Mr. Goodness Allison Gomba -VS- Jarander Service Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 12^TH DECEMBER, 2018 SUIT NO: NICN/YEN/66/2016

BETWEEN:

GOODNESS ALLISON GOMBA —————— CLAIMANT

AND

JARANDER SERVICES NIGERIA LIMITED ——– DEFENDANT

REPRESENTATION:

Onuobo for the Claimant
N. Achinihu for the Defendant

JUDGMENT

By a Complaint and Statement of Facts dated and filed on 5^th April, 2016, the Claimant commenced this suit against the Defendant, claiming the following reliefs:

Order for payment of all terminal benefits of the Claimant in the sum of 376, 792.28 (Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira Twenty Eight Kobo).

General damages in the sum of 2, 000, 000 (Two Million Naira) for emotional and psychological trauma suffered by the Claimant.

Upon service of the Originating Processes on the Defendant, the Defendant filed Memorandum of Appearance, Statement of Defence, Witness Statement on Oath, List of Witness and List of Documents all dated and filed on the 6^thof June, 2016. These processes were deemed as properly filed and served on 5^th December, 2017.

The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 5^th of April, 2016 and tendered a total of six (6) documents which were admitted and marked as exhibits CW1, CW2, CW3, CW4A-C, CW5, and CW6A-B. The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel. The Claimant then closed his case on the 5^th of February, 2018, and the matter was adjourned to 5^th March, 2018 for the Defendant to open its Defence.

The Defendant on the other hand called one witness Mrs. Obinaju Ekeanyanwu (the Defendant’s Head of Human Resources/Administration Department) who testified as DW. She adopted the Witness Statement on Oath made on 6^th June, 2016, and tendered 16 documents which were admitted and marked as Exhibits DW1, DW2, DW3, DW4, DW5, DW6, DW7, DW8, DW9, DW10, DW11, DW12, DW13, DW14, DW15 and DW16. The witness was cross-examined by the learned Claimant’s counsel without being re-examined by the learned Defendant’s counsel. The Defendant then closed its case on 24^th of April, 2018.

With the close of the defendant’s case, parties were ordered to file their final written addresses and the case was adjourned for adoption of Final Written Addresses.

When the matter came up for hearing on the 30^th of October, 2018, parties adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was dated and filed on 14^th May, 2018. The Claimant’s Final Written Address on the other hand was dated and filed on 19^th October, 2018, but deemed as having been properly filed and served on 30^th October, 2018. The Defendant also filed a Reply on Points of Law to the Claimant’s Final Written Address dated and filed on 29^th of October, 2018, which was equally adopted by the learned counsel to the Defendant. With the adoption of the parties’ Final Written Addresses, the suit was adjourned for judgment.

THE CASE OF THE CLAIMANT:

It is the case of the Claimant that, he was employed by the Defendant on the 6^th of December, 2010. That the appointment which was on probationary basis was subsequently confirmed vide letter dated 17^th October, 2011.

The Claimant alleges that, while working for the Defendant as a forklift operator/equipment coordinator for a period of four (4) years, he discharged his functions dutifully and never indulged in acts detrimental to the corporate interests of the Defendant. According to the Claimant, because of the nature of the job he carried out for the Defendant, he developed and suffered recurrent/persistent back pain which necessitated him to seek medical treatment at Atinu Critical Care Hospital at 296 Old Refinery Road, Elelenwo, Port Harcourt.

It was further averred by the Claimant that, while he was still undergoing medical treatment, he was given an assignment to carry out and he informed the Defendant that he could not carry out the assignment due to his ill health. That he was subsequently issued a query by the Defendant despite the medical report obtained from the hospital and he answered the query vide document dated 6^th July, 2015.

According to the Claimant, the Defendant terminated his appointment vide letter dated 6^th July, 2015, and instructed him to return all Defendant’s property in his possession. That he returned all Defendant’s property in his possession and signed all relevant documents on the promise that his outstanding terminal benefits as contained in the pay-slip issued to him by the Defendant would be paid to him promptly, but the Defendant has refused, failed and neglected to pay him the said entitlements.

That he consulted his solicitors who wrote to the Defendant letter dated 30^th September, 2015, but the Defendant neither responded to the letter nor paid him his entitlements and this has subjected him to untold hardship, emotional trauma as he has not been able to meet his obligations to his family and other dependants.

DEFENDANT’S CASE:

According the Defendant, the Claimant was employed on 21^st of December, 2012 under Jarander Mooring & Logistics Services Nig. Ltd as a forklift operator reporting to the logistics coordinator. That the Claimant was reissued with a letter of employment in May, 2014 as a forklift/driver, supervisor before Jarander Mooring & Logistics Services Nig Ltd changed its name to Jarander Services Nig Ltd, and the said contract of employment did not make provision for terminal benefit for any staff.

That the Claimant who had a bad record while with the Defendant had been caught severally stealing goods belonging to the Defendant’s customers which led to his suspension from office. The Claimant was later recalled after one month due to pleas from the Claimant’s pregnant wife. That the Claimant had also been reprimanded for reporting to work late and queried for failure to carry out official duty.

It was further averred by the Defendant that, it subjects its staff to yearly medical check-up and by the medical report dated 1^st February, 2015, the Claimant was certified fit and healthy and the Claimant did not suffer any form of sickness known to the Defendant.

According to the Defendant, after the Claimant’s appointment was terminated, himself and other staff that were also terminated were told that, even though they were not entitled to any benefit but out of magnanimity, the Defendant would pay them terminal benefits in two installments due to the financial position of the Defendant at the time.

That the Claimant was contacted vide SMS to pick his cheque for the sum of N200, 000.00 being the first installment of the total terminal benefit of N376, 792.28 and that the balance would be paid after one month, but the Claimant refused to collect the cheque till date insisting that the total sum of N376, 792.28 must be paid to him at once. That one Sunny Godson Aginwa whose appointment was also terminated has collected all his benefits which were paid to him in installments.

The Defendant further stated that, when it received the letter from the Claimant’s solicitors, the Defendant invited the Claimant and his counsel to the Defendant’s office for the purpose of collecting the cheque but they refused to turn up for the meeting and chose to file this suit in court.

That the Defendant is a reputable organization without record of owing terminal benefits of its staff, and the Claimant is therefore not entitled to any damages because he did not suffer any hardship as he personally refused to collect his cheque in the sum of N200, 000.00 covering the first installment since 18^th of December, 2015.

DEFENDANT’S SUBMISSIONS.

The Defendant distilled three (3) issues for determination, to wit:

Whether the Claimant’s failure to file a reply to the Defendant’s statement of defence amounts to an admission of all the material facts stated in the said statement of defence.

Where issue one is resolved in the affirmative, whether the Claimant have(sic) proved his claim for damages.

Whether a claim of damages for emotional and psychological trauma suffered by the Claimant can be claimed as a general damage or special damage which must be specifically pleaded particularized and proved before it can be granted.

The learned counsel to the Defendant who argued issues 1 and 2 together submitted that, a Reply forms part of a Claimant’s pleadings and where the Claimant fails to put up a defence by way of Reply to the Defendant’s case as averred in the Statement of Defence, the Claimant is deemed to have admitted those material facts stated in the Statement of Defence. See Joe V. Co-operative Bank (2003) Vol. 4 M.J.S.C. 171 at 175; Olale V. Ekwelendu (1989) 4 NWLR (Pt. 115) 326; Adeleke V. Aserifa (1990) 3 NWLR (Pt. 136) 94; CAPPA V. Akintilo (2003) 6 M.J.S.C. 62 at 67; Olubodun V. Lawal (2008) 9 M.J.S.C. 1 at 6; and Ughutevbe V. Shonowo (2004) 8 M.J.S.C. 1 at 4.

That in the instant case since the Claimant did not put forward a defence by way of a Reply to the facts stated in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Statement of Defence, the Claimant is deemed or presumed to have admitted those facts. That the Defendant in the circumstance is not required to establish those facts relying on the case of Mozie V. Mbamalu (2006) 11 M.J.S.C. 118 at 121.

That where the court resolves issue 1 in favour of the Defendant as being urged, it means that the Claimant has not proved his relief two as contained in his Statement of Claim and the court should also resolve issue 2 in favour of the Defendant.

On issue 3 learned counsel drew the court’s attention to the cases of Akinkugbe V. Ewulum (2008) 6 M.J.S.C. 134 at 136 and UBN V. Ajabule (2011) 12 (Pt. 11) M.J.S.C. 155 at 159, and argued that, emotional and psychological trauma do not qualify to be claimed as general damages because such loss is sustained in the circumstances of a particular wrong and should therefore qualify as a special damage which must be specifically pleaded, particularized and proved.

That the Claimant’s contention that the Defendant should pay him the sum of N2, 000,000.00 as general damages for emotional and psychological trauma because the Defendant paid him the sum of N200,000.00 out of the total sum of N376,792.28 terminal benefit with a commitment to pay the balance after one month, which the Claimant rejected insisting that the whole sum must be paid to him at once and not in two installments is a surprise to the Defendant.

That the Claimant who admitted under cross-examination that his main claim in this suit is not that his employment was wrongly terminated but that his terminal benefit should be paid to him in full, and that he was issued cheque of N200, 000.00 by the Defendant out of the total sum of N372, 792.28 which he rejected and also that his counsel received Exhibit DW15 has not proved his case to be entitled to relief 2. The court is therefore urged to resolve issue 3 in favour of the Defendant.

The Defendant therefore urges the court to dismiss this suit and order the Defendant to pay the said sum in two installments

CLAIMANT’S SUBMISSIONS

The Claimant submitted one (1) issue for the determination of this court, to wit:

Whether the Claimant has proved his case on the balance of probabilities to be entitled to the relief sought?

On this lone issue, it was submitted that, it is the law that an employee must be paid his entitlements on the date he is served with letter terminating his employment referring to Nigerian Society of Engineers V. Ozah (2015) 6 NWLR (Pt. 1454) 89.

That in the instant case, the Claimant’s employment was terminated on the 10^th of July, 2015 vide exhibit CW4A-C but he was not paid the day he was served with the letter of termination as required by law.

That exhibit DW12 tendered by the Defendant shows that the Defendant failed to pay the Claimant on the date of service of the termination letter. That since DW1 admitted during cross-examination that the Claimant is entitled to terminal benefits, it is immaterial whether or not such terminal benefit is in the letter of employment; and that the Defendant produced exhibit CW6 on the understanding that every confirmed member of staff is entitled to terminal benefits.

It was further submitted that, since the facts allegedly raised in the Defendant’s Statement of Defence were cross-examined on and demolished, the issue of those facts having been admitted is of no moment. That it is in evidence that after the Claimant was investigated on the allegation of stealing, he was recalled to his office as he was not found guilty of the allegation raised against him.

That the position of the law is that where a criminal allegation is raised against an employee, such an employee must be tried in a court of law before any disciplinary action can be taken against him, and any step taken contrary to this legal requirement is a nullity and cannot be acted upon by the court. See Institute of Health V. Anyip (2011) 45 NSCQR, 705. That where allegations of crimes are raised in a civil suit, such criminal allegations must be proved beyond reasonable doubt by the person alleging them referring to Anyanwu V. Uzuoaka (2009) 40 NSCQR, 29 and Ashabi Eya V. Olapade (2011) 46 NSCQR, 399-400.

That since the alleged criminal act of stealing was not reported to the police and the Investigation Report (exhibit DW4) was produced by the Defendant’s Panel and the Defendant was both the accuser and the judge thereby depriving the Claimant his right to fair hearing, the Defendant has failed to establish the criminal allegation beyond reasonable doubt.

It was further argued that, since the Claimant has shown through oral and documentary evidence that he was not issued any cheque upon receipt of the letter of termination of appointment, the Claimant suffered emotional or psychological inconvenience or trauma. That the Claimant is therefore entitled to general damages for being denied his right to attend to some of his needs and obligations to his family and others. That general damage is what the court can infer or presume from proven facts, and the court should presume a loss or inconvenience from the conduct of the Defendant and award general damages in the circumstance.

The court is therefore urged to grant all the Claimant’s prayers since he has proved his case on the balance of probabilities.

DEFENDANT’S REPLY ON POINTS OF LAW:

The Defendant filed a Reply on Points of Law on the 29^th of October, 2018, wherein it was argued that, the case of Nigerian Society of Engineers V. Ozah (supra) cited and relied upon by the Claimant’s counsel does not apply to this case because while in Ozah’s case the appellant merely promised to pay the respondent his entitlement, in the instant case the claimant was actually paid the sum of N200, 000.00 out of the sum of N376, 793.28 but the claimant refused to collect same insisting that he must be paid the whole amount. That the Defendant did not ab initio refuse to pay the Claimant his entitlement because the Claimant even admitted during cross-examination that, the defendant paid him the sum of N200, 000.00 but he refused to collect it on the ground that he must be paid fully and at once.

On the issue of damages, it was submitted that, while the court can grant general damages, emotional and psychological trauma suffered by the Claimant cannot be claimed as general damages but as special damage which requires him to specifically plead and particularize in the Statement of Facts and also prove same by way of evidence but the Claimant failed to do so. That if the Claimant suffered any emotional or psychological trauma at all, it was caused by him and not the Defendant. That the court should not award any damages in favour of the Claimant.

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, I am of the view that the main issue to be considered in this case is whether the Claimant has established his case to be entitled to the reliefs being sought in this suit.

In resolving this single issue, it is important to note that the Claimant’s employment with the Defendant is not in doubt as the Defendant did not deny that the Claimant was its employee. Exhibits CW1, DW1, DW2, and DW3 clearly show that the Claimant was employed by the Defendant as Fork Lift/Driver Supervisor on Job Group 9 with effect from 1^st June, 2014. With all these documentary evidence I have no hesitation in holding that the Claimant has proved the existence of contract of employment relationship between him and the Defendant.

Another point that must be made clear from the onset of this judgment is that, the Claimant’s case before the court is not one challenging the termination of his appointment by the Defendant. In fact, it would seem that the Claimant has accepted the termination of his appointment in good faith. The case of the Claimant simply put is that, having terminated his appointment, the Defendant should pay him the sum of N376, 792.28 (Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo only) as terminal benefits and also the sum of N2, 000, 000.00 (Two Million Naira only) as general damages for emotional and psychological trauma suffered by him.

The learned counsel to the Defendant, C. N. Achinihu Esq. submitted in the Defendant’s Final Written Address that, the Claimant having failed to file Reply in response to the averments in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Statement of Defence, the court should hold that the Claimant has admitted the facts averred in those paragraphs of the Statement of Defence. I cannot completely agree with the learned counsel on this legal position. This is because, while it is the law that where new facts are raised in a Defendant’s Statement of Defence not arising from the facts averred in the Claimant’s Statement of Facts, a Claimant who fails to file a Reply in defence of those new facts would be deemed to have admitted those new facts, it is not necessary to file a Reply if its purpose or aim is solely to deny the allegations in the Statement of Defence. In that case, pleadings would be deemed to have been closed with the filing of the Statement of Defence. See the case of Jackie Phillips V. Eba Odan Commercial and Industrial Company Limited (2012) LPELR-9718(SC).

I do not therefore think the Claimant’s failure to file Reply to the Defendant’s Statement of Defence has any effect on the case of the Claimant before the court.

The Claimant informed the court in his examination –in – Chief that, upon the termination of his appointment on the 6^th of July, 2015, he signed relevant documents on the promise that he would be promptly paid all his outstanding terminal benefits, but that despite demands made on his behalf by his Solicitors, the Defendant has failed to pay him the said entitlements. During cross-examination the Claimant informed the court that he is not in court to challenge the termination of his appointment, but that his terminal benefits should be fully paid to him. That the Defendant called him and issued to him cheque in the sum of N200, 000.00(Two Hundred Thousand Naira Only) out of the total sum of Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo (N376, 792.28K) which he refused to accept insisting that the whole sum must be paid to him.

The testimony of the DW (Mrs. Obinaju Ekeanyanwu) in chief seems not to be at variance with that of the Claimant as she informed the court that due to the difficult economic situation in the country, the Defendant downsized the number of its staff and as a result of the exercise the Claimant and one Sunny Godson Aginwa had their services terminated on the 6^th of July, 2015. That even though going by their letters of appointment they were not to be paid terminal benefits, out of magnanimity the Defendant decided that they should be paid the sum of Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo (N376, 792.28K). That since they could not be paid the whole amount due to economic downturn, they were given chegues of Two Hundred Thousand Naira only (N200, 000.00) each as part payment with the promise to pay the balance within one or two months. That while Sunny Godson Aginwa collected his cheque and has since been paid the balance of the money, the Claimant refused to collect his own cheque despite entreaties from the Defendant insisting that the total sum must be paid to him at once.

During cross-examination DW informed the court that, she never told the court that the Claimant is not entitled to terminal benefits because employees of the Defendant are entitled to terminal benefits, and that the amount computed for payment to the Claimant was never in contention and the Defendant never refused to pay the Claimant.

Since the case of the Claimant before the court is not a challenge on the termination of his appointment as earlier held in this judgment, I do not think the evidence of both the Claimant and the Defendant relating to the conduct or character of the Claimant while in the employment of the Defendant is of any relevance to this suit being one for payment of terminal benefits.

Exhibit CW4A-C is the letter terminating the appointment of the Claimant. Of particular importance is CW1C wherein some amounts were captured under different heads with the sum of Three Hundred and Seventy Six Thousand, Nine Hundred and Forty Three Naira, Ninety Nine Kobo (N376, 943.99) as the total pay due to the Claimant. While Exhibit CW5 on the other hand is a payslip in the sum of Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo (N376, 792.28) as the net pay due to be paid to the Claimant, exhibit CW6A-B is the demand letter written to the Defendant by the Claimant’s Solicitors.

I have equally looked at the exhibits tendered by the Defendant in this suit particularly exhibits DW10 which is the same as the Claimant’s exhibit CW1A-C, exhibit DW11 is a copy of an SMS inviting the Claimant to visit the Defendant for his cheque, exhibit DW12 is the cheque dated 18^th of December, 2015 in the sum of Two Hundred Thousand Naira only (N200,000.00) issued in the name of the Claimant, exhibits DW13 and DW14 are copies of cheques issued by the Defendant to one Aginwa Godson Sunday dated 18^th December, 2015 and 8^th March, 2016 respective. By exhibit DW15 which is a letter from the Defendant in response to exhibit CW6A-B written by the Claimant’s counsel to the Defendant, the Defendant did not state that it would not pay the Claimant but that the Claimant willingly refused to collect the terminal benefits in installments and therefore advised that the Claimant should come forward to collect the said money.

Having evaluated the evidence adduced/produced before the court by the parties, it is pertinent to state the position of the law as righty pointed out by the learned Claimant’s counsel that, upon the termination of appointment terminal benefits and other entitlements of the worker must be paid to him upon being served with the letter of termination of appointment. See Nigerian Society of Engineers V. Mrs. Bimbo Ozah (2015) 6 N.W.L.R. (Part 1454) 76 at 98 paragraph C, where the appellate court held thus:

“The terminal benefits or entitlements of the employee must also be actually paid to the employee on the date the employee is served with the letter of termination of the appointment.”

The Defendant only gave reasons why the Claimant could not be paid his terminal benefits in full when the Claimant’s appointment was terminated. Since the Defendant is not denying that the Claimant is entitled to the amount computed as his terminal benefits, I am of the humble view that the Claimant has proved or established his case before the court to be entitled to judgment. The plea by the Defendant to be allowed to pay the said sum in two installments cannot be granted in the circumstance of this case.

Claimant’s relief ‘a’ for the payment of all terminal benefits of the Claimant in the sum of N376, 792.28 (Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo) is hereby granted.

Relief ‘b’ for general damages in the sum of N2, 000, 000.00 (Two Million Naira Only) for emotional and psychological trauma suffered by the Claimant is hereby refused as the Claimant failed to prove or establish the nature of emotional and psychological trauma suffered by him.

In the final result, the sole issue identified for determination is resolved in favour of the Claimant and his case succeeds in part. Accordingly, and for the avoidance of doubt, the court hereby makes the following orders:

The sum of Three Hundred and Seventy Six Thousand, Seven Hundred and Ninety Two Naira, Twenty Eight Kobo (N376, 792.28) is to be paid to the Claimant by the Defendant as the Claimant’s terminal benefits.

Cost of Two Hundred and Fifty Thousand Naira Only (N250, 000.00) is awarded in favour of the Claimant.

The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% Per annum until it is completely liquidated.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge