Mr. Francis Obinna Emenugha -VS- Dansa Foods Limited & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

DATE: JANUARY 18, 2018

SUIT NO: NICN/LA/610/2015

BETWEEN

Mr. Francis Obinna Emenugha

Claimant

AND

Dansa Foods Limited
Gata Trading Company Limited

Defendants

REPRESENTATION

Fred. Onyeka for the Claimant.

JUDGMENT

Introduction and Claims

The Claimant approached this Court via his General Form of Complaint on 4/12/15 and sought the following reliefs –

The sum of =N=436,091.00 (Four Hundred & Thirty Six Thousand and Ninety One Naira) being unpaid gratuity/terminal pay covering Claimant’s period of employment with both 1^stand 2^nd Defendants from September 2008 – April 2015.
The sum of =N=613,777.78 (Six Hundred and Thirteen Thousand, Seven Hundred and Seventy Seven Naira, Seventy Eight Kobo) being unremitted pension contributions for the period of September 2008 – April 2015 (minus contributions for June and July 2012) which 1^stand 2^nd Defendants failed/refused to so remit to Claimant’s contributory pension account with Stanbic IBTC Account till date.
The sum of =N=25,000.00 (Twenty Five Thousand Naira) being unpaid medical refund 2^ndDefendant owes Claimant.
The claimant claims further against the 1^stand 2^nd Defendants INTEREST on the total sum of =N=1,074,868.78 (One Million, Seventy Four Thousand, Eight Hundred and Sixty Eight Naira, Seventy Eight Kobo) at the rate of 21% per annum from 1/5/15 until judgment and thereafter at the rate of 6% per annum from the date of judgment until liquidation.
=N=2,000,000.00 (Two Million Naira) being Damages for the trauma, anguish, pain and deprivation caused the claimant by the Defendants by their failure and refusal to pay Claimant his just monies.
Costs.

The Claimant’s General Form of Complaint was accompanied by a statement of facts, list of witnesses, list and copies of documents to be relied at trial. Although, the Defendants were dully served the originating processes, they did not file any defence process.

Case of the Claimant

The case of the Claimant as revealed from his evidence in chief and the processes filed is that he was employed by the 1st Defendant a firm incorporated under the laws of the Federal Republic of Nigeria and carrying on the business of foods and general agricultural processing and sales; that the 2nd Defendant is a sister company of the 1st Defendant carrying on the business of distribution and sales of products of the 1st Defendant; that he was transferred in June 2011 to the 2nd Defendant; that he worked with the 2nd Defendant until 27/4/15 when he resigned his appointment from the 2nd Defendant; that the Defendants refused to pay his entitlements; that his contributory pension deduction was not fully remitted to his Pension Fund Administrator; that his medical refund in the sum of =N=25,000.00 was not paid by the Defendants and all efforts to make the Defendants paid the stated sum proved futile. Although the case was adjourned for the Defendants to cross examine the Claimant, Defendants did not do so and neither did it open its defence.

Submission on Behalf of the Claimant

At the end of trial and pursuant to the direction of the Court learned Counsel to the Claimant filed a 7-page final written address dated 13/7/17. In it, Counsel set down a lone issue for determination as follows –

”Whether this action instituted by the Claimant vide General form of Complaint dated 4/12/2015 and other Originating Processes dated 4/12/2015 against the Defendants who having been served and thus are aware of this action and chose despite repeated service of hearing notices on them refused to come to court to defend this case against them entitles the Claimant to judgment having satisfied the requirements of Law as contained in the National Industrial Court of Nigeria Law and the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017”.

In arguing this lone issue, learned Counsel submitted that there is proof that the Defendants were served all the originating processes as well as hearing notices and yet they stayed away from the case; that the Defendants neither filed any process nor called any witness and that in reaching a just decision, the Court has a cardinal duty to evaluate the evidence before it citing Akanmu v. Adigun (1993)7 NWLR (Pt. 304) 218 at 221 & Whyte v. Jack (1996)2 NWLR (Pt. 431) 407. Learned Counsel prayed the Court to hold that in the face of total lack of evidence against the Claimant, the Claimant has proved his case to be entitled to Judgment as sought. Learned Counsel urged the Court to so hold.

Decision

There is evidence of service of the processes in this case on the Defendants. I also have evidence of proof of service of hearing notices on the Defendants. In other words, the Defendants were given notice of this case against them; they were afforded opportunities to defend same. For reasons best known to them they chose not to take steps to defend this case. The law is trite however that a party cannot be compelled against his will to defend a suit against him. A necessary consequence of that is that such a party cannot be heard on appeal to complain of denial of fair hearing. See Abia State Co-Operative Federation Limited v. Imo State Co-Operative Produce Marketing Association Limited & Anor. (2006) LPELR-5182 (CA). Notwithstanding however that a Defendant elected not to defend a suit, that in itself does not remove the burden on the Claimant from proving his case by adducing cogent, credible and admissible evidence. See Ayeni v . Adesina (2007)All FWLR (Pt. 370) 1451 at 1475. It is always for he who asserts to prove same to the satisfaction of the Court. See Chairman, EFCC & Anor. v. Littlechild & Anor. (2015) LPELR-25199 (CA). I have read and understood all the processes filed on behalf of the Claimant. I heard the oral testimony of the lone witness called by the Claimant, watched his demeanor and carefully evaluated all the exhibits tendered and admitted in this case. I in addition also heard the oral submission of learned Counsel to the Claimant. Having done all this, I set down this lone issue for the just determination of this case thus –

Whether the Claimant has proved his case to be entitled to any or all the reliefs sought.

The position of the Nigerian law and jurisprudence remains that as in the instant case, the Claimant must convince the Court by adducing sufficiently cogent and admissible evidence in support of his claims before the Court will be positively disposed to his case. Now what are the claims of the Claimant in this Court and what are the evidence lead in support of same?

The first relief sought by the Claimant is for the sum of =N=436,091.00 (Four Hundred & Thirty Six Thousand and Ninety One Naira) being unpaid gratuity/terminal pay covering Claimant’s period of employment with both 1^st and 2^nd Defendants from September 2008 – April 2015. Aside from his evidence in chief, the Claimant tendered Exh. C11, a 2-page document, in support of this head of claim. That exhibit is a Payment Request Memo. It originated from the Human Resources Department of the 2nd Defendant. It was dated 27/7/13. It was for the sum of =N=436,091.7 in favour of the Claimant and described as Terminal Pay.The payment of the Terminal Pay as per Exh. C11 was approved by the Managing Director. I find evidence that the approved sum passed through the Internal Audit as well as Head, F & A of the 2nd Defendant. But there is no evidence to the effect that same was paid over to the Claimant. I find the evidence lead by the Claimant on this head of claim unchallenged and un-contradicted in any way or manner by the Defendant. I find and hold that the evidence is reliable and that I have no doubt in relying on same. The 2nd Defendant is here directed to pay to the Claimant the sum of =N=436,091.00 (Four Hundred & Thirty Six Thousand and Ninety One Naira) being unpaid gratuity/terminal pay covering Claimant’s period of employment with both 1^st and 2^nd Defendants from September 2008 – April 2015.

The second relief sought is for the sum of =N=613,777.78 (Six Hundred and Thirteen Thousand, Seven Hundred and Seventy Seven Naira, Seventy Eight Kobo) being unremitted pension contributions for the period of September 2008 – April 2015 (minus contributions for June and July 2012) which 1^st and 2^nd Defendants failed/refused to so remit to Claimant’s contributory pension account with Stanbic IBTC Account till date. In support of this head of claim, the Claimant tendered Exh. C9 – statement of pension account from Stanbic IBTC Pension Managers. Claimant made averments respecting this head of claim in paragraphs 16,17 & 18 of his witness statement on oath dated 4/12/15 which was adopted as his evidence in chief. Claimant also tendered Exh. C9 showing deposits made into the Claimant’s retirement savings account with Stanbic IBTC Pension Managers. The Defendants had the opportunity rebut this claim but they chose not to. I have enough evidence pointing to the fact that the sum stated is due to the retirement savings account of the Claimant. The Claimant has sought payment of the said sum over to him. The necessary intendment of the Pension Reforms Act is for each employee to maintain a retirement savings account with a Pension Fund Administrator into which both the employer and the employee are to make certain contribution on a monthly basis. See Section 9, Pension Reforms Act, 2004. To therefore order the Defendants to pay the amount due over to the Claimant would not support the spirit of that legislation. In alternative, the Defendants are here ordered to pay the sum of =N=613,777.78 (Six Hundred and Thirteen Thousand, Seven Hundred and Seventy Seven Naira, Seventy Eight Kobo) being unremitted pension contributions for the period of September 2008 – April 2015 (minus contributions for June and July 2012) to the retirement savings account maintained by the Claimant with Stanbic IBTC Pension Managers.

The Claimant also sought payment to him of the sum of =N=25,000.00 (Twenty Five Thousand Naira) being unpaid medical refund 2^nd Defendant owes Claimant. In his evidence in chief, the Claimant referred to the 2nd Defendant’s payment request memo dated 9/2/15 which showed that the Management of the 2nd Defendant had approved refund of the medical bills. I find Exh. C12 as evidence of that approval. That exhibit also has accompanying it Official Receipt No: 0076086 dated 3/2/15 from Smith Medical Centre and for the sum of =N=25,000.00. Having found sufficient evidence in support of this relief, the Defendants are ordered to pay to the Claimant the sum of =N=25,000.00 being unpaid medical refund 2^nd Defendant owes Claimant. Pursuant to Order 47 Rule 7, National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 all sums due to the Claimant are to be paid by the Defendants with interest at the rate of 15% per annum from 1/5/15 until final liquidation of the entire Judgment sum. The Defendants are to pay to the Claimant the sum of =N=100,000.00 as cost of this proceedings.

Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,

The 2nd Defendant is here directed to pay to the Claimant the sum of =N=436,091.00 (Four Hundred & Thirty Six Thousand and Ninety One Naira) being unpaid gratuity/terminal pay covering Claimant’s period of employment with both 1^stand 2^nd Defendants from September 2008 – April 2015.
The Defendants are here ordered to pay the sum of =N=613,777.78 (Six Hundred and Thirteen Thousand, Seven Hundred and Seventy Seven Naira, Seventy Eight Kobo) being unremitted pension contributions for the period of September 2008 – April 2015 (minus contributions for June and July 2012) to the retirement savings account maintained by the Claimant withStanbic IBTC Pension Managers.
The Defendants are ordered to pay to the Claimant the sum of =N=25,000.00 being unpaid medical refund 2^ndDefendant owes Claimant.
All sums due to the Claimant (except cost) are to be paid by the Defendants with interest at the rate of 15% per annum from 1/5/15 until final liquidation of the

entire Judgment sum.