IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO
DATED: 3RD JULY, 2019 SUIT NO: NICN/AK/20/2017
BETWEEN
- JOSEPH OLUWASEYI AJAYI CLAIMANT
AND
A-GOLD INTERNATIONAL VENTURES LIMITED DEFENDANT
REPRESENTATION:
OLABANJO AYENAKIN WITH A. O. AJAYI FOR THE CLAIMANT
NO APPEARANCE FOR THE DEFENDANT.
JUDGMENT
The Claimant by a Complaint before this Court on the 16th June, 2017 claims against the Defendant as follows:
- A DECLARATION that claimant is entitled to be paid his arrears of four month salary being N240,000.00 (Two Hundred and Forty Thousand Naira) which the defendant is owing him which said sum remains unpaid.
- AN ORDER directing on the defendant to pay the claimant his arrears of four months’ salary being N240,000.00 (Two Hundred and Forty Thousand Naira).
- N1,000,000.00 (One Million Naira) as general damages against the defendant for the psychological trauma suffered by the claimant as a result of the defendant act of withholding his salaries.
The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witness and documents to be relied upon, while the Defendant filed only a conditional memorandum of appearance on the 29th September, 2017, and later raised an objection on the jurisdiction of the court to adjudicate in this case. This was over-ruled on the 28th of November, 2017 whereafter the defendant failed to file any other process in this suit. The case suffered several adjournments in an effort to resolve the matter amicably, parties however failed to reach any consensus and the defendant absented himself thereafter from court. The case proceeded to hearing and the claimant was called upon to open his case.
The Claimant’s case is that he was offered employment by the defendant vide an offer letter dated 20th March, 2015 with a salary package of N25,000.00 (Twenty Five Thousand Naira) per month and by a letter dated 15th June, 2015, he was elevated to the post of Manager Akure Main Branch, and his salary was increased to N60,000.00 (Sixty Thousand Naira) per month. Later, he was transferred to the defendant’s Lagos Branch as Manager, from where he resigned his appointment vide a letter of resignation dated 7th April, 2017, effective 7th of May, 2017.
Claimant averred that upon his resignation, he returned his official car and other assets of the defendant at his disposal. He further averred that the defendant is owing him four months’ salary totalling N240,000.00k (Two Hundred and Forty Thousand Naira) at the time of his resignation.
The claimant stated that he wrote the defendant through his solicitor demanding for his outstanding salary arrears to no avail and he suffered a lot of hardship and psychological trauma due to the action of the defendant as he was unable to meet his financial obligations.
WHEREOF he claims against the defendant as aforestated.
Trial in this case commenced on 31st January, 2018 with the claimant Mr Joseph Oluwaseyi Ajayi testifying on behalf of himself as CW1. He adopted his witness statement on oath and tendered several exhibits which were admitted and marked Exhibits JJ1 – JJ6. He thereafter closed his case.
The case was adjourned for cross examination of CW1 by the defendant, and the defendant was foreclosed from cross-examining CW1 on the 23rd of April, 2018, after failing to appear after another adjournment. The defendant’s counsel put in an appearance on the 3rd of May, 2018, and informed the court that parties are willing to settle and took an adjournment to file terms. The case was again adjourned on three different occasions with the defendant failing to put in an appearance as a result of which the case was adjourned for defence on the 17th of October, 2018 and on two different occasions due to the absence of the defendant and its counsel thereafter. The defendant was foreclosed from its defence on the 14th of January, 2019, consequent upon which the case was adjourned for the adoption of final written address. It is on record that hearing notices were served on the defendant throughout the hearing but the defendant elected to stay away from the court. The claimant’s counsel eventually adopted his final written address on the 10th of April, 2019, and the case was adjourned for judgment.
The claimant in his final written address filed on the 7th February, 2019, formulated a sole issue for determination to wit:
“Whether in view of the evidence before this court, the claimant is entitled to the relief sought”
Olabanjo Ayenakin Esq of Counsel for the claimant submitted that in view of the pleadings, oral evidence and documentary evidence before the court, the claimant is entitled to the reliefs sought. He submitted that the defendant failed and refused to file a statement of defence in this suit and posited that in law, where the averments in pleadings are unchallenged, they are deemed admitted. He cited the case of Odiba V. Azege (1991) 7 NWLR (Pt. 206) 724 at 733.
Counsel submitted that despite the service of several hearing notices, the defendant chose to ignore the said notices and absented itself from the proceedings, he also failed to call any witness or cross-examine the claimant.
He argued that the claimant, during trial led evidence that before he resigned, he was on a salary of N60,000.00k (Sixty Thousand Naira) per month and the defendant is owing him his salary for four months. He stated that none of these facts was challenged by the defendant, and so the court can act on the unchallenged evidence. He relied on M.W.T. (Nig) Ltd v. P.S.T.F. (2008) All FWLR (439) 515 R8; Nzeribe v. Anyim (2009) All FWLR (pt 488) 381.
On general damages claimant’s counsel pointed out that the claimant led evidence that he suffered a lot of hardship and psychological trauma as he was unable to meet his financial obligations. He cited the case of Mobil Producing Nig. V. Udo (2009) All FWLR (pt 482) 1184, and urged the court to grant this relief.
Learned counsel for the claimant stated that the claimant has successfully proved his case as required by law, as the burden of proof in civil cases is on the preponderance of evidence. The implication is that the burden of proof merely requires the party alleging or asserting a fact to prove the fact. He cited the case of Miss Chinenye M. Ezeanah V. Mahmoud I. A. Attah (2004) 2 SCM 137, and stated the position of law is that where a party has successfully proved his case by leading evidence, the burden will shift to the defendant. He relied on Oguejiofor v. Siemens Ltd (2008) ALL FWLR Pt. 398, 378 R.3.
He reiterated that in the absence of any evidence by the defendant, the evidence adduced by the claimant is deemed admitted and proved. He finally urged the court to grant the claims of the claimant on its merit.
I have carefully scrutinised the processes and written address filed by Claimant’s counsel, I have also listened to the testimony of the claimant in proof of his case and I have come up with a sole issue that will best determine this suit to wit;
“Whether or not the Claimant is entitled to his claim”
It is trite that the contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. See F.M.C Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt.1285) 411 CA.
The claimant is seeking an order of this court directing the defendant to pay him the four months arrears of his salary that remains unpaid after his resignation. In proof thereof, he tendered Exhibits JJ1-JJ6:
- Exhibit JJ1 – Letter of Appointment dated 20th of March, 2015.
- Exhibit JJ2 – Re-assignment Letter dated 15th of June, 2015.
iii. Exhibit JJ3 – Re-deployment Letter to Lagos dated 7th of March, 2016.
- Exhibit JJ4 – Internal memo on Notification of salary increment dated 25th of November, 2016.
- Exhibit JJ5 – Letter of Resignation dated 7th of April, 2017.
- Exhibit JJ6 – Letter of demand dated 3rd of May, 2017.
He also testified that his last paid salary is N60,000.00k (Sixty Thousand Naira) per month, and the total sum for the four months’ salary he is claiming is N240,000.00k (Two Hundred and Forty Thousand Naira). The claimant is also claiming a sum of N1,000,000.00k (One Million Naira) as general damages for the hardship and psychological trauma he went through as a result of the action of the defendant.
I find that in the absence of any defence by the defendant, the case of the claimant is deemed admitted, un-contradicted and uncontroverted. It is on record that the defendant in this suit was afforded several opportunities to defend this suit but elected otherwise. The claimant has satisfied the burden of proof placed on him which is minimal, by his testimony and Exhibits tendered in the instant suit.
It is pertinent to note that by the rules of this court when a defendant fails to defend an action, the court may proceed to hear the matter and give judgment. See Order 9 rule 5 (1) of the National Industrial Court (Civil Procedure) Rules, 2017 which provides as follows:
“Where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment.”
The claimant is therefore entitled to judgment in this case from the preponderance of the evidence adduced in this suit. I so hold.
A perusal of the reliefs sought by the claimant reveals that relief one is seeking a declaration that he is entitled to be paid the arrears of his four month salary of N240,000.00 (Two Hundred and Forty Thousand Naira). The claimant relied on his testimony and the letter of demand by his solicitor i.e. Exhibit JJ6.
The position of the law is stated in Governor of Zamfara State & Ors v. Gyalange & Ors [2012] LPELR-9715 (SC) where the Supreme Court per Mukhtar, J.S.C held:
“The settled law is that evidence that is neither attacked nor successfully challenged is deemed to have been admitted and the court can safely rely on the evidence in the just determination of a case.”
It is also the position of the law that no matter how manifestly unreliable or weak the case of the defence may be, for the plaintiff to succeed in his claim, he has the primary function of convincing the court that he has a good case. Whether a defendant adduces or does not adduce any evidence at the trial, that fundamental and primary burden which the law at the onset, places on a plaintiff, who wishes to succeed in his claim, remains. See the case of Alibe v. Yaro [2002] 1 NWLR (Pt.747) 238.
In Musa & Anor v. Abdulahhi & Ors [2008] LPELR-4562 the Court of Appeal per Omoleye, J.C.A held:
“For in law, failure of a defendant to prove or even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his claim….”
see also the case of Kwande & Anor v. Mohammed & Ors [2014] LPELR-22575 (CA).
The law is that claim for salaries are in the nature of special damages. The Court of Appeal per Tsammani, J.C.A. in Adekunle v. UBA Plc. [2016] LPELR-41124 (CA) held as follows:
“The law is that, claims for salaries, allowances, bonuses, emoluments, etc are in the nature of special damages. Like in all claims for special damages, they need to be pleaded with particulars and evidence led thereon before they could be granted. In other words, such claims need be strictly proved….”
However in Alhassan & Ors v. Ishaku & Ors [2016] LPELR- 40083 (SC) the Supreme Court per Sanusi, J.S.C held:
“It is trite and well settled law, that where a party admits a fact in issue such fact in issue does not require any proof again. The courts do not need the proof of fact already admitted and further dispute if such facts should not be entertained since admission is the strongest and highest of the fact in issue.”
The claimant by Exhibit JJ4 revealed his monthly salary of N60,000.00k (Sixty Thousand Naira) per month while he was with the defendant, he also tendered Exhibits JJ1- JJ3 in proof of the employment relationship between the parties, while Exhibit JJ6 is a letter of demand written by the claimant’s solicitor to the defendant for the arrears of his salaries, the subject matter of this suit, the totality of the evidence tilts in favour of the claimant, consequent upon which I find that the claimant is entitled to his arrears of four months’ salary in the sum of N240,000.00 (Two Hundred and Forty Thousand Naira) as captured in the claim. This relief therefore succeeds. I so hold.
Relief 2 is for an order directing the defendant to pay the claimant his arrears of four months’ salary at a sum total of N240,000.00k (Two Hundred and Forty Thousand Naira). Having held earlier in this judgment that relief 1 above succeeds, I hold that this relief also succeeds.
Relief 3 is for a sum of N1,000,000.00 (One Million Naira) as general damages to be awarded against the defendant for the psychological trauma and hardship suffered by the claimant as a result of the action of the defendant.
In United Bank for Africa Plc. V. Eye-Gymineral Resources Ltd & Anor [2009] LPELR-8382 (CA) the Court of Appeal Per Bage, J.C.A held thus;
“Also to succeed on the claim for mental and psychological trauma, medical evidence in proof of the mental distress is not by itself sufficient damage to ground an action”
In the above cited suit, the court of Appeal denied a claim for mental distress despite medical evidence to that effect. How much more in the instant suit where the claimant did not adduce any evidence in proof of the psychological trauma he suffered.
I find therefore that this relief fails. I so hold.
In conclusion, the claims succeed in part and for the avoidance of doubt, I hereby declare and order as follows;
- The claimant is entitled to be paid his arrears of four months’ salary of N240,000.00k (Two Hundred and Forty Thousand Naira) by the defendant.
- The defendant is to pay to the claimant a sum of N240,000.00 (Two Hundred and Forty Thousand Naira) as arrears of his salary for four months.
- All monetary sums awarded in this judgment are to be paid within 30 days failure upon which attracts 21% interest per annum.
- The claim for general damages fails.
A cost of N100,000.00 (One Hundred Thousand Naira) is awarded in favour of the Claimant to be paid by the defendant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
