Claimant ‘s counsel also relied on the case of Livestock Feeds Plc Vs. Igbino Farms Ltd (2002) 5 NWLR (Pt. 759) 118 where the court held that: ‘
The Claimant’s counsel in contending the Defendant’s submissions for the installment payment of the Judgment sum also relied on the holding of the Court in Alhaji Isyaku (Supra) and the holding of the Court thereof on instalmental payment. Learned counsel argued further against the grant of the prayers of the Defendant by stating that in the judgment of the Supreme Court in A.C.B. Ltd. Vs. Ehiemuna (1978) 2 SC 73 at 76, it was held that a situation where a judgment debtor is allowed to take 26 years to repay a judgment debt of N6,000.00 (Six Thousand Naira) would amount to frustrating the judgment the trial judge awarded the plaintiff. To learned counsel to the Claimant from the submissions of the Defendant’s Counsel in the Defendant’s final written address and from the case cited above, an application for installmental payment of judgment debt is equitable and requires disclosure of sufficient facts and in learned counsel’s opinion the question to be raised herein is “whether the Defendant had disclosed sufficient facts that would warrant granting the prayer for installmental payment in it’s favour” and in answering the question asked the learned counsel to the Claimant answered same in the negative. Learned counsel argued that the Pleadings of the Defendant did not disclose the audited account/ financial statement of the Defendant so as to aid the court at knowing the financial status, income, assets and liabilities of the Defendant which are requirements as held by the Court in Livestock Feeds Plc (Supra). On the foregoing, learned counsel to the Claimant urged the Court to recall that the exercise of its discretion cannot be granted in favour of the Defendant where facts are misrepresented or undisclosed enough. Learned counsel argued strenuously that the Defendant did not disclose its income or assets to show the Court that it is incapable of paying the Claimant immediately. Learned counsel to the Claimant also added that the Defendant’s witness dwelled extensively on the fact of the Defendant is under a new management and this to the Claimant cannot persuade the Court to help the Defendant. Learned counsel also argued that an application for instalmental payment is pre-empting that judgment will be in favour of the Claimant and hence the prayer by Defendant’s Counsel in his address will amount to frustrating the judgment of the Court by the Court.
Claimant’s Counsel also pointed that Order 49 rules 11 (1) & (2) of the National Industrial Court Rules of Nigeria, (Civil Procedure) Rules 2017 does not make it mandatory for the Court to grant instalmental payment, especially as the word “may” is used as an operative word in the Rule. To the Claimant’s counsel the Defendant’s proposal for instalmental payment is vague in the sense that there is no amount given or schedule provided as to how the amount is to be paid. It was also the contention of Claimant’s Counsel that the Defendant never had the intention of paying the Claimant a single installment atleast in view of their letter of acceptance dated 22nd July, 2016, despite repeated demands. Learned Counsel concluded arguments in its final address by praying the Court to enter judgment in favour of the Claimant as claimed and that the judgment sum be paid at once and not by instalment as there is no supporting evidence to warrant instalmental payment as the Court cannot act in speculation.
COURT’S DECISION
I have painstakingly examined all the processes filed and the submissions of the parties. In my view, the only issue that presents itself for determination is whether the Claimant has proved his entitlement to the relief claimed or not.
The onus of proving this claim squarely rests on the Claimant based on the minimal evidence rule see Azenabor vs. Bayero University, Kano (2009) LPELR (CA).
The Claimant’s claim is for the sum of #1,750,000.000 (One Million, Seven Hundred and Fifty Thousand Naira Only) being his final entitlements in the Defendant’s employment. The Claimant, to discharge the burden placed on him, tendered Exhibits CWB- B1 i.e. Offer of Employment, Exhibit CWC i.e. Letter of Resignation, Exhibit CWD i.e. Acceptance of Resignation, Exhibit CWE i.e. Letter of Demand, Exhibit CWF i.e. Letter of Reminder and Exhibit CWF1. The Claimant also adopted his written statement on oath.
The Defendant, in its Statement of Defence and the DW’s Statement on Oath, which are in exact terms did not deny the Claimant’s claim. The Defendant instead sought for amicable settlement of the matter citing change in the Defendant’s management which inherited huge debt from its predecessor as the reason for the Defendant’s inability to settle the Claimant’s entitlement.
I have carefully examined the Exhibits admitted, Exhibit CWB is the Claimant’s Offer of Employment dated January 4, 1999, Exhibit CWC is the Claimant’s Letter of Resignation with effect from July 22, 2016, Exhibit CWD is the Defendant’s Letter accepting the Claimant’s resignation, it is dated 22/7/16 and in it, the Defendant admitted the Claimant’s entitlement to the sum of #1,750,000.000 (One Million, Seven Hundred and Fifty Thousand Naira Only) thus:
“Account Department is hereby advised to pay your final entitlement. One Million Seven Hundred and Fifty Thousand Naira only (#1,750,000) being your final entitlement. It will be paid in ten equal instalments with effect from September, 2016”
The Defendant did not challenge the Claimant’s evidence and the law is that when evidence is unchallenged and uncontroverted, the onus of proof is discharged on a minimal evidence see U.B.A. vs. Mustapha (2003) LPELR-6203 CA. This being the case, i am satisfied that the Claimant has proved his entitlement to the only relief being sought.
In its final written address, the Defendant formulated a sole issue for determination thus: “Whether or not the Claimant is entitled to judgment in this case, if yes then whether or not the Court can make an Order for payment the claim by instalment”. In arguing the sole issue, the Defendant admitted owing the Claimant the amount being claimed but cited Order 49 Rule11 (1) and (2) of the Rules of this Court and urged this Court to make an order for payment of the amount by instalment to save the Defendant from liquidation.
In his final written address, the Claimant strongly opposed the Defendant’s application for payment by instalments. To the Claimant, the submissions of the Defendant’s Counsel and the authorities cited, an application for payment of judgment debt by instalments is equitable relief that requires full disclosure of facts. To the Claimant, the question is whether the Defendant had disclosed sufficient facts that would warrant granting the prayer for payment by instalment? The Claimant, the answer is no. The Claimant also argued that Order 49 Rule 11 (1) and (2) of the National Industrial Court Civil Procedure Rules 2017is discretionary and not mandatory. I am inclined to believe with the Claimant’s argument that the Defendant has not placed anything before this Court to prove its entitlement to an order for payment by instalments.
In all and for the reasons stated, I’m satisfied that the Claimant’s case succeeds, accordingly, it is hereby ordered that the Defendant shall pay to Claimant the sum of #1,750,000.000 (One Million, Seven Hundred and Fifty Thousand Naira Only) within 30 days of this Judgment failing which shall attract an interest at the rate of 20% per annum until the sum is fully liquidated.
Judgment is entered accordingly. I make no order for cost.
………………………………………………
HON. JUSTICE MUSTAPHA TIJJANI
